Conservatives should be uneasy about what's happening to Michael Vick. Not because dog fighting is a long-standing, time honored feature of western civilization; I'm perfectly content that we find dog fighting morally repulsive and gratified to see how eager people are that our moral sense be enshrined in law. Nor am I defending animal cruelty; so long as we keep the distinction between animal and human firmly in mind, I'm all for cruelty being punished. But Vick is not being charged with cruelty to animals. He's not even being charged with dog fighting. He's being charged with dog fighting in interstate commerce, and there's the rub.
Here is the federal indictment of Vick and his friends. They're being charged with violating 18 US Code § 1952 (Interstate and foreign travel or transportation in aid of racketeering enterprises) and 7 USC § 2156 (Animal fighting venture prohibition). These are not federal crimes simply because dog fighting is bad. The federal government has no power to punish acts simply because they're bad. They are crimes only, and only to the extent, that they involve interstate or foreign commerce because the Constitution gives Congress the power to regulate interstate and foreign commerce. The Commonwealth of Virginia, on the other hand, has the power to punish acts simply because they're bad, and dog fighting is a crime in Virginia.
Once we've focussed on the actual crimes with which Vick is charged, the indictment and our response to it become troubling. As everyone knows by now, the indictment lists various ways in which Vick and company killed dogs that failed to show the proper fighting spirit. People are outraged by this cruelty. But it's not illegal to kill dogs you own and, in particular, it's not relevant to Vick's guilt or innocence of the crimes charged. The only reason those particulars are in the indictment is to stir up hatred and revulsion directed at Vick and, in that, the government has been successful. (If, in fact, the dogs suffered unduly from being electrocuted or shot or slammed to the ground, then Vick may well have violated Virginia anti-cruelty statutes but that's not at all clear. Shooting, in particular, is the traditional humane method for people who need to put down their own dog. It was sad when they shot Ol' Yeller, but the point wasn't that it was cruel.)
But the government using irrelevant detail to wind up hatred of a criminal defendant wouldn't be a particularly conservative issue if the government in question were the Commonwealth of Virginia. The problem for conservatives is federalism, and paying it more than lip-service. The federal ban on dog fighting is just one of the myriad examples of the Congress using its power to regulate interstate commerce as an excuse to subvert the states' general police power. In the Vick case, the dog fighting was primarily a Virginia enterprise and Virginia was perfectly able to take action. It would not have been stymied by the fact of Vick traveling from Georgia or some of the dogs coming from North Carolina. There's no need, here, for the federal government to act.
There is nothing we do in our modern lives that doesn't, in some way, involve interstate commerce and thus there is no where Congress can't go and nothing it can't do unless we find a way to leash it. Conservatives have to decide if we really care about federalism, a limited federal government and the original understanding of the Constitution. If so, then this case should bother us. If not -- if our expressed concerns about federalism are just a fig leaf to justify particular policy results we favor -- then we're as bad as Congress.
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4 comments:
Well said.
Very interesting.
I hadn't thought of it that way.
You have nicely set out the time-honoured dilemma that keeps conservatives lying awake at night trembling about democracy's inherent fragilities. It seems to have troubled the Founders mightily. How can freedom, federalism and constitutionalism withstand the whims of the outraged masses? In the 19th century and well into the 20th, the feared image was the hungry mob in the streets, which is why the Church and European aristocrats were so reactionary. If you study the history of the 1930's, their fears were not entirely misplaced. But today it's more the Starbuck's crowd full of self-righteous boomer morality and determined to have their way whatever it takes. Judicial activism, federal gov. power grabs, the destruction of the presumption of innocence, especially in high profile prosecutions, IRS summary seizure powers, and lots of other deaths by a thousand cuts have seriously undermined any notion that democracy has to be built on rules and restraint to survive in any meaningful sense. Conservatives have to be careful here too. Not every objection to things like The Patriot Act should be dismissed out of hand.
This issue separates conservatives from libertarians, who tend to argue as if the foundations were eternal and so solid there is no need to worry about them--just put government into reverse wherever, whenever, and wonderful, magical results will come out the other end.
The problem is that to most folks constitutionalism, federalism, etc. are boring when compared to saving abused animals or stopping climate change or whatever. Conservatives are boring too. Just last night my wife and I were watching a CNN documentary on Diana, who my wife always loved. It was very sanitized and painted a poor hurting beauty betrayed by Prince Schmuck and his cold family, until she finally comes into her own. Afterwards, I unwisely put the case for the defence--that she arrogantly and recklessly undermined the whole system by deciding to crown herself and compete with the Royal Family rather than just walk away quietly with a big settlement. Treated her to a little Baghot. Bad career move. I went to bed haunted by the image of Buckingham Palace burned to the ground by hordes of enraged Shes vicariously scorned and mistreated. Actually, it almost was, wasn't it?
BTW, I always found Orrin very unconservative on this score. He never seemed to care whether some malfeasor was convicted in state court, federal court or just lynched. In fact he seemed to think trials were a waste of money and that an arrest should suffice.
If we claim to be a country where the law rules, then we need to follow the law or change it. That goes for arrogant athletes as well pious wimps. What Vick did, although disgusting in the extreme, doesn't seem to be against any law -- resorting to Interstate Commerce is quite the stretch.
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