The 10th Amendment Is Not a Treaty Violation

Jacob Sullum
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Posted: Nov 06, 2013 12:01 AM
The 10th Amendment Is Not a Treaty Violation
After Carol Anne Bond discovered that her husband had impregnated her best friend, the Pennsylvania microbiologist took revenge by spreading toxic chemicals on her ex-friend's car door, mailbox and doorknob. The poisonous prank was mostly ineffectual, inflicting nothing worse than a minor thumb burn.

Bond's prosecution, the focus of a case the Supreme Court heard on Tuesday, could do a lot more damage. Defending its decision to make a federal case out of what sounds like fodder for a tabloid talk show, the Justice Department argues that treaties can give Congress new powers -- a theory that threatens to destroy the constitutional division of authority between the states and the national government.

Instead of letting Pennsylvania's courts handle Bond's crime, federal prosecutors decided to indict her under the Chemical Weapons Convention Implementation Act. She received a six-year prison sentence, three times as severe as the maximum penalty available under state law.

The federal law makes it a crime to possess or use "any chemical weapon," defined as any substance that "can cause death, temporary incapacitation or permanent harm to humans or animals" unless it is intended for "peaceful purposes." Hence a host of widely used chemicals -- chemicals that are sitting right now in your garage or under your kitchen sink -- can be converted into contraband by evil thoughts.

A can of bug spray becomes a chemical weapon as soon as you think about deploying it against the dog that keeps pooping on your lawn. As Supreme Court Justice Samuel Alito observed during an earlier phase of Bond v. United States, even a bottle of vinegar can be a chemical weapon if you pour it into someone's goldfish bowl.

On its face, this statute authorizes federal intervention in any case involving a malicious use of chemicals, no matter how local, ordinary or trivial. But what authorizes the statute? According to the Justice Department, the Chemical Weapons Convention does.

In other words, instead of going through the arduous process of amending the Constitution, the president and the Senate can expand the federal government's powers by agreeing to treaties. If the power to regulate interstate commerce cannot be stretched to accommodate a federal ban on possessing guns near schools or a mandate requiring everyone to buy government-approved medical coverage, a treaty dealing with firearms or health care will do the trick.

This broad view of the treaty power has dire implications for federalism. It suggests that Congress could cite international agreements as an excuse to override state decisions in areas such as drug policy, family law and medical regulation. In fact, any state law would be subject to a federal veto if it arguably conflicted with the aims of a treaty.

The Justice Department concedes that "the Treaty Power would not permit Congress to breach prohibitory words applicable to all exercises of federal power." That means a treaty cannot authorize the federal government to violate the First Amendment by banning hate speech, the Second Amendment by confiscating handguns or the Fifth Amendment by allowing punishment without due process. But somehow a treaty can authorize the federal government to violate the 10th Amendment by usurping powers "reserved to the states."

That dubious distinction reflects a fundamental misconception about the Constitution, which was designed to protect liberty primarily by limiting the federal government to specifically enumerated powers. The rights mentioned in the first eight amendments were literally an afterthought -- not because they were considered unimportant but because the federal government, as constrained by the Constitution, had no power to violate them.

Two years ago, when the Supreme Court first considered Carol Bond's case, it unanimously ruled that she had a right to challenge her prosecution as a violation of the 10th Amendment. "By denying any one government complete jurisdiction over all the concerns of public life," Justice Anthony Kennedy explained, "federalism protects the liberty of the individual from arbitrary power." That is why letting treaties trump federalism is hazardous to your freedom.