Date: Wed, 2 May 2001 08:37:08 -0700
From: apfanning@yahoo.com (" Alan Fanning")
Subject: [lpaz-repost] Ron Paul on the Unborn Victims of Violence Act
To: lpaz-repost@yahoogroups.com
http://www.house.gov/paul/congrec/congrec2001/cr042601C.htm
April 26, 2001
Statement on the Unborn Victims of Violence Act
Mr. PAUL. Mr. Speaker, while it is the independent duty of each branch of
the Federal Government to act Constitutionally, Congress will likely
continue to ignore not only its Constitutional limits but earlier criticisms
from Chief Justice William H. Rehnquist, as well.
The Unborn Victims of Violence Act of 2001, H.R. 503, would amend title
18, United States Code, for the laudable goal of protecting unborn children
from assault and murder. However, by expanding the class of victims to which
unconstitutional (but already-existing) Federal murder and assault statutes
apply, the Federal Government moves yet another step closer to a national
police state.
Of course, it is much easier to ride the current wave of federalizing
every human misdeed in the name of saving the world from some evil than to
uphold a Constitutional oath which prescribes a procedural structure by
which the nation is protected from what is perhaps the worst evil,
totalitarianism. Who, after all, wants to be amongst those members of
Congress who are portrayed as soft on violent crimes initiated against the
unborn ?
Nevertheless, our Federal Government is, constitutionally, a government
of limited powers. Article one, section eight, enumerates the legislative
areas for which the U.S. Congress is allowed to act or enact legislation.
For every other issue, the Federal Government lacks any authority or consent
of the governed and only the State governments, their designees, or the
people in their private market actions enjoy such rights to governance. The
tenth amendment is brutally clear in stating ``The powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people.'' Our Nation's
history makes clear that the U.S. Constitution is a document intended to
limit the power of central government. No serious reading of historical
events surrounding the creation of the Constitution could reasonably portray
it differently.
However, Congress does more damage than just expanding the class to whom
Federal murder and assault statutes apply--it further entrenches and
seemingly concurs with the Roe v. Wade decision (the Court's intrusion into
rights of States and their previous attempts to protect by criminal statute
the unborn's right not to be aggressed against). By specifically exempting
from prosecution both abortionists and the mothers of the unborn (as is the
case with this legislation), Congress appears to say that protection of the
unborn child is not only a Federal matter but conditioned upon motive. In
fact, the Judiciary Committee in marking up the bill, took an odd legal turn
by making the assault on the unborn a strict liability offense insofar as
the bill does not even require knowledge on the part of the aggressor that
the unborn child exists. Murder statutes and common law murder require
intent to kill (which implies knowledge) on the part of the aggressor. Here,
however, we have the odd legal philosophy that an abortionist with full
knowledge of his terminal act is not subject to prosecution while an
aggressor acting without knowledge of the child's existence is subject to
nearly the full penalty of the law. (Withrespect to only the fetus, the
bill exempts the murderer from the death sentence--yet another diminution of
the unborn's personhood status and clearly a violation of the equal
protection clause.) It is
becoming more and more difficult for congress and the courts to pass the
smell test as government simultaneously treats the unborn as a person in
some instances and as a non-person in others.
In his first formal complaint to Congress on behalf of the federal
Judiciary, Chief Justice William H. Rehnquist said ``the trend to federalize
crimes that have traditionally been handled in state courts . . . threatens
to change entirely the nature of our Federal system.'' Rehnquist further
criticized Congress for yielding to the political pressure to ``appear
responsive to every highly publicized societal ill or sensational crime.''
Perhaps, equally dangerous is the loss of another Constitutional
protection which comes with the passage of more and more federal criminal
legislation. Constitutionally, there are only three Federal crimes. These
are treason against the United States, piracy on the high seas, and
counterfeiting (and, because the constitution was amended to allow it, for a
short period of history, the manufacture, sale, or transport of alcohol was
concurrently a Federal and State crime). ``Concurrent'' jurisdiction crimes,
such as alcohol prohibition in the past and federalization of murder today,
erode the
[Page: H1637] GPO's PDF
right of citizens to be free of double jeopardy. The fifth amendment to the
U.S. Constitution specifies that no ``person be subject for the same offense
to be twice put in jeopardy of life or limb . . .'' In other words, no
person shall be tried twice for the same offense. However, in United States
v. Lanza, the high court in 1922 sustained a ruling that being tried by both
the Federal Government and a State government for the same offense did not
offend the doctrine of double jeopardy. One danger of unconstitutionally
expanding the Federal criminal justice code is that it seriously increases
the danger that one will be subject to being tried twice for the same
offense. Despite the various pleas for federal correction of societal
wrongs, a national police force is neither prudent nor constitutional.
Occasionally the argument is put forth that States may be less effective
than a centralized Federal Government in dealing with those who leave one
State jurisdiction for another. Fortunately, the Constitution provides for
the procedural means for preserving the integrity of State sovereignty over
those issues delegated to it via the tenth amendment. The privilege and
immunities clause as well as full faith and credit clause allow States to
exact judgments from those who violate their State laws. The Constitution
even allows the Federal Government to legislatively preserve the procedural
mechanisms which allow States to enforce their substantive laws without the
Federal Government imposing its substantive edicts on the States. Article
IV, Section 2, Clause 2 makes provision for th rendition of fugitives from
one State to another. While not self-enacting, in 1783 Congress passed an
act which did exactly this. There is, of course, a cost imposed upon States
in working with one another rather than relying on a national, unified
police force. At the same time, there is a greater cost to centralization of
police power.
It is important to be reminded of the benefits of federalism as well as
the cost. There are sound reasons to maintain a system of smaller,
independent jurisdictions--it is called competition and, yes, governments
must, for the sake of the citizenry, be allowed to compete. We have obsessed
so much over the notion of ``competition'' in this country we harangue
someone like Bill Gates when, by offering superior products to every other
similarly-situated entity, he becomes the dominant provider of certain
computer products. Rather than allow someone who serves to provide value as
made obvious by their voluntary exchanges in the free market, we lambaste
efficiency and economies of scale in the private marketplace. Curiously, at
the same time, we further centralize government, the ultimate monopoly and
one empowered by force rather than voluntary exchange.
When small governments becomes too oppressive with their criminal laws,
citizens can vote with their feet to a ``competing'' jurisdiction. If, for
example, one does not want to be forced to pay taxes to prevent a cancer
patient from using medicinal marijuana to provide relief from pain and
nausea, that person can move to Arizona. If one wants to bet on a football
game without the threat of government intervention, that person can live in
Nevada. As government becomes more and more centralized, it becomes much
more difficult to vote with one's feet to escape the relatively more
oppressive governments. Governmental units must remain small with ample
opportunity for citizen mobility both to efficient governments and away from
those which tend to be oppressive. Centralization of criminal law makes such
mobility less and less practical.
Protection of life (born or unborn ) against initiations of violence is
of vital importance. So vitally important, in fact, it must be left to the
States' criminal justice systems. We have seen what a legal, constitutional,
and philosophical mess results from attempts to federalize such an issue.
Numerous States have adequately protected the unborn against assault and
murder and done so prior to the Federal Government's unconstitutional
sanctioning of violence in the Roe v. Wade decision. Unfortunately, H.R. 503
ignores the danger of further federalizing that which is properly reserved
to State governments and, in so doing, throws legal philosophy, the
Constitution, the Bill of Rights, and the insights of Chief Justice
Rehnquist out with the baby and the bathwater.
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