Constitutional Trojan horse: seemingly innocuous constitutional amendments — designed to appeal to good, patriotic Americans — contain hidden dangers that would greatly harm our republic

New American, The, July 29, 2002 by George Detweiler

The familiar story of the Trojan horse offers an apt metaphor for ongoing efforts to amend the U.S. Constitution. Virgil's Aeneid relates how the Greeks used the gift of a giant horse to gain access to the fortified city of Troy and conquer it from within. Similar use is being made of seemingly innocuous proposals to amend the Constitution. Most of the proposed amendments address hot-button issues, such as term limits, flag burning, and traditional marriage. Although welcomed by well-intentioned Americans, those "gifts" could conceal a stealthy effort to destroy the Constitution from within, via a second constitutional convention.

Two proposed amendments presently before Congress illustrate this duplicitous strategy at work. On the Senate side, S. J. Res. 35, the "Crime Victims' Rights Amendment," plays to public outrage over violent crime. On the House side, H. J. Res. 93 purports to protect American family values by amending the Constitution to limit the term "marriage" to the traditional man/woman relationship. Both have considerable popular appeal -- but both are "gift horses" that should be rejected.

"Victims' Rights" Charade

"Today I announce my support for the bipartisan Crime Victims' Rights Amendment to the Constitution of the United States," announced President Bush on April 16th. Speaking in the company of Attorney General John Ashcroft, the president observed that "this amendment is sponsored by Senator Feinstein of California and Senator Kyl of Arizona -- one a Democrat and one a Republican, but both great Americans." This fulsome praise for ultra-liberal Senator Feinstein -- a tireless advocate of victim disarmament -- is a solid clue that there is a hidden agenda behind this "victims' rights" proposal. The president's press conference was a Hollywood-style production, complete with representatives of special interest groups and an awards ceremony for activists in the victims' rights movement. During the event, al-Qaeda terrorists were displayed on monitors, thereby tying the proposed amendment in with the all-encompassing "war on terrorism." The president's endorsement undoubtedly gave the measure a strong public relatio ns boost.

No reasonable person disputes that victims' rights are important. Then how can any fair-minded American fail to support S. J. Res. 35? The answer lies in the nature of our Constitution, which was not designed to delve into the trifling details of every aspect of law or of the full panoply of protection provided by the law for personal rights and liberties.

As James Madison famously observed in The Federalist, #45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." With very few exceptions, the power to define and punish crime, and to provide for the rights of crime victims, resides within the "numerous and indefinite" powers reserved to states, which, Madison wrote, "extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

In addition to inverting the constitutional assignment of law enforcement powers, S. J. Res. 35 would empower the central government to define, and even to restrict, the rights of crime victims. Section 1 declares, "the rights of victims of violent crime ... are hereby established and shall not be denied by any State or the United States, and may be restricted only as provided in this article." (Emphasis added.) This provision would supersede the protections of unenumerated individual rights and reserved state powers contained in the Ninth and Tenth Amendments, respectively. Section 2 fleshes out this dangerous language: "These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity." This language resembles provisions found in UN "human rights" documents, and constitutions of totalitarian powers such as the Soviet Union and Communist China: It describes a granted "right," and then pr escribes conditions under which the government may revoke it.

Who will decide when and under what circumstances "victims' rights" may be restricted? According to Section 4: "Congress shall have power to enforce by appropriate legislation the provisions of this article. Nothing in this article shall affect the President's authority to grant reprieves or pardons." The only limitation is that the exercise of this power must be "appropriate" for the purpose of enforcing the amendment. It is also noteworthy that Section 1 extends the scope of the amendment to cover states and state law as well as federal law, but Section 4 gives only Congress the power to enact enabling legislation. Note further that while the president's power to grant reprieves and pardons is preserved, there is no such preservation of like powers for the pardoning agencies in the states. Congress is therefore authorized to eliminate these state pardoning powers entirely, even though they may reside in the state constitutions.