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Chris Field- Contributor
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A Constitutional Amendment Is the
Way to Go...
[Chris Field] 4/25/05
Last week in this space I offered the idea that if we want to
get serious about protecting the rights of crime victims in this
country, we need to pass a Crime Victims Constitutional Amendment.
Of course, not everybody supports the idea that Congress and
the American citizenry need to amend the Constitution in order
to protect victims from abuse by the court system. And if you
read my piece last week, you know that this is not just a conservative
Republican issue (though most supporters have been conservative
GOPers): right-wing Sen. Jon Kyl (Ariz.) and California lefty
Sen. Dianne Feinstein cosponsored such an amendment. But did
you know that former President Clinton and former A.G. Janet
Reno also supported it?
Opponents of this amendment have come up will all sorts of excuses
not to support putting victims' rights in the Constitution, but
they seem a bit shaky.
For example, many people have said they oppose this amendment
because they have a strong general bias against amending the
Constitution. They advocate so strongly for preserving the sanctity
of the Constitution that it seems no amendment would ever be
appropriate. Surely hesitancy about amending the Constitution
is understandable, and amendments should not be done on a whim.
However, when it is necessary, as it is in this case, Congress
must protect the rights of Americans. The Constitution is not
so fragile that it cannot be amended. In fact, the opposite is
true -- the Constitution is so strong that it can be amended
and even provides the way to do so when necessary. The Founding
Fathers determined that the importance of being able to amend
the Constitution was so great that the provision was given an
entire article, Article V, outlining the process.
Liberal opponents love to point out that the Constitution has
been amended only 27 times, including adding the Bill of Rights,
and have used that as an excuse for opposing this amendment.
Though this claim is literally correct, the Constitution has
actually been amended and reinterpreted thousands of times by
Supreme Court and lower court rulings. For example:
- the Roe
v. Wade ruling radically amended the Constitution when the
Supreme Court proclaimed that it had
discovered the "constitutional" right
of women to abort their unborn children "emanating" in
the Constitution's "penumbra."
- the Supreme
Court effectively amended the Constitution in its Texas v.
Johnson and United States v. Eichman decisions,
in which it ruled that burning a flag is expressive conduct that
is protected by the 1st Amendment.
- --in the Lawrence v. Texas, the Supreme Court discovered the
heretofore unknown constitutionally protected right to homosexual
Judges aren't the only ones rewriting the Constitution -- Congress
has too. Democrats, for example, repeatedly have attempted to
subvert the 2nd Amendment right to keep and bear arms. Interesting
that so many liberal Democrats say they are offended at the notion
of a constitutional amendment to protect the rights of the five
million Americans who are annually victimized by criminals, many
of whom are armed criminals, but at the same time they do not
hesitate to try to take firearms out of the hands of law-abiding
Americans. They are willing to distort the Constitution so Americans
will be unable to protect themselves, and they oppose amending
the Constitution to give the unarmed victims of violent criminals
the right to be heard in court.
Many claim the amendment is unnecessary because the rights of
victims are already implicitly protected. Using that logic, was
the 1st Amendment really that necessary? The freedom of speech
is obviously vital for the maintenance of liberty in a representative
republic such as ours. I, for one, am thankful that the Constitution
prevents the government from abridging the freedom of speech:
without it judges and legislators would regularly infringe on
that right. There are several rights we consider self-evident
that are expressly and properly addressed and protected in the
Some say this amendment would be unfair to the accused. Supposedly
victims who are called as witnesses will give biased testimony.
Don't forget that the defendant has that same opportunity to
hear and tailor testimony. Others say that it would be too expensive
if society had to pay to protect victims' rights -- again, a
double standard. Society pays for defendants' rights, including
attorneys, transcripts, and transportation. Why are opponents
concerned about the potential of paying to protect the rights
of victims? The amendment I cited last week does not require
victims to attend trials; it states only that the government
may not deny them the right to participate if they so choose.
Several opponents of this amendment claim that a federal statute
would be as effective as a constitutional amendment. They either
are ignorant of or ignoring the history and nature of federal
statutes. In 1990, Congress passed the Victim's Rights and Restitution
Act, protecting the rights of crime victims, most notably the
right to attend and be involved in court proceedings. Then, 10
years ago this week, on April 19, 1995, the Murrah Federal Building
in Oklahoma City was bombed, killing 168 people and wounding
many more. The court cases that stemmed from that event were
long and involved, and many victims desired to attend. According
to the Victims' Rights and Restitution Act they were to be afforded
that right, but as time went on it became apparent that those
rights were going to be largely ignored. In response, Congress
passed the Mandatory Victims Restitution Act in 1996, which reaffirmed
restitution rights of victims, and passed the Victim Rights Clarification
Act in 1997, which amended the Federal criminal code to prohibit
a court from ordering any victim of an offense to be excluded
from the trial.
All of those laws were for naught. The victims of the bombing
were given a choice by the judge: They could either attend the
trial or the sentencing, but not both. The judge could not plead
ignorance in this case. He could not even state that there was
a precedent: these were statutes aimed directly at this case,
and the judge blatantly disregarded them.
The danger of using statutory protections for victims is that
the constitutional rights of the accused outweigh any Federal
or State statutes or any State constitutions, and, therefore,
will overshadow victims' rights until there is a constitutional
amendment. According to the Department of Justice, even in states
that have strong protections for victims' rights, fewer than
60% of victims are notified of the sentencing hearing and fewer
than 40% are notified of the pretrial release of the defendant.
A constitutional amendment is the only legal measure strong enough
to rectify these inconsistencies.
Judicial atrophy is another issue. Theoretically, a constitutional
amendment should be unnecessary, but the major players in America's
criminal justice system -- prosecutors, public defenders, and
judges -- have ignored the concerns of the victims in deference
to habit and a view that the rights of defendants are superior.
To expect those people who have casually disregarded victims
for years to suddenly begin respecting victims because of a new
statute is a pipedream.
We need this amendment in order to set a national floor of rights
for all victims of violent crimes. History gives me no reason
to believe that any other solution will work.
note: This Two Cents is adapted from a piece written by Chris
Field for the Senate Republican Policy
2005 Human Events