Constitutional Trojan horse: seemingly innocuous constitutional amendments -- designed to appeal to good, patriotic Americans -- contain hidden dangers that would greatly harm our republic. (The Law).

The familiar story of the Trojan horse offers an apt metaphor for ongoing efforts to amend the U.S. Constitution. Virgil's Aeneid relates how the Greeks used the gift of a giant horse to gain access to the fortified city of Troy and conquer it from within. Similar use is being made of seemingly innocuous proposals to amend the Constitution. Most of the proposed amendments address hot-button issues, such as term limits, flag burning, and traditional marriage. Although welcomed by well-intentioned Americans, those "gifts" could conceal a stealthy effort to destroy the Constitution from within, via a second constitutional convention.

Two proposed amendments presently before Congress illustrate this duplicitous strategy at work. On the Senate side, S. J. Res. 35, the "Crime Victims' Rights Amendment," plays to public outrage over violent crime. On the House side, H. J. Res. 93 purports to protect American family values by amending the Constitution to limit the term "marriage" to the traditional man/woman relationship. Both have considerable popular appeal -- but both are "gift horses" that should be rejected.

"Victims' Rights" Charade

"Today I announce my support for the bipartisan Crime Victims' Rights Amendment to the Constitution of the United States," announced President Bush on April 16th. Speaking in the company of Attorney General John Ashcroft, the president observed that "this amendment is sponsored by Senator Feinstein of California and Senator Kyl of Arizona -- one a Democrat and one a Republican, but both great Americans." This fulsome praise for ultra-liberal Senator Feinstein -- a tireless advocate of victim disarmament -- is a solid clue that there is a hidden agenda behind this "victims' rights" proposal. The president's press conference was a Hollywood-style production, complete with representatives of special interest groups and an awards ceremony for activists in the victims' rights movement. During the event, al-Qaeda terrorists were displayed on monitors, thereby tying the proposed amendment in with the all-encompassing "war on terrorism." The president's endorsement undoubtedly gave the measure a strong public relatio ns boost.

No reasonable person disputes that victims' rights are important. Then how can any fair-minded American fail to support S. J. Res. 35? The answer lies in the nature of our Constitution, which was not designed to delve into the trifling details of every aspect of law or of the full panoply of protection provided by the law for personal rights and liberties.

As James Madison famously observed in The Federalist, #45, "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." With very few exceptions, the power to define and punish crime, and to provide for the rights of crime victims, resides within the "numerous and indefinite" powers reserved to states, which, Madison wrote, "extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State."

In addition to inverting the constitutional assignment of law enforcement powers, S. J. Res. 35 would empower the central government to define, and even to restrict, the rights of crime victims. Section 1 declares, "the rights of victims of violent crime ... are hereby established and shall not be denied by any State or the United States, and may be restricted only as provided in this article." (Emphasis added.) This provision would supersede the protections of unenumerated individual rights and reserved state powers contained in the Ninth and Tenth Amendments, respectively. Section 2 fleshes out this dangerous language: "These rights shall not be restricted except when and to the degree dictated by a substantial interest in public safety or the administration of criminal justice, or by compelling necessity." This language resembles provisions found in UN "human rights" documents, and constitutions of totalitarian powers such as the Soviet Union and Communist China: It describes a granted "right," and then pr escribes conditions under which the government may revoke it.

Who will decide when and under what circumstances "victims' rights" may be restricted? According to Section 4: "Congress shall have power to enforce by appropriate legislation the provisions of this article. Nothing in this article shall affect the President's authority to grant reprieves or pardons." The only limitation is that the exercise of this power must be "appropriate" for the purpose of enforcing the amendment. It is also noteworthy that Section 1 extends the scope of the amendment to cover states and state law as well as federal law, but Section 4 gives only Congress the power to enact enabling legislation. Note further that while the president's power to grant reprieves and pardons is preserved, there is no such preservation of like powers for the pardoning agencies in the states. Congress is therefore authorized to eliminate these state pardoning powers entirely, even though they may reside in the state constitutions.

The victims' rights amendment authorizes Congress to enact statutes weakening victims' rights. For example: Under this amendment, Congress could decide that a "compelling necessity" exists to seal court records in crimes involving terrorism - and states would be powerless to provide otherwise, even if the criminal acts violated only state and not federal law. Victims would have no recourse, nor would those trying to investigate possible corruption or misconduct on the part of federal agencies (as we have seen in both the Oklahoma City bombing and the 9-11 attacks).

Just as importantly, S. J. Res. 35 would subvert the intent of the Founding Fathers to keep criminal law principally a state responsibility. It would transfer to the federal government vast new power to control state criminal law and procedure -- ostensibly to protect victims' rights.

Federal Regulation of Marriage?

H. J. Res. 93, the "Defense of Marriage Amendment," is propelled by public indignation against efforts in some states to recognize same-sex and group "marriages." The measure provides: "Marriage in the United States shall consist of the union of a man and a woman. Neither this Constitution or [sic] the constitution of any State, nor State or [sic] federal law, shall be construed to require that marital status or [sic] the legal incidents thereof be conferred upon unmarried couples or groups." The idea sounds great, so what's wrong with it? Simply put: This amendment would, for the first time, give the federal government jurisdiction over marriage and the home.

"Family policy has historically been regarded as a Tenth Amendment issue, one that's within the purview of the states," comments Dr. Alan Carlson of the Howard Institute. "When the U.S. Constitution was written, one of the powers specifically not delegated by the states to the federal government was control of family law and governance. In contrast to most European constitutions, our foundational document makes no direct mention of children, families, parenthood, marriage, or the family's relationship to the state. This omission reflected the keen interest in the family held by local communities and an unwillingness to subject such sensitive questions to uniform, national answers."

The definition of marriage as a covenant in which "a man [shall] leave his father and his mother, and shall cleave unto his wife ... and they shall be one flesh" (Genesis 2:24) has been repeated in various versions for centuries in the laws and practices of countries throughout the world. That definition has formed a part of the bodies of state laws and been widely recognized in American jurisprudence. Although the language in H. J. Res. 93 reflects laudable concerns, it has no place in the U.S. Constitution and no place in federal law. Marriage should remain exclusively under state dominion, and those seeking to protect marriage should focus their efforts within that arena.

Schemes and Solutions

Sometimes amendments of the type described above are introduced to curb judicial abuse. Activist courts subverting the clear intent of the law have harmed both victims' rights and the traditional family. Many other examples could be cited, from the Supreme Court's infamous 1973 Roe v. Wade (abortion) decision to last month's Ninth Circuit decision to strike the words "under God" from the Pledge of Allegiance. Regarding the latter, Senator Joseph Lieberman (D-Conn.) warned that, unless the decision is overturned, then "we'll all join together as one, I would guess, to offer a constitutional amendment to make the recitation of the pledge appropriate."

It makes no sense to amend the Constitution to rectify abuse of judicial power, since the Constitution is not the problem. But there is an even greater danger than hasty or ill-considered amendments: The possibility that issues like those examined above may lead to a second constitutional convention, where social engineers and power-hungry elitists would have an opportunity to modify or even abolish our Constitution to suit their whims.

But efforts to curb judicial abuses need not court such dangers. The proper remedy to judicial usurpation is to employ a little-known power contained in Article III, Section 2 of the Constitution, which allows Congress to make exceptions to the appellate jurisdiction of the Supreme Court. This power applies, by extension, to all federal courts, since the Supreme Court is the only federal court established by the Constitution and Congress established all other federal courts. This power could be used to prevent the federal courts from hearing cases from abortion to the Pledge of Allegiance. If this were done, myriad pretexts for endlessly tampering with the Constitution would be lost.

Mr. Detveiler is a constitutional lawyer and former assistant attorney general for the state of Idaho.