Posted on 10/19/2010 12:18:15 PM PDT by Lurking Libertarian
The Tea Party’s favorite part of the Constitution — the 10th Amendment, which limits federal power — arrived at the Supreme Court last week. In keeping with the spirit of the times, it came wrapped in the plot of a soap opera. *****
Ms. Bond, a microbiologist, certainly tried. On about two dozen occasions, she spread lethal chemicals on her friend’s car, mailbox and doorknob.
Ms. Haynes, who managed to escape serious injury, complained to the local police. They did not respond with particular vigor. After checking to see whether the white powder on her car was cocaine, they advised her to have it cleaned.
Federal postal inspectors were more helpful. They videotaped Ms. Bond stealing mail and putting poison in the muffler of Ms. Haynes’s car.
When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.
Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.
Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.
She relied on the 10th Amendment, the one so beloved by Tea Party activists. It says that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”
(Excerpt) Read more at nytimes.com ...
I don't think anybody ever intended for the state government to get one shot and the federal government to get a second.
Make up your mind who's in charge, at least.
I am not sure of the motive of Ms. Bond, but is it really wise to use the full weight and authorities of the Federal Government to go after an individual harassing another individual?
Ms. Bond (if guilty) should be punished, that is not the question. The question is do we really want the Federal Government to get involved in these routine day to day crimes? If so, where are the boundaries?
(rhetorical question)
Mrs. Bond’s motive was: the other lady was pregnant with Mr. Bond’s child.
SCOTUS has heard such cases, and has said that double jeopardy doesn't apply when one prosecution is by a state and another is by the feds. Google "dual sovereignty doctrine."
A classic case of “do the ends justify the means?”.
And assuming they do, how do you reclaim the power surrendered to the courts and the federal government?
This is a good example of why there should be a “Second Court of the United States”, created by a constitutional amendment.
It would be directly below the Supreme Court of the United States in authority, but above the federal District Courts. Importantly, the Second Court would *not* itself be a federal court.
It would be composed of 100 State judges, appointed by the individual State legislatures, as originally were US Senators, before the 17th Amendment took that power from the States and left the people without the protection of the States from federal authority.
It would serve two primary purposes. First of all, each year, some 8,000 cases are appealed to the Supreme Court, of which it can hear just a dozen or two. Since they are so overburdened, most of these cases must fall back to whatever the Circuit Courts decided, for better, or often, for worse.
A large percentage of these cases should never have entered the federal courts, as they are clearly State jurisdiction. There is no federal issue involved, though their pretends to be. So the Second Court could decide to strip them of their federal involvement entirely, and return them to State jurisdiction.
This would be by a panel of these State judges, or if necessary, it would be heard by the entire Second Court. Only if it made it through that gauntlet, regarded by those judges as a *real* constitutional question, could it make it to the docket of the SCOTUS. Reducing the caseload of the SCOTUS to perhaps a manageable 200-300 cases a year.
An example of this would be that say, the State of Maine decided to execute condemned prisoners by hanging. A federal judge intervenes and says, “No, that is cruel and unusual. You can only execute by (spins wheel), tickling their feet with ostrich feathers!”
When the case arrives at the Second Court, they decide that, no, hanging is neither cruel nor unusual. This is not a federal matter. So the case is remanded to the State with permission to carry out their sentence as they see fit.
The other primary jurisdiction of the Second Court of the United States would be original jurisdiction, to hear cases brought by the States against the federal government, or by the federal government against the States.
Right now, states must go through their State federal District judge, then to a panel of their federal Circuit Court, then the Circuit Court as a whole, and finally to the Supreme Court, a process that takes years and wastes time, because no State issue against the federal government is decided at a level lower than the SCOTUS, unless somebody just quits out of exhaustion.
So instead, if the States object to a new federal law, regulation, or executive order, they go right to the Second Court of the United States, where the States as a group decide if the federal action or authority is acceptable. If the Second Court rejects it, by a simple majority, it can still be appealed by the administration to the SCOTUS, but if a 2/3rds majority of the Second Court find against it, it is dead.
So, in effect, any part of the federal government can be eliminated by a 2/3rds majority of the Second Court, if a State challenges it, or at least whatever it is, is forwarded to the SCOTUS for constitutional review. That is, only half the States may say that the Department of Education should be abolished, but their recommendation to the SCOTUS says that they think it is constitutionally questionable, so needs to be either justified or eliminated.
It cannot “just exist” because congress wants it to. It *must* be justified as within federal authority by the SCOTUS. No weasel words allowed. If they can’t justify it, it dies.
Importantly, for the first time in US history, there would be a constitutional means to reduce the size of the federal government in an orderly process, as determined by the individual States, not the federal government itself.
Justice Clarence Thomas created a superb thesis in his concurrent decision in MacDonald vs. City of Chicago. It revitalized the 14th Amendment protections of the people, by the federal government, against abusive State governments.
However, with the 17th Amendment, the Direct Election of Senators, the power of the States to protect their citizens from an abusive federal government was lost. So while the people are protected from the States, they are not protected from the federal government, as they should be.
A Second Court of the United States would renew this protection, and return to the States their voice in the operation of the federal government. And it would do much to return the federal government to order.
To quote Sam Clemens, "the law is a ass."
I think that was Charles Dickens, but yeah, you're right.
I think that was Charles Dickens, but yeah, you're right.
When it came time to charge Ms. Bond with a crime, federal prosecutors chose a novel theory. They indicted her not only for stealing mail, an obvious federal offense, but also for using unconventional weapons in violation of the Chemical Weapons Convention of 1993, a treaty aimed at terrorists and rogue states.She might have a problem with her argument. Article VI of the Constitution says this:Had she been prosecuted in state court, Ms. Bond would most likely have faced a sentence of three months to two years, her lawyers say. In federal court, she got six years.
Ms. Bond’s argument on appeal was that Congress did not have the constitutional power to use a chemical weapons treaty to address a matter of a sort routinely handled by state authorities.
...So if her method of distributing a chemical weapon is a violation of the treaty then it is also a violation of federal law. If a jihadi terrorist from some other country, visiting this country legally or illegally, had committed this same act of attempted murder or terrorism against a citizen or citizens of this country, we would certainly want to throw every possible charge against him, including the provisions of this treaty which have been established as part of the supreme law of the land.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
...
I see a lot of problems in your reasoning. For example, are you saying that everything under your kitchen sink falls under the purview of the Chemical Weapons Convention if they're used in an attempted murder?
The intent of the perpetrator matters a lot in the law. There's a huge legal difference between an act of terror and the violence that occurs in the context of a love triangle.
The Supremacy clause doesn't make the Constitution, federal laws and treaties equal with one another, but rather declares these things to be superior to any act of individual states. Federal laws and treaty enforcement are both subject to constitutional limits (otherwise, the Constitutional limits on power are meaningless).
Bond's argument is that, according to the Constitution's limits on federal power, this application of the Chemical Weapons Convention is illegal. That seems sound to me.
I like the concept you describe. Now...what are the chances of it being implemented. Since it is a concept that would make government responsible and put power back in the hands of the people, not very likely. Sad really.
Either that, or the NYT pays him extra for dissing the Tea Party
IMHO, judges like to make it seem like questions of 'cruel and unusual' are much harder than they really are. The reality is pretty simple: if the jury that tries a case would determine, based on their evaluations the facts including things like witness credibility, that a particular punishment would be unreasonably cruel and unusual for the actual criminal acts performed by the defendant, such a punishment would be cruel and unusual, and thus illegitimate. If a jury feels that a particular punishment would be just and appropriate, chances are, it is.
Today, the government declines to tell jurors about mandatory sentencing laws, and forbids defendants from telling them. The reason is simple: if jurors knew about such laws, they would do their duty and acquit rather than impose illegitimate punishments.
After many years of striving to reach some objective criteria for pornography, the SCOTUS finally accepted the notion of “community standards”, for it, and it alone.
Yet they just cannot reconcile that such community standards should apply in other ways, to Bill of Rights civil rights, as well as to extrapolations of those, such as a “right of privacy”, which they used to justify Roe v. Wade.
Instead, they allow the federal government to impose the perversity that it wishes to impose throughout the US, in increasingly bizarre ways, no matter how objectionable it is to the rest of the nation.
Suppose it's pretty well established that a person committed some actions which are sufficient to constitute a violation of statute, and which nearly everyone would agree should be a crime. A supposed eye-witness to the actions indicates that the defendant's actions were particularly heinous and go far beyond what would be necessary to establish a criminal violation, but the defendant claims his actions were relatively minor. If the witness is telling the truth, the defendant deserves 20 years hard labor. If the defendant is telling the truth, he deserves only a day or two in jail. Determining a just sentence requires determining who's telling the truth; that would seem a job for the jury.
Likewise, if cops conduct a search in unreasonable fashion, such a search is illegitimate. The Constitution is very clear on that point. Until a case goes to trial, however, nobody will be in a position to judge all the evidence regarding whether a particular search was reasonable or not; further, the reasonableness of a search may again depend upon the credibility of witnesses. And witness determination again falls within the scope of a jury's duties.
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