Posted on 12/20/2004 10:44:15 AM PST by neverdem
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December 17, 2004
"Don't make a federal case out of it," we used to tell people who blew things out of proportion. But that phrase is quickly losing its bite as the federal government expands its jurisdiction to every area of American life.
Responding to the Barry Bonds-Jason Giambi steroid scandal, Senator John McCain (R-AZ) recently threatened to bring the federal hammer down on Major League Baseball: "Major-league baseball players and owners should meet immediately to enact the standards that apply to the minor leagues, and if they don't, I will have to introduce legislation that says professional sports will have minimum standards for testing," McCain said on December 3rd. (Up next, perhaps, legislation to revoke the American League's designated hitter rule.)
The week before McCain issued his threat, the Justice Department fought in the Supreme Court to maintain the right to jail sick people taking marijuana on the advice of their doctors and with the approval of their state government. On November 29, the Supreme Court heard oral argument in Ashcroft v. Raich, a case involving two desperately ill women who use marijuana and seek protection from prosecution under federal drug laws. Acting solicitor general Paul Clement told the Court that medicine grown in one's own backyard for home consumption was a national matter, subject to Congress's power to regulate interstate commerce—despite the fact that there is nothing remotely commercial or interstate about the conduct at issue.
Those are just two recent examples of a federal government that views its jurisdiction as limitless. That's a view quite at odds with the one held by the Constitution's Framers. The document they drafted envisioned a federal government focused on national issues, such as "war, peace, negotiation, and foreign commerce," in Madison's words. Even the most devoted advocate of national power, Alexander Hamilton, agreed, explaining in Federalist 17 that under the Constitution, "the ordinary administration of criminal and civil justice" would be left to the states.
We've drifted far from that understanding. Congress's power to "regulate Commerce...among the states," which was designed to eliminate state-level trade barriers, has become a limitless font of federal power, used to regulate or criminalize behavior better left to the states or the civil law.
With commerce clause limits eviscerated, almost anything can be a federal crime. We've gone from a Constitution that mentions only three federal crimes (treason, piracy, and counterfeiting) to a federal criminal code with over 4,000 separate offenses, some of them stunningly trivial. In 2002, President Bush signed legislation making it a federal crime to move birds across state lines to engage in fights. The ban on cockfighting joined such notable federal crimes as interstate transport of unlicensed dentures (punishable by up to a year in prison), tampering with an odometer (up to three years), and pretending to be a member of the 4-H Club (up to six months). These and other offenses larded throughout the U.S. code could make for an interesting conversation with one's cellmate: "What are you in for, kid?"
But out-of-control federalization is only rarely amusing. It brings serious costs. In addition to the trivial crimes mentioned above, Congress has federalized a host of ordinary street crimes already covered by state criminal codes, crimes like arson, carjacking, and gun possession by felons. Shunting these cases into federal court causes huge delays to civil litigants and unsustainable pressure on the federal courts. Chief Justice Rehnquist has characterized the result as "a crisis in workload." Forcing the federal courts to handle workaday criminal matters crowds out civil suits and leads to huge delays for civil litigants because criminal defendants have a constitutional right to a speedy trial and everyone else has to wait in line.
Moreover, a federal government focused on everything from cockfighting to steroid use is a federal government that's not focused on truly national issues. Case in point: In the months leading up to the September 11 attacks the FBI was engaged in an 18-month-long sting operation at a brothel in New Orleans that netted 12 prostitutes. September 11 should have concentrated the mind wonderfully as to proper federal priorities, yet federal law enforcement to this day continues to behave like the local vice squad.
But the most important costs of overfederalization are the costs to the rule of law. A federal criminal code that covers everything essentially delegates to prosecutors and police the power to pick targets they think they should get rather than offenses that need to be prosecuted—leaving everyone at risk. That is unacceptable in a country that still considers itself a government of laws and not of men. It's well past time we rediscovered the wisdom of constitutional limits.
Gene HealyGene Healy is senior editor at the Cato Institute, and editor of the new book Go Directly to Jail: The Criminalization of Almost Everything.
This page printed from: http://www.reason.com/hod/gh121704.shtml
--excellent--unfortunately, it starts at the local level with at least 45% (or more) of the population wanting "government" to fix everything.
Excellent article. Thanks for posting.
Good read...thanks.
"government" can fix anything except what it broke. Are you broke yet?
In addition to so many people expecting that the government should fix things, we also have a growing trend of people thinking that they have a right to never be offended. If someone references a religion you don't believe in, you can claim to be offended and threated to sue. If someone hangs a picture of a politician you didn't vote for, you claim to be offended and demand they remove it. It goes on and on--people assume they have some protection against ever being offended and that if anything happens to offend them, it's got to be something they can sue over. It's ridiculous.
--yep--and I can't see any "fix"--we have too many lawyers, too many soreheads with too much time on their hands, too much exposure on the TV of triviality instead of real stuff, etc., ad nauseum---
Governments using tax dollars to pay for religious displays is not a question of "offense," it's a question of rule of law.
"Governments using tax dollars to pay for religious displays is not a question of "offense," it's a question of rule of law."
I didn't say anything about the government. Part of the problem is that people think that they have some right to never be offended that extends to every situation--that's why you hear an artist claiming "censorship" when a private gallery takes down his work, that's why you have Whoopi Goldberg and Bill Maher playing the "it's unfair and offensive" card when a private company cancels their endorsement deal or tv show, and that's why you have a lot of people walking around threatening to sue anyone who gives them "offense" by being religious or of a different political view. You can leave the government completely out of it and still find myriad examples of people thinking they have a right to never be offended that just isn't real.
"Don't make a federal case out of it," was the expression my Dad used most. As he was born in 1901, he was well ahead of his time.
--unfortunately, "there oughtta be a law" was almost as (or more) common---
Yep, wanting government to "fix" things that "aren't right" sure does cause a lot of trouble. Stealing other people's money to do good things almost never produces good things in the long run. But there are myriad posters here that think that we should have the federal government intervene in all sorts of situations just because it would be the right thing to do. Not the Constitutional one, mind you, but the "right thing to do."
He relayed some absolutely outrageous anecdotes about how the Federal Code is being abused by prosecutors to railroad people to jail over such petty, trivial silliness as leaving a bag of marshmallows open at a National Park, or importing lobsters (or was it shrimp? Can't remember) with the wrong length of tails. Very eyeopening, and not a little unsettling.
Congress needs to take a long, hard look at the Federal Criminal Code, and do some serious reforms.
What happened to the Federalism push of the 1990's?
Is it dead?
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