Bob Barr

Amendmentitis
in The Washington Times, April 19, 2004

The circus is back in town. Every two years, as we roll around to another grand Olympics of federal, state and local elections, the hopper in Congress begins to fill up with dangerous and unnecessary amendments to our U.S. Constitution.

Few, if any, are for "great or extraordinary occasions," the bar James Madison set for changing our Founding document. In fact, most are either one of two things: a cheap ploy to get votes or an attempt to steamroll through right- or left-wing social policies -- think gun control or marriage -- that have been unable to get any traction through normal channels of government.

Just this session alone, Congress has seen or will see votes on the Flag Desecration Amendment, the Victims Rights Amendment, the Federal Marriage Amendment, even the Continuity in Government Amendment. Frankly, I would like to see one last constitutional amendment -- the No More Amendments Amendment.
In the American political system, the Constitution was meant to operate like people who freeze their credit cards in a block of ice. That is, when faced with supremely important and emotional decisions involving things like the censorship of unpopular ideas or the seizure of firearms, the Constitution makes us walk to the corner and take a time out.

Specifically, we have to get a two-thirds supermajority in both chambers of Congress and then three-quarters of the states to agree. It is an amazingly onerous process.

The last amendment to the Constitution -- the 27th -- which set limits on congressional pay, was initially proposed in the states' petitions to the first Constitutional Congress in the 1780s but only started to move in the 1990s. It took more than two centuries to finally earn a spot alongside free speech and the right not to self-incriminate.

During the Cold War, Americans of conscience liked to brag we were a nation of laws, not men. That is, the main difference between American representative democracy and Soviet tyranny was that the latter's government did not have to abide by a piece of yellowing parchment with some pretty clear instructions on what it could or could not do to its citizens.

And, while we have failed to meet those lofty goals on a number of important occasions, for the most part, we have managed to pedal through without too many monumental abridgments of personal liberty. That is why we are still here and they went long ago to a nursing home for evil ideas.

However, we risk betraying that proud history in the political imperative to fiddle with the Constitution. Take, for instance, the Victims Rights Amendment. Pushed by a mixture of Democrats and Republicans feeling they need to burnish their tough-on-crime badges, the VRA would be a disaster for basic principles of fairness and dispassion in our criminal justice system.

It would guarantee victims of crime -- a loosely defined term in the legislation — the "right" to notice, to be present and to speak at an array of judicial proceedings, including those dealing with bail, trial, sentencing and parole. It also requires the court to take victims into account in deciding whether to release prisoners or when to schedule a trial.

As with many of these amendments, on its face the measure hits all the right notes. It is tough on crime and soft on victims. It is bipartisan -- as a lawmaker, if you oppose it, the other side will accuse you of being "anti-victim," whatever that means. It costs no federal tax dollars (at least, not directly); states have to foot the bill. Finally, it makes for a feel-good, "I supported such and such" speech on the campaign trail.

But, as with many of these other amendments, it is seriously flawed. Foremost among its problems is that it will, ironically, obstruct justice. In 2000, Beth Wilkinson, the lead federal prosecutor in the Oklahoma City bombing case, explained in testimony against the amendment that, had it been in force, she might not have successfully sent Timothy McVeigh to death row and Terry Nichols to jail for life.

Their convictions hinged on the testimony of one Michael Fortier, who plea bargained to 12 years in federal prison, for knowing about the impending bombing but not informing authorities, in exchange for taking the witness stand. Had the relatives of the 168 people killed in that horrible tragedy been able to address the courtroom in opposition to Fortier's plea, it could have sunk the whole case.

In addition to these practical concerns, the VRA also threatens basic due process protections and objectivity in the criminal justice system by making it more about vengeance than justice. We trust our adversarial process -- which pits zealous advocates against one another in front of a judge and jury -- to arrive at the best approximation of the truth in criminal prosecutions, which helps ensure the guilty are punished and the innocent go free.

However, when one injects the emotion of a murder victim's family into a bail or a parole hearing, that adversarial system is thrown directly out of whack. The defense counsel then faces an onslaught of vindictiveness that cannot be countered by facts or logic. Justice must remain blindfolded to be effective. Otherwise, we will have vigilante posses waiting outside with lit torches and nooses tied every time something really sensational goes to trial.

Finally, in an ironic twist that really hammers home the folly of such constitutional amendments, the vast majority of states -- and the federal government -- already have laws on the books protecting victims and ensuring their interests are not forgotten as their cases progress through the system.

The bottom line with the Victims Rights Amendment and its ilk is that the Constitution should not be co-opted as the tag line for a political attack ad. It is arguably the most sacred secular document in the history of the world, as it has kept humanity's strongest democracy healthy long enough to also make it humanity's oldest democracy.


Former U.S. Rep. Bob Barr is a frequent commentator on political and social issues and the chairman of the American Conservative Union Foundation's 21st Century Center for Privacy and Freedom