The Ashcroft Factor Ascendant

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Attorney General John Ashcroft's confirmation process I
wrote an article
discussing some of his un-conservative views,
including endorsement of the Americans with Disabilities Act and
the Fair Housing Act. I argued his positions were that of a "traditionalist

nationalism, or the Ashcroft Factor, recently made a step toward
becoming policy in the Unborn Victims of Violence Act. Approved
last week by the House of Representatives with 53 Democrats joining
the majority, the UVVA converts injury of a fetus during an attack
into a federal crime. President
George W. Bush supports the bill.

surrounding the UVVA centers on pro-choice bromides versus the attribution
of fetal personhood. A salient silence on both sides is the bill's
displacement of federalism.

the Gun-Free School Zones Act and Violence against Women Act, the
Unborn Victims of Violence Act usurps states' rights in violation
of the Tenth Amendment, asserting a non-existent congressional authority
to standardize the criminal law of the union's fifty polities in
this area.

conservatives have betrayed a willingness to eighty-six first principles
when it advances their policy preferences. Alan Keyes, generally
a robust nomocrat, describes the UVVA as "a weapon of truth"
in an
devoid of constitutional considerations.

the perspective of federalism, it is extraneous whether congressional
usurpation advances a conservative or leftist agenda. (Strictly
speaking, it is impossible for a constitutionally repugnant policy
to realize conservative values since those values entail conserving
the constitutional order.) The only relevant thing is that centralization
has intensified to the further erosion of separation of powers and

to the misperception of House Republicans, the Beltway should not
be the determinant of every state's policy on fetal battery (an
indisputably savage act). This and innumerable other issues should
be resolved on a state by state basis. (Indeed, the vast majority
of states already criminalize attacks inflicting fetal injury.)

laws such as the UVVA, "conservative" legislators can
score some ostensible victories, but their conduct ultimately reinforces
the radical enterprise of imperial legislation. Implicit in their
defense of the UVVA is that its left-predecessors were inappropriate
not on fundamental, constitutional grounds but because of programmatic
variance with the GOP. It is a myopic strategy that in the long
term will undermine their victories and facilitate Democratic federalization.

sure, the traditionalist nationalism of Ashcroft, Keyes, and Republican
legislators seems much more palatable than the prescriptions of
Edward Kennedy and the like. Nevertheless, usurpation with a traditionalist
texture is still usurpation. Start making right-wing exemptions
to constitutional order and chaotic consolidation is around the

genuine conservative agenda would focus not on enacting new legislation
but repealing much current legislation. Instead, institutional conservatives
apparently want to mimic Democrats' penchant for legislating everything,
what Paul Campos terms "jurismania." (See his excellent
book of the same title.)

it did in United States. v. Lopez (1994) and United
States v. Morrison (2000), the Supreme Court should invalidate
the Unborn Victims of Violence Act if it becomes law. The founders'
design demands nothing less.

1, 2001

Kantor [send him mail]
and lives in Boynton Beach, Florida

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