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Constitutional Amendment ... Substance or Style?

Wolfstone vetoes the "Victims' Rights Amendment"

By Gary L. Wolfstone

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Gary L. Wolfstone Seattle, WA

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Harvard Law Professor, Laurence Tribe, is correct when he cautions that we should not lightly undertake the task of adding new Amendments to the U.S. Constitution.

According to Tribe, Constitutional Amendments are only appropriate when the goal involves (1) a necessary change in government structure or (2) a necessary recognition of a basic human right, where (a) the right is one that people widely agree deserves serious and permanent respect, (b) the right is one that is insufficiently protected under existing law, (c) the right is one that cannot be adequately protected through purely political action such as state or federal legislation and/or regulation, (d) the right is one whose inclusion in the Constitution would not distort or endanger basic principles of the separation of powers among the federal branches, or the division of powers between the national and state governments, and (e) the right would be judicially enforceable without creating open-ended or otherwise unacceptable funding obligations.

The so-called "Victims' Rights Amendment" purports to protect the rights of crime victims not to be victimized yet again through the processes and institutions which prosecute, convict, punish and release offenders.

Any attorney who has been practising law for more than ten years is well aware of the changes in the criminal justice system which already guarantee to criminal victims a meaningful opportunity to observe and participate in the system at every stage of the proceedings from trial through parole. How different we are today thanks to the dedication and tireless efforts of Candy Lightner, for example, who founded Mothers Against Drunk Drivers!

State and federal legislation and the existing protection of the basic Bill of Rights presently foster and protect the rights of victims. Instead of tinkering with the U.S. Constitution and running the risk that a full blown Constitutional Convention might be inspired to "remake" entirely the existing architecture of the Constitution, we should devote our creative talents to eliminating phlegmatic bureaucrats from our agencies and courts.

Adding Amendments to the Constitution for a purely symbolic purpose is like adding chrome letters to a web site. The Feminists have forever altered sexual assault prosecutions with the legislative tool of rape-shield laws without resorting to the heavy artillery of Constitutional Amendments--admittedly to the benefit of all civilized people.

Professor Philip Heymann correctly notes that our criminal justice system is already much too politicized. I, for one, certainly do not fear that my elected officials will favor the rights of criminals over the rights of victims!

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Opposing arguments by Harvard Law School Faculty are set forth in the Summer 1997 issue of the Harvard Law School Bulletin which is published by The Harvard Law School on behalf of Phillip Heymann and Laurence Tribe.