10th Amendment

  • February 22, 2011
    Guest Post

    By Martin Magnusson. Mr. Magnusson is an associate at Day Pitney LLP.
    In 1997, the United States Senate ratified the Chemical Weapons Convention, an international treaty that outlaws the production, stockpiling, and use of chemical weapons. As a signatory to that treaty, the United States agreed also to criminalize private individuals' production, stockpiling, and use of chemical weapons. Accordingly, Congress enacted legislation that made it illegal for any person knowingly to "develop, produce, otherwise acquire, transfer directly or indirectly, receive, stockpile, retain, own, possess, or use, or threaten to use, any chemical weapon."

    Thankfully, the United States has had few occasions to bring chemical-weapons charges under this law. One such prosecution, though, is currently before the United States Supreme Court, which will hear oral argument today in Bond v. United States.

    The defendant in that case, Carol Anne Bond, was a microbiologist who had been married for several years but couldn't bear a child. When Ms. Bond's best friend announced that she was pregnant, Ms. Bond was excited. When Ms. Bond discovered that her husband was the child's father, though, her mood understandably soured. She vowed to get revenge against her one-time best friend and tried, at least 24 times, to poison her with lethal chemicals that she stole from work and ordered online.

    Ms. Bond was ultimately charged with possessing and using a chemical weapon, in violation of the criminal statute that implemented the United States' treaty obligations under the Chemical Weapons Convention. At the district court, Ms. Bond unsuccessfully argued that when Congress passed this statute, it exceeded its powers under the Constitution. The district court rejected that argument, but Ms. Bond continued to pursue it on appeal.

    Ms. Bond's position makes intuitive sense: The Tenth Amendment expressly provides that "[t]he 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." And, unlike other federal statutes that address assaults, the law under which Ms. Bond was prosecuted includes no requirement that the alleged assault occur within the special jurisdiction of the United States, that the assault have an effect on interstate commerce, that the victim be a person or institution with recognized federal status, or that some other federal interest be involved. It also includes no requirement that the government prove a federal interest as an element of the offense. As such, the law criminalizes conduct with very little connection to a legitimate federal interest.

  • November 30, 2010
    It appears not enough, for some proponents of a weak federal government, that a raft of lawmakers was just elected to Congress on calls for severely limiting the reach of the federal government.

    During a panel discussion at the Federalist Society's recently concluded 2010 National Lawyers Convention, Michael Stokes Paulsen, a law professor at University of St. Thomas Law School, slammed Washington, D.C. as remaining "in substantial part enemy-occupied territory for those who favor any serious meaningful, permanent reforms that would effectively limit national government," The Washington Post reports.

    Paulsen, participating in a panel discussion called, "Enumerated Powers, the 10th Amendment and Limited Government," said the only way to limit the work of the federal government was to hold a constitutional convention. He acknowledged that the idea of a constitutional convention has caused a "split between the buttoned-down, starched-shirt real, true conservative conservatives who fear a constitutional convention and the rabble-rousing, redneck tea party types who say, ‘Yeah, bring it on.'"

    The Post's Robert Barnes called the discussion, with several progressive constitutional scholars urging "caution and, judicial modesty," a bit "jarring." That was because the panel discussion followed remarks from the Senate Republican Minority Leader Mitch McConnell who told the gathering that a seriously limited federal government was on its way. McConnell said his colleagues in the forthcoming Congress would work to scuttle funding for the Obama administration's landmark health care law, while working in the courts to diminish it.

    Harvard Law School professor Mark Tushnet, a participant on the Federalist Society panel, pushed back against calls for amending the Constitution, saying, "It's very hard to defend amending the Constitution on the grounds of today's current viewpoint," especially the idea of limiting the ability of federal lawmakers. Tushnet said, "Amending the Constitution to preclude future democratic decision-making, that one's a little puzzling to me."

    George Washington University law school professor Jeffrey Rosen, in an article titled "Radical Constitutionalism" for The New York Times, notes that senator-elect Mike Lee of Utah has said the Constitution already allows for the shuttering the Departments of Education, and Housing and Urban Development. As Rosen notes, during his senate campaign, Lee said the Constitution "doesn't give Congress the power to redistribute our wealth." Lee, Rosen continues, also "proposed repealing the 16th Amendment, which authorizes the progressive federal income tax, and called the 17th Amendment, which allows senators to be elected by popular vote rather by state legislatures, a ‘mistake.'