Prepared Statement of Hadley Arkes,

Ney Professor of Jurisprudence and

American Institutions, Amherst College

Hearings for the Subcommittee on the Constitution

House Committee on the Judiciary

July 21, 1999

Chairman Canady, Members of the Committee:

My name is Hadley Arkes. I am currently the Edward Ney Professor of Jurisprudence and American Institutions at Amherst College. I've taught at Amherst for the past 33 years, with the exception of several years in which I have been in Washington on leave and visiting at places like the Brookings Institution, the Woodrow Wilson Center at the Smithsonian Institution, and Georgetown University. My main interests as a writer and a teacher have been focused on political philosophy, public policy, and constitutional law. I have written, in that vein, several books, published by Princeton University Press, including The Philosopher in the City (1981), First Things (1986), Beyond the Constitution (1990), and The Return of George Sutherland (1994). My principal concerns in recent years have been with the so-called "life issues," of abortion and euthanasia, and if it suits the Committee I can append a list of my publications bearing on those issues.

I am here today to testify on behalf of HR 2436, a bill titled as the "Unborn Victims of Violence Act of 1999." It might be said of this bill what Lincoln said of that rather moderate and modest bill he proposed to encourage the gradual and compensated removal of slavery: that it would come "gently as the dews of Heaven, not rending or wrecking anything." The bill does not seek to extend the federal jurisdiction; it achieves its end mainly by filling out the authority that is already in place. The bill is so carefully cabined or limited that it reaches only the killings that are committed in the course of crimes that clearly fall now within the jurisdiction of the federal government. That question, of what the federal jurisdiction reaches, has been one of the most maddening and vexing questions in our law, and it seems to me bound up with some of the insoluble problems of a national government professing at the same time to be the government of a federal republic. It was only within our own lifetimes that it was thought appropriate to bring forth a distinct federal authority to prosecute for the murder of a president of the United States. We ought to recall that, if Lee Harvey Oswald had gone on trial, he would have been tried for a homicide under the laws of Texas. We ought to recall, too, that there were plausible arguments against the need or justification for that extension of authority, just as there were plausible arguments in the Supreme Court, at the turn of the century, as to whether the federal government could act distinctly to protect justices of the Supreme Court who were threatened or assaulted. [See In re Neagle, 135 U.S. 1 (1890)] And if there were plausible arguments on those points, it was all the more problematic when the federal statutes were extended to cover the assault by private persons on private citizens, holding no office. But a generation ago, the murder of three Civil Rights workers in the South, by thugs allied with a local sheriff, brought us past another threshold here in our understanding of the federal jurisdiction. [U.S. v. Price, 383 U.S. 977 (1966).]

Without the crossing of that threshold, in the cases on civil rights, it would be hard to account for the accumulation of statutes since that time, extending the federal authority to cover drive-by shootings in cases dealing with drugs, or acts of intimidation by private persons who might be obstructing the access to abortion clinics. It would be rather late in the day, then, to invoke concerns about "States' rights" and raise an earnest question about the reach of the federal government in these cases. Nor would it be apt to argue that acts of fetal homicide could be covered already under local law, since in virtually all of these other cases, the crimes were already covered by local law. The argument for a federal law had something to do with teaching new lessons about the seriousness of the crime by raising it to the level of a federal offense.

That is the only plausible account that may yet be given about the need for the federal government to be addressing "hate crimes" and "sexual harassment." In order to oppose the current bill, it seems to me that one would have to begin by arguing that the federal jurisdiction was wrongly extended in any these statutes that provide the "predicate" for this bill.

Those kinds of arguments may always be in season, but even if we changed our minds, say, on the matter of drive-by shootings over drugs [18 U.S.C. Sec. 36], that would not affect the substance of this bill. For this bill seeks to follow, closely, the contours of the federal jurisdiction. Its framers seem content to focus only on the matters clearly within the reach of the federal government, and for them that is already an important scaling down in the name of moderation. Even if we repealed the statutes on drive-by shootings, or the protection of access to abortion clinics, the bill would simply apply to the domain of federal jurisdiction that remained. Presumably, the federal government would continue to bear a distinct responsibility, say, for crimes committed within the military. And so this bill could bear, with a dramatic relevance, on the recent case of an enlisted man in the air force who beat his wife and caused the death of the child she was carrying (U.S. v. Robbins, argued before the Court of Appeals for the Armed Forces in May, 1999).

In that case, Gregory Robbins was charged with several offenses, but prosecutors for the Air Force did not think they could charge him for the killing of the unborn child who had already been given the name of Jasmine. For cases of this kind, this bill would make a profound difference. But again, it would not make that difference by extending the federal jurisdiction into new domains. Its "novelty," if we could call it that, comes by only by extending the protections of life to the innocent human being who is present on the scene, but covered in her mother's womb. Yet, that is to say, the federal law would be filled out by adding what we should have understood to have been there all along. For we would simply adjust the federal law more precisely to the understanding of the Founders, as reflected, for example, in James Wilson, one of the framers of the Constitution and a member of the first Supreme Court. In his first lecture on jurisprudence in 1790, Wilson reminded his audience that the purpose of the government was to secure and enlarge our "natural rights," and if there were natural rights, the question was, When did they begin? Wilson's answer was that they began as soon as we ourselves began to be:

In the contemplation of law, [wrote Wilson] life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger. [James Wilson, "Of the Natural Rights of Individuals," in The Works of James Wilson (Cambridge: Harvard University Press, 1967; originally published in 1804), Vol. 2.]

This understanding is, of course, quite unsettling to the partisans of the "right to abortion," and yet this bill rests on premises that even the proponents of "choice" on abortion have been compelled to accept. In prominent articles in recent years, "pro-choice" writers like Naomi Wolff and Camille Paglia have insisted that the pro-choice argument cannot plausibly begin with the claim that we have any doubts about the species, or the human standing, of the child in the womb. If we did not know that there was indeed a child there, the problem of an "unwanted pregnancy" would dissolve. If that organism was a bird or an orange, there is less moral difficulty in disposing of an unwanted bird or orange. But beyond that, the proponents of "choice" have supported the actions to prosecute, or recover damages, for the injuries done to unborn children. Where pregnant women have decided to carry their pregnancies to term, where their children in the womb are regarded as babies, wanted by their mothers, the proponents of choice seem to have been obliged, by their own principles, to recognize the standing of those unborn children as human beings in utero, whose injuries then have standing in the law.

From that perspective, this current bill offers nothing that need be unsettling to the proponents of "abortion rights." And in fact, the bill makes it clear, in two places, that it does not threaten Roe v. Wade, or call into question the "right to abortion." That must be taken as a sign of the prudence shown by the drafters of the bill: They knew that they would be inviting a sweeping rejection of this measure in the courts if this bill were thought to be a device for making a nullity out of Roe v. Wade. But for the same reason, it should be understandable that this bill would raise concerns among those of us who have sought to extend the full protections of the law to unborn children. It certainly must stand as an exemplary awkwardness here that the law would protect the right of a woman to destroy her unborn child, but that if she is assaulted on the way into the abortion clinic, she could then sue for damages that may be done to that same child! The problem, for some of us, can be crystallized in this way: The bill could have been written only in its current form, with its explicit acceptance of Roe v. Wade; and yet, the law cast in that way threatens to confirm the deeper premises of Roe v. Wade --namely, that the child bears no intrinsic dignity in herself, as a human being with a claim to the protections of the law. The child will be protected by federal law only if her existence accords with the interests or convenience of her mother. She is protected by the law only if the mother is pleased to have her live.

Why, then, should this bill be supported by those people who are styled "pro-life"? I would suggest that this bill has a mix of properties we have seen only in rare cases: there is the most limited reach of the bill, staying closely to the contours of what the law permits, but at the same time, as everyone can sense, the bill draws on an understanding of principle running deep. The bill is carefully limited, but at the same time it plants, in the federal law, the premise that unborn children are indeed beings of jural standing--beings who can receive the protections of the law; and that the authority of Congress does in fact reach to the protection of unborn children, at the very least, in the places where the federal government can now reach.

The protection of federal law is not confined to "citizens," or "residents" or "inhabitants," because it may extend to aliens or visitors. And it is not confined to "persons" because it may be extended to cover animals or "endangered species." It is hardly a stretch then for the law to encompass, in its protections, those human beings who are as yet strangers because they have not yet left the womb--but whose faces and features may be known already to their parents and families through sonograms.

On the other side, the people who style themselves "pro-choice" may find consolation in the fact that the law has lived now, for many years, with contradictions of this kind, without undoing the right to abortion. Several years ago a judge in Washington, D.C. confined a woman in prison because, as a "crack" addict, she was endangering her unborn child. The irony, however, quite hard to miss, was that this woman could not have been divested of her constitutional "right" to an abortion; and so at any moment she could have removed the very ground of her incarceration by ordering up the surgery that would have removed, in a stroke, the object of the court's concern. In other parts of the law, we have seen unborn children in the womb invested with "standing" in courts as the inheritors of legacies, or as victims, with a claim to recover against negligent drivers. That is to say, our law has remarkably managed to preserve itself in this world of assumptions radically in conflict: On the one hand, the child in the womb is treated as a victim, with standing in the law to vindicate its injuries. On the other hand, when a woman elects an abortion, that same child is regarded as a legal nonentity, with no standing, or no "injuries" that the law can recognize. The opponents of this bill no doubt suspect that the intention of the law is lend just a bit more weight to the parts of the law that seek to protect the child. The current bill, H.R. 2436, simply reflects the anomalies that run through the law, and it can do nothing itself to dissolve them. But the bill also works to remind the partisans of "choice" on abortion that they too, in many ways, affirm their understanding that there is nothing other than a human being, a small child, in the womb; and it may put the question to them, with a gentle but wholesome strain, of just how long they can preserve the fiction for themselves that they don't know what is in the womb, or that killing is taking place.

For those of us on the other side, the bill bears the promise of teaching something and lending a certain added, moral weight to the parts of the law that seek the protection of the child. Still, it is worth cautioning again that this bill would protect only those unborn children somehow caught up in those actions marked off, with clear boundaries, as federal crimes. It goes without saying that these unborn children are not the objects of intimidation, say, in preventing people from voting, serving on juries, filing claims under federal law. They may be only the closest relatives or people suffering those assaults, or they may be the victims of collateral damage. But here they are covered by the axioms of the law: If the federal government can protect presidents and congressmen, that authority must extend to those who would assault presidents and congressmen by assaulting their relatives or taking them hostage. If a person has no "right" to engage in shooting at a Post Office, he cannot be curiously insulated from any charges of wrongdoing, under the same statutes, if he happens to kill innocent bystanders.

My own hope is that the significance of this legislation may be enlarged, or come to its fuller meaning, when unborn children can become in themselves the objects of federal protection: The deprivation of "life" without due process of law, already contained in the Constitution, could be understood, once again, to apply to all human beings, as it was understood at the time of our Founding.

Yet, as everyone knows, we are distant from that state of affairs right now. We can make a first step in that direction only when the Congress is able to establish, finally, that there is some limit on the right to abortion, even at the point of live birth. In my own judgment, the bill before us today would reach its fuller significance when Congress resumes its effort to put in place those premises, running even deeper yet.

But that for another day; I don't mean to mix my missions. I am here today to support this bill, which in itself, in its own limited compass, accomplishes a profound good. For this modest measure may actually succeed in saving lives, and so I'd rework a line of Lincoln's and say--as he once said of another modest measure, running deep--may the vast future not have to lament that we have neglected to do this modest, but telling thing.

Hadley Arkes

July 1999