The Foreign Service Journal, October 2003

Yet that distinction is pre- cisely what foreigners don’t get about the death penalty in America: in the overwhelming majority of cases, it’s a state matter. Our Constitution clear- ly provides that the states have the final say in establishing penalties for crimes committed within their jurisdictions. Some 38 states have opted for a death penalty with various restrictions. Twelve others have rejected it as vehemently as have those “civilized” nations preaching to us about it. That spectrum of differing approaches is in keeping with the way our political system is designed to work. But perhaps our foreign friends can be forgiven for not knowing that. For the truth is, many Americans don’t know how the system is supposed to work, either. Ashcroft is one of them, if his jackbooted, strong- armed mishandling of the Malvo case is any indication. Or he may have simply forgotten the federalism he claimed to champion when he was a United States sen- ator from Missouri. The principle of federalism sim- ply means that those powers not explicitly given to the federal government are — per the 10th Amendment to the Constitution — delegated to the 50 individual states. Granted, this has caused a few problems in America’s past (to put it mildly). The states’ rights vs. federal government struggle started in the early years of the republic, and slavery was usually the catalyst. Throughout the antebellum period, Southerners insisted that the issue of slavery — whether to contin- ue or abolish it — was strictly a state matter. (In fact, many Northern states had slavery at one time and did, indeed, abolish it.) But when Americans spread west- ward and formed new states, the issue of whether they would be slave or free increased the tension over slav- ery. The debate became rancorous with the passage of the Fugitive Slave Law in 1850, arguably the most abominable piece of legislation ever passed in this country. That law called for federal marshals to retrieve slaves who had run away to the north to secure their freedom, and made those who aided and abetted escap- ing slaves subject to prosecu- tion. In response, Wisconsin state authorities openly defied federal authorities who wanted to try a group of people who had helped free a captured fugitive slave. Officials in other Northern states put the federal government on notice that they would resist by force any attempts to enforce the Fugitive Slave Act and claimed states’ rights as their justification. The resulting tension was one of the main factors leading to the Civil War — or the War Between the States, as Southerners like to call it. After the North’s victory in 1865, two amendments were added to the Constitution to define more explic- itly the boundaries of “states’ rights.” The 13th Amendment, ratified in 1865, abolished slavery, while the 14th Amendment, ratified three years later, estab- lished the principle of due process. Missing the Point The argument over how much power should be shared between state governments and the federal government continues today, some 214 years after the Constitution was ratified. But foreign critics of “America’s” death penalty — and their American friends as well — should pay special attention to the wording of the 14th Amendment. It says that “(a)ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life , liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” [my italics]. In other words, even under the 14th Amendment — perhaps the most comprehensive and revolutionary of all the additions to the Constitution since 1789 — the death penalty is explicitly allowed so long as due process is followed. And in the overwhelming majority F O C U S O C T O B E R 2 0 0 3 / F O R E I G N S E R V I C E J O U R N A L 41 The notion that being under 18 somehow makes you incompetent to stand trial is a fantasy our foreign friends, and their American sympathizers, should abandon.