Hindsight from The New Gun Week
April 10, 2000Constitutional Amendments In Congress Again
by Joseph P. Tartaro, Executive EditorAs I write this column, the US Senate was expected momentarily to consider once again a resolution to amend the Constitution that supporters believe is necessary to prevent desecration of our national symbol: the flag.
When the Senate considered a duplicate resolution last, the measure fell just a few votes shy of the necessary super-majority that would initiate the amendment process. The House has already passed the resolution by the necessary two-thirds majority this year. If supporters in the Senate can muster the required number of votes this year, the flag amendment will move to the states. If the legislatures of three-fourths of the states also ratify the amendment, the Constitution will be changed for the 28th time.
The purpose of this column is not to debate the pros and cons of the flag amendment-a subject I have dealt with in a column many months ago, but to consider still other attempts to change the Constitution. There seems to be a persistent tendency of people, who feel that their concerns have not otherwise been addressed, to promote more and more changes to the Constitution.
The flag amendment is not the only such change being pursued in the 106th Congress. The other amendment resolution that seems likely to be considered shortly is the so-called victims' rights amendment.
I'm sure that there are people who have very good reasons to promote the flag amendment and the victims' rights proposal. But someone could say the same about those who lately have increasingly been calling for an amendment to remove the Second Amendment from the Constitution.
Best Intentions
Everyone has the best intentions-at least as they see it. Just like the governors who so recently promoted a constitutional convention with the avowed purpose of spelling out the proper sharing power, funding and other functions of state and federal government. That sounded like a worthwhile return to Tenth Amendment protections of states' rights.
But good intentions are not enough. And it is with good reason that many say the road to hell is paved with good intentions.
The governors, you may recall, wanted to limit the power of the federal government-not an altogether unwelcome change. They were practically packing for their meeting in Philadelphia when enough individual Americans howled loud enough to spike the whole idea. People, including many readers of this publication, judging by letters at the time, were totally opposed to the constitutional convention idea, even though they favored greater limits on federal power.
The problem, however, was the fear that a constitutional convention, once convened, can do anything it pleases, and change anything else it wants to chance in the Constitution. Fears of a runaway convention motivated most supporters of the right to keep and bear arms to oppose the governors' constitutional convention. Conservatives and liberals alike came together to help dismantle the whole project, which had been sponsored by both Democrat and Republican governors.
The flag amendment has some powerful supporters, and has a lot of popular appeal. It's hard for someone to be against the flag amendment, although there are people who support the intention but oppose the idea of amending the Constitution.
Victims' Rights
A similar conflict presents itself when the victims' rights amendment is discussed. At first blush it would seem hard for anyone to be against giving the victims of crime and their survivors special rights in court. But a surprising number of people and a broad coalition of organizations do oppose the resolution to amend the Constitution for this purpose. And their intentions are as good, if not better, than those who support the change.
Before we look at some of the other reasons why there is opposition to the victims' rights amendment, it seems worth taking the time to mention that when you tip the scales of justice to give someone more rights, you are very likely going to do so at the expense of someone else's rights. That seems to be the case with this amendment.
Perhaps some of the most eloquent arguments against the victims' rights amendment were expressed before the House Subcommittee on the Constitution by Emmett E. "Bud" Welch on Feb. 10. Perhaps I am biased, because I worked with Bud Welch when many organizations were allied in trying to block the habeas corpus reforms that were wrapped up in the anti-terrorism bill in Congress.
Welch got his ticket to speak at these events the hard way: his daughter Julie was one of the people killed in the 1995 Oklahoma City federal building bombing.
Welch's sister, and Julie's aunt, made the point during a habeas corpus issue press conference that her niece Julie would not have wanted her death to be the cause of other people losing their constitutional rights.
Here are some quotes from Welch's congressional testimony:
"Julie was my best friend and my heart has been absolutely broken since her death. I was so angry after she was killed that I wanted McVeigh and Nichols killed without a trial. I probably would have done it myself if I could have. I consider that I was in a state of temporary insanity immediately after her death.
"It is because I was so crazy with grief that I oppose the Victims' Rights Amendment. It would give victims the right to give input in the criminal case before a conviction. I do not think crime victims should have a constitutional right to give input to bail decisions and plea agreements. I think victims are too emotionally involved in the case and will not make the best decisions about how to handle the case."
Welch continued by saying that he believed the government did an excellent job of prosecuting the Oklahoma City bombing case.
He noted that one of the federal prosecutors in that case opposed the victims' rights amendment because she believed it would have compromised the government's case because it might have prevented the plea arrangement which enabled Michael Fortier to give crucial prosecution testimony.
Many of the survivors and victims' relatives opposed that plea agreement. But, had the victims' rights amendment already have been in place, it would have allowed every one of the 168 victims to speak about and influence the plea agreement.
Other Considerations
Besides creating conflicts and delays through the differing views of the victims and survivors of crimes that the justice system would have to accommodate if the amendment were in force, Welch offered some other reasons for opposing it.
The victims' rights amendment is supposed to assure consideration for the interest of the victim in a trial free from delay. Forcing the wrong timetable on a judge in scheduling trials could have all sorts of unwelcome consequences, not the least being forcing prosecutors to argue a case before it is ready. It would also force the defendant into court before his or her defense had been adequately prepared.
Welch also reminded Congress that the victims' rights amendment could lead to wrongful convictions, and by having victims represented throughout a trial and all related public proceedings, even when it could bias a jury or give one witness access to the testimony of other witnesses before they were called to the witness box.
He concluded by suggesting that there were other ways to help the witnesses and assure their satisfaction with the judicial process in their cases than by amending the Constitution. That is a view shared by others.
Then there are people like myself, many of them conservative or libertarian, who are suspicious of all attempts to amend the Constitution to resolve every complaint.
The New Gun Week is published three times a month by the Second Amendment Foundation (SAF) on the 1st, 10th, and 20th. Hindsight is a commentary written by SAF President and Gun Week Executive Editor Joseph P. Tartaro. This commentary may be reprinted so long as credit is given to the author and the publication. For more information or to subscribe, write Gun Week, PO Box 488, Buffalo, NY 14209, or call 716-885-6408 Monday through Friday 9 a.m. to 5 p.m. EST, or inquire on Compuserve to John Krull, Production manager-JohnSAF@Compuserve.com or gunweeksaf@broadviewnet.netAlso, check out the New Gun Week at http://www.GunWeek.com