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Statement on the Unborn Victims of Violence Act

By Ron Paul

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. (With respect 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 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 the 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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