States Rights

New at Reason: Jacob Sullum asks how federal abortion access laws and states rights can co-exist.

Comments

[thoreau]

Joe-

Fair enough. Adding special circumstances under which harsher penalties apply is reasonable. I'm not convinced that abortion clinics should be a special circumstance, but I see the general point. However, the manner in which it was done, turning it into a federal issue so that all sorts of Constitutional questions arise, seems inappropriate.

Here's a question: So the federal statute is overturned. The thug is released from prison. Can a state prosecutor charge him with violations of state law, or is it double jeopardy? I'm not convinced that every instance of multiple prosecution is double jeopardy (e.g. if somebody robbed a factory to get ink for counterfeiting money, the theft is a state crime and the attempt to counterfeit is a federal crime). However, in this case we don't seem to have two distinct actions that clearly call for separate prosecutions. Can anybody shed light on this?

Anyway, I'd hate to see this thug escape any further prosecution because the initial prosecution was under a law that Congress never should have enacted.

[joe]

I wouldn't worry, thoreau. Think of Stacey Koon's civil rights trial.

[Anonymous]

I DO have a problem with "special circumstances". THAT is essentially the slippery slope.

A cop is no better than a bus driver or a wino. If you start making exceptions, then EVERYTHING is an execption.

Except fetuses.

[Warren]

I think the important thing here is; HOPE. Tiny, sprout like though it is. The SCUS and now other courts have actually ruled that 'the US Constitution really does prevent congress from doing whatever the fuck they want'. AND if judges actually READ the Constitution, they might be forced to overturn everything that's been passed since FDR was sworn into office.
Like I said, it's a very small hope, but the point is this is the first time in generations that the omnipotence of the state has been successfully challenged.

[Kevin Carson]

joe,

Torture, etc., are concrete actions arguably definable as separate offenses from simple murder. So why is motive a necessary consideration?

[thoreau]

Kevin-

Distinguishing between first, second, and third degree murder is in some sense examining motive, or at least what a person was thinking.

In relation to the original topic this is somewhat far afield. Trying to discern just how deranged a criminal is (spur of the moment crime vs. careful plans) is different from basing the punishment on who the victim is (e.g. punishing the guy who drove a van into an abortion clinic differently from a guy who drives a van into a dentist's office).

I get the feeling that nobody here really thinks attacking an abortion clinic deserves to be punished differently from attacking any other office (assuming similar damage done, similar method used, etc.). And apparently there's almost no support here for making it a federal crime either. Wow, agreement on this forum!

Somebody did say that if abortion is a fundamental liberty (i.e. control of one's own body) then interference in abortion could in principle be a federal matter. But even the infringement of a fundamental liberty (abortion or otherwise) should only be a federal crime if the state is refusing to protect that liberty. In that instance, the state itself would in some sense be complicit in the crime, and it would then be more reasonable for the feds to intervene.

But I don't know of any state that turns a blind eye toward anti-abortion violence (correct me if I'm wrong). So I guess we all agree as a practical matter that the clinic access law shouldn't have been passed.

But let's not let that basic agreement stop us from debating ancillary points! 😉

[joe]

Kevin,

Violent crimes with a political dimension cause, or raise the possibility of, damage that is wider than those with just a personal motive. There is a reason lynch mobs displayed their victims in public; to send a message. Those murders drove apart social relations among people of different races, encouraged further anti-black violence, and scared black people out of political activity - that is, they did exactly what they were intended to do. Intended, intent.

"Hate crimes" are violent crimes that, in intent and effect, pick at the open sores that exist in our socity. They harm the victim, and they harm a lot of other people as well. That makes them more serious, and makes enhanced sanctions appropriate.

[T. Lassiter Jones]

Excuse me? Where in the US constitution does it say that states have "rights"?

States are granted "powers" under the constitution, but only human beings have "rights."

And in the case of abortion, courts have ruled that individuals' rights take precedence over state "powers." And as with slavery, etc., the Feds have had to trump the powers of the states in order to assure non-interference with the rights and liberties of individuals. Not the best of all situations, granted, but if states stopped claiming "rights" perhaps there would be less confusion or willingness to violate constitutional protections.

[Anonymous]

I think some people would argue with the above. It is the states that grant powers to the feds, not the other way around. Only the constitutional provisions cover the things all states must allow their individual citizens.

In short, it is the states who collectively created the fed, not the fed who created a collection of states.

[matt]

Anon at 1135: Exactly...the states created the federal government (facts are really hard to argue against). The states granted the federal government specific "powers," not the other way around like in TL Jones rather bizzare arugument.

And while were on the issue of "rights," nowhere in the Constitution is abortion addressed. Therefore, it should be a state issue like it was pre-Roe V. Wade.

[thoreau]

Forget all the questions of how many Constitutional amendments can dance on the head of a pin. Let's get down to practical questions:

Prior to enactment of this federal statute, were state and local prosecutors actually going easy on people who engaged in violence and vandalism at abortion clinics? I doubt it. If I'm wrong, then one might argue that there's a need for this law, and the question would then arise "Does Congress have the authority to fill that need?" (IMHO the answer would be a decisive NO!, but that's beside the point.)

I'll never understand why some people want to take clear-cut crimes (e.g. murder, vandalism) and create special circumstances where the crimes are prosecuted as something else (hate crime, blocking access to abortion clinic, etc.). In the case of the clinic law, you go from something simple (show the jury the damage to the clinic and get some eyewitnesses to testify that he did it) to something complicated (jump through a bunch of dubious Constitutional hoops to try and prove the federal statute is valid). I'm already convinced that the guy should go to prison for a while and pay restitution to the owner of the clinic and anybody he may have injured. Why throw in a Constitutional debate too? If this were a state matter it would be over and done with.

[joe]

"I'll never understand why some people want to take clear-cut crimes (e.g. murder, vandalism) and create special circumstances where the crimes are prosecuted as something else (hate crime, blocking access to abortion clinic, etc.)."

You're confusing two things; creating a new crime (as the clinic access act does) and increasing sentencing guidelines for an existing crime when there are special circumstances (as most hate crimes bills do). Think of laws enhancing the penalty for murder in the case of torture, killing a cop, multiple killings, or using a paid assassin. These crimes are judged to be more serious than shooting someone in order to take his wallet. You can disagree with the particulars, but it's tough to argue that it's wrong to increase the punishment for more serious cases.

[fyodor]

joe (if you or anyone is still reading this thread!)

If the point of hate crime legislation were to criminalize "sending a message," it would likely* be redundant with laws already on the books which criminalize threats as harrassment. But of course, prosecuting a hate crime does not require showing any evidence of intent to intimidate anyone. Instead, it focuses entirely on whether the inner motivation of the criminal was bigotry.

*I added "likely" after writing the rest because I am not knowledgable enough of the laws in question to know for sure if this is the case. If hate crime legislation were written to apply to people who were proven to be practicing intimidation of this sort, AND if this were filling in a gap that is not covered by our laws otherwise, I would be in favor of hate crime legislation. I tend to doubt that either condition currently applies.

But thanks for giving the most articulate defense of hate crime legislation I've yet seen!