How much does it cost to buy a constitutional amendment?

How much do you think it would cost to amend the Iowa Constitution? To fund an amendment to the U.S. Constitution? Or, the constitutions of all 50 states? What staggering amount would you have to cough up to amend all fifty-one constitutions? We’re about to find out.

An attempt to amend all state constitutions as well as the federal constitution to include the rights of victims is a goal of billionaire Dr. Henry T. Nicholas.

Known as Marsy’s Law, the proposal is named for a California resident, Nicholas’ sister Marsalee (Marsy) Nicholas, who was stalked and murdered by her ex-boyfriend and neighbor. Marsy’s mother and brother walked into a grocery store one week after the slaying and were confronted by the accused murderer. The family had no idea that the accused, Kerry Michael Conley had been released on $100,000 bail. [Subsequently convicted of 2nd degree murder, he died in prison of natural causes at the age of 53.]

Amending the Iowa Constitution, or any constitution for that matter, is serious business. Changing a constitution should not be taken lightly. An amendment to a constitution should not be controversial, or at the least, it should have minimal or token opposition. Adopting Marsy’s Law as a constitutional amendment is highly controversial.

Governor Kim Reynolds has indicated in her Condition of the State address that she will call “for a constitutional amendment enshrining victims’ right in the state’s constitution”.

Currently, voters in a dozen states have approved constitutional amendments to adopt some form of Marsy’s Law. However, the Montana Supreme Court has struck down its version of Marsy’s Law as “void in its entirety” because when “voters were required to vote ‘yes’ or ‘no’ for (the amendment) in its entirety, they were forced to vote for or against multiple, not closely related, changes to the Montana Constitution with one vote”. It’s that statement that has many organizations, including the ACLU, the Iowa Coalition Against Sexual Assault, the Iowa Coalition Against Domestic Violence, and dozens of newspaper editorial boards (including the NY Times), strongly opposing the enactment of this measure.

The Marsy’s Law movement originated in California with Proposition 33 in 2008. The California initiative includes 17 rights in the judicial process, “including the right to legal standing, protection from the defendant, notification of all court proceedings, and restitution, as well as granting parole boards far greater powers to deny inmates parole.” Those rights are codified in Iowa Code Chapter 915. However, the proposed amendment goes far beyond that.

Proponents in Iowa cite a couple reasons for their support of this proposal. First, they claim that those rights in Chapter 915 can go away, easily. They envision a gutting of victims’ rights provisions in Chapter 915 and therefore the need to enshrine the rights into the constitution. That’s a nonexistent probability. What group of legislators would commit political suicide by denying victims the rights already statutorily provided? Next, proponents say victims should have rights equal to those guaranteed to defendants. But that’s not what they are seeking. The current proposals give victims the right not to be deposed (among other amenities). Rights no criminal defendant has, nor should have.

Consider this: Every constitutional right is available to all citizens, and those rights protect the citizenry from the government and the government alone. Marsy’s Law protects one citizen from another. Further, the concept of equating rights to protect one from the government as compared/opposed to protecting one from another crosses the line between civil and criminal laws. Due process is a right proffered by constitutional law. Due process is not a component of civil law.

A Montana county attorney explained that Marsy’s Law was well-intended, but aside from depriving Montana voters “of the ability to consider the many, separate ways it changed Montana’s constitution” it failed to “explain the significant administrative, financial, and compliance burdens its unfunded mandates imposed upon state, county and local governments while jeopardizing the existing rights of everyone involved with the criminal judicial system.”

As a matter-of-fact, the administrative, financial and compliance burdens are exactly what has led some South Dakota legislators to consider repealing the constitutional amendment. South Dakota, the first state to enact Marsy’s Law after California, has experienced high costs in administering the provisions of the law, and in some cases, the law intended to protect victims has actually hampered investigations. Legislators are promising to add statutory rights for victims before calling for a total repeal. Those statutory rights offered are the same as Iowa has provided for years.

There is also the problem with the word “victim”. Who is and who is not a victim? A former Iowa prosecutor training coordinator once said that “there are no victimless crimes.” That can be interpreted as saying that when an Iowa county attorney prosecutes a defendant, that county attorney is prosecuting on behalf of the state. The State is the people of Iowa. We are all victims of the crime. The court heading in a criminal matter is always: “State v. ____”.

A good Democrat wanted a representative of Marsy’s Law to speak at a county central committee meeting. He insisted that the issue was non-partisan. It is. That’s why it shouldn’t be discussed at a partisan party function. It shouldn’t be discussed by Iowa legislators, either. Money should not be able to buy constitutional amendments.

This article was originally published in the Prairie Progressive – Winter, 2019 issue.

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