Mr. Chairman, distinguished members of the committee:
My name is Roger Pilon. I am a senior fellow at the Cato Institute and the director of Cato’s Center for Constitutional Studies.
I want to begin by thanking the committee for inviting me to testify on H.J. Res. 174, a proposed constitutional amendment to protect the rights of victims of crime. I am especially grateful that you have allowed me to submit a written statement in lieu of oral testimony as I have been unable to adjust my schedule to appear in person.
Although I am opposed to the proposed amendment, I want to make it very clear at the outset that I am in complete agreement with its larger aims. We need to do far more than we have traditionally done in this Nation to help the victims of crime. For both constitutional and practical reasons, however, this amendment is not the best way to accomplish those ends.
Amending the Constitution is a serious matter. Clearly, the provisions of Article V that enable us to do so were put there to be used. But just as clearly, experience has taught us that those provisions are to be used only when circumstances plainly warrant it. When other, more flexible means are available to accomplish desired ends—especially when those means may need to be refined in light of experience—prudence alone suggests that we not lock such means in our basic law, the Constitution.
In the case at hand, state and local governments have been moving for some time to better provide for the victims of crime. And at the federal level, every aim of this amendment can be accomplished—with equal effect and greater flexibility—by statute. Thus, there is no compelling reason to accomplish such ends through constitutional amendment. On the contrary, when they can be better accomplished through ordinary legislation, that is the route to take.
It is argued, however, that constitutionalizing the rights of victims of crime will give those rights a stature they otherwise would not have. That is true, but the argument must be weighed in light of both the larger constitutional design and some of the foreseeable implications of following the argument.
With regard to the first of those concerns, the Constitution, at bottom, is a document of delegated, enumerated, and thus limited powers. Notwithstanding the growth of federal power over the 20th century, the federal government has only those powers that the people, through the Constitution, have delegated to it, as enumerated in the document. That point is made clear in the very first sentence after the Preamble. It is reiterated in the very last member of the Bill of Rights, the Tenth Amendment.
By constitutional design, therefore, most power in this Nation rests with the states or with the people—even if today the design has been seriously compromised. The power to investigate and prosecute common law crimes—and to secure our rights against such crimes—is a case in point. Under our federal system, the Framers left such power almost entirely with the states. Thus, there is no constitutional authority for the vast growth of federal power over crime that we have seen over the course of this century—a point the Supreme Court revived only a year ago in the Lopez case, and many in Congress are making, by implication, in a number of bills they have introduced during this session.
It is not a little anomalous, therefore, to have an amendment to the Constitution addressing the rights of victims of crime when there is so little federal power to begin with to address the problem of crime. It would be one thing if the federal government, as at the state level, were required to attend to the rights of victims in connection with its general police power. But there is no general federal police power, as the Lopez Court made clear. This amendment has about it, then, the air of certain European, especially Eastern European, constitutions, which list “rights” not as liberties that government must respect as it goes about its assigned functions but as “entitlements” that government must affirmatively provide. We have thus far resisted that tradition in this Nation. It would be unfortunate if we should begin it through this “back door,” as it were.
But if the absence of any general federal police power makes this amendment anomalous, still other implications for federalism are even more clear. By constitutionalizing certain “minimal” standards in this area, for example, the amendment would preclude states from experimenting in ways that might fall below the minimum. Moreover, it appears from the language of section 2 of the amendment that Congress would have the power to mandate states to take measures to implement the provisions of section 1, which amounts to nothing less than constitutionalizing a number of “unfunded mandates.” If Congress has no such power, however, then the amendment may amount to an empty promise.
Finally, as a structural matter, such rights as are found in our Constitution, either enumerated or unenumerated, are invoked ordinarily when some governmental action either proceeds without authority (e.g., Lopez) or in violation of a recognized right (e.g., any authorized action that implicates rights of speech or religion). Thus, the putative authority of the government is pitted against the putative right of the individual or organization (to be free from such action, or from such an application of an otherwise authorized action).
Here, however, we have a three-way relationship, which raises havoc with our traditional adversarial system. How, for example, do we resolve the potential conflicts among the authority of the state to prosecute, the right of the accused to a speedy but fair trial, and the right of the victim to “a speedy trial, and final conclusion free from unreasonable delay”? If judicial “balancing” poses serious jurisprudential problems in our adversarial system today—and it does—then those problems will be only exacerbated under this amendment. Better to leave things as they now are, with victims entitled to civil actions against wrongdoers—and the state entitled to a separate criminal action in the name of the people. Better still to place the civil action first in time and priority—the better to truly recognize the primacy of the rights of the victim. After all, the injury to the people pales in comparison to the injury to the victim.
This leads quite naturally to the second concern noted above. Many of the practical implications of this amendment are of course unknowable without some experience trying to operate under it. But some problems are clear now, such as the just-mentioned potential for conflicting constitutional rights and powers. Since testimony in the Senate has already raised a number of such problems, let me conclude with but one concern.
Clearly, rights without remedies are worse than useless: they are empty promises that in time undermine confidence in the very document that contains them—the United States Constitution, in this case. But a remedy is ordinarily realized through litigation. Before this amendment goes any further, therefore, it is incumbent upon those who support it to show how victims will or might litigate to realize their rights, and what their doing so implies for other rights in our constitutional system. I can imagine several scenarios under this amendment, none of which is clear, all of which—by virtue of being constitutionalized—will make the plight of victims not better but worse. Over the course of this century we have already made enough work for lawyers. We do not need now to make more—at the expense of those for whom the system has already failed once.