H.J. Res. 174: Crime Victims Amendment

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Mr. Chairman, distinguished members of the committee:

My name is Roger Pilon. I am a senior fellow at the CatoInstitute and the director of Cato's Center for ConstitutionalStudies.

I want to begin by thanking the committee for inviting me totestify on H.J. Res. 174, a proposed constitutional amendment toprotect the rights of victims of crime. I am especially gratefulthat you have allowed me to submit a written statement in lieu oforal testimony as I have been unable to adjust my schedule toappear in person.

Although I am opposed to the proposed amendment, I want to makeit very clear at the outset that I am in complete agreement withits larger aims. We need to do far more than we have traditionallydone in this Nation to help the victims of crime. For bothconstitutional and practical reasons, however, this amendment isnot the best way to accomplish those ends.

Amending the Constitution is a serious matter. Clearly, theprovisions of Article V that enable us to do so were put there tobe used. But just as clearly, experience has taught us that thoseprovisions are to be used only when circumstances plainly warrantit. When other, more flexible means are available to accomplishdesired ends--especially when those means may need to be refined inlight of experience--prudence alone suggests that we not lock suchmeans in our basic law, the Constitution.

In the case at hand, state and local governments have beenmoving for some time to better provide for the victims of crime.And at the federal level, every aim of this amendment can beaccomplished--with equal effect and greater flexibility--bystatute. Thus, there is no compelling reason to accomplish suchends through constitutional amendment. On the contrary, when theycan be better accomplished through ordinary legislation, that isthe route to take.

It is argued, however, that constitutionalizing the rights ofvictims of crime will give those rights a stature they otherwisewould not have. That is true, but the argument must be weighed inlight of both the larger constitutional design and some of theforeseeable implications of following the argument.

With regard to the first of those concerns, the Constitution, atbottom, is a document of delegated, enumerated, and thus limitedpowers. Notwithstanding the growth of federal power over the 20thcentury, the federal government has only those powers that thepeople, through the Constitution, have delegated to it, asenumerated in the document. That point is made clear in the veryfirst sentence after the Preamble. It is reiterated in the verylast member of the Bill of Rights, the Tenth Amendment.

By constitutional design, therefore, most power in this Nationrests with the states or with the people--even if today the designhas been seriously compromised. The power to investigate andprosecute common law crimes--and to secure our rights against suchcrimes--is a case in point. Under our federal system, the Framersleft such power almost entirely with the states. Thus, there is noconstitutional authority for the vast growth of federal power overcrime that we have seen over the course of this century--a pointthe Supreme Court revived only a year ago in the Lopezcase, and many in Congress are making, by implication, in a numberof bills they have introduced during this session.

It is not a little anomalous, therefore, to have an amendment tothe Constitution addressing the rights of victims of crime whenthere is so little federal power to begin with to address theproblem of crime. It would be one thing if the federal government,as at the state level, were required to attend to the rights ofvictims in connection with its general police power. But there isno general federal police power, as the Lopez Court madeclear. This amendment has about it, then, the air of certainEuropean, especially Eastern European, constitutions, which list"rights" not as liberties that government must respect as it goesabout its assigned functions but as "entitlements" that governmentmust affirmatively provide. We have thus far resisted thattradition in this Nation. It would be unfortunate if we shouldbegin it through this "back door," as it were.

But if the absence of any general federal police power makesthis amendment anomalous, still other implications for federalismare even more clear. By constitutionalizing certain "minimal"standards in this area, for example, the amendment would precludestates from experimenting in ways that might fall below theminimum. Moreover, it appears from the language of section 2 of theamendment that Congress would have the power to mandate states totake measures to implement the provisions of section 1, whichamounts to nothing less than constitutionalizing a number of"unfunded mandates." If Congress has no such power, however, thenthe amendment may amount to an empty promise.

Finally, as a structural matter, such rights as are found in ourConstitution, either enumerated or unenumerated, are invokedordinarily when some governmental action either proceeds withoutauthority (e.g., Lopez) or in violation of a recognizedright (e.g., any authorized action that implicates rights of speechor religion). Thus, the putative authority of the government ispitted against the putative right of the individual or organization(to be free from such action, or from such an application of anotherwise authorized action).

Here, however, we have a three-way relationship, which raiseshavoc with our traditional adversarial system. How, for example, dowe resolve the potential conflicts among the authority of the stateto prosecute, the right of the accused to a speedy but fair trial,and the right of the victim to "a speedy trial, and finalconclusion free from unreasonable delay"? If judicial "balancing"poses serious jurisprudential problems in our adversarial systemtoday--and it does--then those problems will be only exacerbatedunder this amendment. Better to leave things as they now are, withvictims entitled to civil actions against wrongdoers--and the stateentitled to a separate criminal action in the name of the people.Better still to place the civil action first in time andpriority--the better to truly recognize the primacy of the rightsof the victim. After all, the injury to the people pales incomparison 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 courseunknowable without some experience trying to operate under it. Butsome problems are clear now, such as the just-mentioned potentialfor conflicting constitutional rights and powers. Since testimonyin the Senate has already raised a number of such problems, let meconclude with but one concern.

Clearly, rights without remedies are worse than useless: theyare empty promises that in time undermine confidence in the verydocument that contains them--the United States Constitution, inthis case. But a remedy is ordinarily realized through litigation.Before this amendment goes any further, therefore, it is incumbentupon those who support it to show how victims will or mightlitigate to realize their rights, and what their doing so impliesfor other rights in our constitutional system. I can imagineseveral scenarios under this amendment, none of which is clear, allof which--by virtue of being constitutionalized--will make theplight of victims not better but worse. Over the course of thiscentury we have already made enough work for lawyers. We do notneed now to make more--at the expense of those for whom the systemhas already failed once.

Roger Pilon

Committee on the Judiciary
United States House of Representatives