- The Washington Times - Tuesday, February 15, 2000

What keeps our Constitution sacred and accessible to the ordinary citizen is majestic brevity and a confinement to essentials.
Amendments should thus be limited to issues of great and enduring moment that cannot be safely entrusted to popular majorities. The pending Victims' Rights Amendment, under active consideration by the House and Senate and lukewarmly supported by the Clinton administration, falls short of that historically exacting standard.
The amendment, House Joint Resolution 64, would dictate an array of victims' rights in federal or state criminal or auxiliary proceedings. The motivation is irreproachable: to guarantee crime victims a minimum opportunity to be heard or to be otherwise involved when the disposition of their predators is in question. But good motivation, without more, does not justify a constitutional coronation. If it did, the 1964 Civil Rights Act, the 1965 Voting Rights Act, the 1968 Fair Housing Act, Title IX of the Higher Education Act, the American With Disabilities Act, and an endless list of companion federal laws would be elevated to constitutional status and the document would smack more of Edward Gibbon's "Decline and Fall of the Roman Empire" than of Lincoln's Gettysburg Address.
VRA crusaders have cobbled together an assortment of unpersuasive reasons for their constitutional cause, as though adding zero to zero repetitively may eventually equal something. It is said criminal defendants and prisoners enjoy constitutional rights that trump victims' rights enumerated in scores of statutes and state constitutions. But nothing in the constitutional text or United States Supreme Court precedents even hints at a conflict with victims' rights that command lower statutory status: the right to notice and to have views considered in prosecutorial, sentencing, parole, or commutation decisions and to attend criminal trials. Amendment proponents have searched in vain for a single court decision that supports their fretting.
Crime victims have demonstrated stunning success in majoritarian politics who need no constitutional protection from potentially hostile legislation. As a chief sponsor of the Amendment, Rep. Steve Chabot, Ohio Republican, testified last Thursday before the House Judiciary Subcommittee on the Constitution, "In 1982, California became the first state to pass a Victims' Rights Amendment to its constitution. Since that time, 32 states, including my home state of Ohio, have passed similar amendments … ratified [by an average of] 79 percent of the vote in state-wide referendums."
That is no surprise. Crime victims evoke almost universal sympathy, and no one campaigns boasting, "I will vote against victims' rights."
Amendment apostles also urge that state laws are disrespected by state judges or prosecutors. But that is invariably true of new laws during their childhoods. Legal training and habits are customarily backward-looking, and legal bureaucracies lie midpoint between sclerosis and rigor mortis. But troglodyte judges, prosecutors, and clerks will die or retire; their replacements will be victims' rights enthusiasts indoctrinated in the new gospel. The problem of inattention to state or victims' rights laws will solve itself, in the same way that unionization rights flowered in the legal system in the 1930s after decades of crabbed interpretations and applications of statutes.
Amendment champions retort that victims' rights would command more prosecutorial and judicial respect if enshrined in the Constitution. But prosecutors and judges take oaths to defend state laws every bit as much as they vow to enforce the Constitution. If they would honor the first more in the breach than in the observance, the second would fare no better. History also speaks volumes. The 1866 Civil Rights Act protecting freedmen leaped into the Constitution with the 1868 14th Amendment, but the civil rights of blacks were routinely ignored by courts, including the United States Supreme Court, for almost a century during the ugly era of Jim Crow. Similarly, did the Roman Catholic creed induce greater compliance with the proclamation of Papal infallibility in 1870?
Victims' rights paladins wrongly equate their cause with the constitutional protections of persons accused of crime. But criminal defendants, unlike crime victims, are generally pariahs who need safeguards against an infuriated public clamoring for instant justice. Further, what is at stake for the accused is his life or liberty, the most precious of our natural rights that justify requiring the government turn square corners whereas participatory rights of crime victims' are much less compelling.
Every constitutional amendment dents our system of federalism. It removes an issue from the agendas of state governments that can more closely tailor solutions that satisfy constituents and serve as laboratories for sister states and the federal government without risk to the entire nation. Errors can be corrected by simple legislation, which is nimble compared to overcoming a constitutional misstep, like the Prohibition Amendment. Deference to state choice additionally offers citizens greater opportunities to participate directly in the responsibilities of self-government, indispensable to sustaining a robust democratic culture.
In sum, the Victims' Rights Amendment has nothing to commend and much to deplore.

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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