The Ashcroft Factor Ascendant

During 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 nationalist."

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.

Controversy 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.

Like 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.

Unfortunately, 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 article devoid of constitutional considerations.

From 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 self-government.

Contrary 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.)

Through 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.

For 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 corner.

A 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.)

As 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.

May 1, 2001

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