With the high-profile murder of Laci Peterson and her unborn son, Conner, President Bush hit the stump to urge Congress to pass the Unborn Victims of Violence Act, a bill that would make harming or killing a fetus during the commission of certain federal crimes an additional no-no.
Many states, such as California -- as Scott Peterson has discovered the hard way -- currently have such provisions, allowing prosecutors to stick it to suspects while offering a measure of justice to oft-disregarded members of our society. Supportive of such statutes, the bill's sponsor, Sen. Mike DeWine, R-Ohio, says there ought to be a federal law, as well.
"As a civilized society, we must take a stand against violent crimes against children -- especially those waiting to be born," said DeWine when introducing the measure on the Senate floor last week.
There is much to be said for such a law. But it does not deserve unquestioning support.
The U.S. legal system was designed to be decentralized. Proposals for any federal crimes beyond those delineated in the Constitution should cause brows across the republic to elevate at least a skosh.
"There is one transcendent advantage belonging to the province of the State governments which alone suffices to place the matter in a clear and satisfactory light," notes Hamilton in Federalist 17. "I mean the ordinary administration of criminal and civil justice."
What was out of the ordinary, as far as the founders were concerned? Not much.
"The Constitution only gives criminal justice powers over certain, limited areas," said Independence Institute scholar David Kopel in an interview. Limited, indeed. The Constitution mentions just three federal crimes: counterfeiting, piracy and treason.
Beyond this, Congress is empowered by the necessary and proper clause to create criminal categories for, say, nefarious deeds conducted on federal property -- besides the usual things like the budget allocation for Tom Daschle's Senate office space. But anything not covered by this, as Kopel notes, is "overfederalization," a direct ribshot to the 10th Amendment, which gives states sovereign control over criminal matters.
One immediate problem here is the creation of duplicate criminal statutes, overlapping layers of law that target roughly the same naughty behaviors, thereby possibly creating two sets of prosecutors going after the same guy for the same crime.
Maintaining legal fictions that keep such occurrences from becoming violations of the Fifth Amendment's protection against double jeopardy has been easy with complicit judges. Says Kopel, "Courts have eviscerated the double jeopardy clause, basically saying that if there is another sovereign, and there's one point of difference in the law[s between them], a second prosecution can be brought. I think that's clearly wrong and serves to nullify the double jeopardy protection."
Other problems exist as well.
Recently in Maryland, a federal prosecutor tried to beat a local counterpart to the punch in a murder trial. But instead of trying the suspect for murder, the fed wanted to try him for the only applicable federal law in the case -- extortion. The family of the victim was outraged, and the local prosecutor appealed to the Justice Department, which responded by saying the dueling prosecutors should come to an "agreeable plan" between them. In other words, the fed had the right to press his case if he wanted.
He finally relented, but not because he had a late-night Founding-Fathers epiphany while sipping a Sam Adams. His position just looked bad in the press.
In another recent Maryland case, the same federal prosecutor picked up a local murder mainly because a federal jury could drop a bigger hammer on the suspect than state law.
Conservatives might be tempted to defend the federalization of criminal law based on such cases: See! The state law couldn't cut it. To get justice, sometimes people have to go to the feds. Resist the temptation. The problems with restrictive Maryland law only prove that Maryland law should be fixed, not that the feds should get involved. To go that route justifies the increasing federal involvement in all criminal areas and does violence to the founders' vision.
The Unborn Victims of Violence Act is benign enough that it might not matter much in grand scheme of Leviathan's bulging girth. It only adds greater penalty to existing federal criminal law, but it is part of a growing move to softly swaddle the republic in ever-tightening strands of federal control.
During the Clinton years, calls for more federal crimes were more frequent than reports of the president's infidelities. Black churches burn down, and suddenly state arson laws aren't enough; we need federal laws. A gay man is brutally murdered, and suddenly the state homicide law doesn't count; we need federal anti-hate statutes (never mind that a state law against murder is implicitly an anti-hate law; murder isn't nice). Such laws went beyond the constitutional pale and should have been opposed.
They were. But the trouble is, as dissenters turn proponents, even for well-meaning causes, they hack away at their own legitimacy to stand astride the next federal intrusion when it comes barreling into town, sideswiping constitutional principles all the way.
Our only defense will be in the unconvincing claim that our violations of the national charter are better for the country than the other guy's.
Joel Miller (firstname.lastname@example.org) is senior editor of WND Books.
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