Authority for Authority's Sake

Baltimore Examiner ^ | March 19,2007 | George Liebmann

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George W. Liebmann: Authority for authority’s sake BALTIMORE - The Bush Justice Department must shock those accustomed to think of the Republican Party as the party of limited government. Republican attorneys general like Edward Levi and Edwin Meese articulately warned against overexpanded federal criminal jurisdiction. Even Nixon’s John Mitchell sought to limit the more exuberant proposals of a “reform” commission appointed by Lyndon Johnson.

The Bush administration, like that of Clinton before it, has exploited terrorist acts in Oklahoma City and New York to enact dozens of new federal capital offenses. Attempts to control state units of the National Guard and to use the military for law enforcement evoked a rare unanimous protest of the nation’s governors. It successfully betrayed Chief Justice William Rehnquist’s Federalism Revolution by urging on the Supreme Court a sweeping interpretation of federal drug legislation, while opposing state discretion with respect to medical marijuana, assisted suicide and gay rights.

Now the administration, while properly upholding state’s rights in regards to abortion, pursues federal death penalties for traditional state offenses even when competent state prosecutors, like District Attorney Robert Morgenthau in New York, have not sought them, and even in jurisdictions with a declared policy against capital punishment. By doing so it nationalizes an issue which the Supreme Court has wisely left to the states.

It is interesting to remember that General de Gaulle, in his last political act, tried to decentralize power so that the national government was not “ipso facto the target of every grievance.” It is also worth noting that our limited experience with federal capital punishment includes the controversial orphaning of the children of the Rosenbergs, revealed by the Venona papers to have been relatively minor spies, and the equally unpopular execution of Private Eddie Slovik. Now the administration seeks to bring capital punishment to Puerto Rico, whose constitution forbids it and whose church opposes it.

Criminal law in a free society gains its force from public opinion and is, as Justice Holmes observed, “the external expression of our moral life.” Public opinion in many states, including Maryland, supports capital punishment, at least for the most aggravated murders. But the federal government wants to impose the ultimate sanction on communities whose legislatures and elected prosecutors do not want it. In a new form of jury nullification, federal juries are encouraged to repudiate the judgments of state legislatures.

This crusade rests on no practical judgments.

For each capital sentence sought in reluctant communities, there are several failures.

The costs are of no concern to federal officials, who, unlike their state and Puerto Rican counterparts, can print money and ignore deficits.

In a vague way, Attorney General Alberto Gonzales seems to feel that by seeking the most severe sanction, he vindicates authority. To this Lord Acton had the right answer: “There is no worse heresy than that the office sanctifies the holder of it. That is the point at which the negation of Catholicism and the negation of Liberalism meet and keep high festival, and the end learns to justify the means.” Attorney General Gonzales and his administration might also reflect upon the example of Jefferson, a benighted soul who ended his two terms by telling the Papal Nuncio “I have the consolation to reflect that during the period of my administration not a drop of the blood of a single fellow citizen was shed by the sword of war or of the law.”

The writer, a Baltimore lawyer, is volunteer executive director of the Calvert Institute for Policy Research, president of the Library Company of the Baltimore Bar, and the author of “The Common Law Tradition: A Collective Portrait of Five Legal Scholars.” (2005)

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[MEGoody]

Since every right we have as citizens of the U.S. is dependent on the right to life, I have never understood why murder was a 'state' issue. Seems to me, it should be a federal issue.