June 16, 2011

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'"

That quote has long been on my list of best quotes about federalism in the history of the Supreme Court, so I was pleased to see it quoted in a Supreme Court case that came out today, Bond v. United States. It's a quote within a quote, and now it's a quote within a quote within a quote.

One thing I like about it, aside from the sound principle — that the constitutional structures of government were devised to protect the people — is that Justice O'Connor, in New York v. United States, was quoting a Justice Blackmun opinion that was a dissent from an opinion she wrote one year earlier. In that earlier case, Coleman v. Thompson, Blackmun had chided her for relying on federalism as if it existed for the sake of the states rather than for the people. It seemed as though Justice O'Connor felt a need to get on the right side of that principle.

In today's case, Bond, the Blackmun/O'Connor idea about federalism was used to explain why a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Bond made a federalism-based constitutional challenge, and the Court of Appeals said that she lacked standing because she wasn't asserting her own legal rights or interests — as required by standing doctrine. In this view, only the states have standing to raise the issue that Congress has exceeded its enumerated powers and made a crime in an area that is reserved to the states under the 10th Amendment.

Intuitively, you should sense that the Court of Appeals was wrong. Here's this woman, charged with a crime that is — if she's right about the scope of Congress's power — a nullity. She's supposed to endure conviction and punishment on the theory that only the state is allowed to say that Congress overstepped its power? That's crazy.

Do you see how eloquently the old Blackmun/O'Connor quote explained why it's crazy?

Because the limitations of federalism exist to protect citizens from the excesses of power, when Bond argues that there is a federalism limit on congressional power, she is asserting her own legal interests.


paul a'barge said...

pretty cool ... unless you're the pregnant woman with the chemicals on her door knob ... and this crazy whacko jealous woman out to kill her.

Anonymous said...

Althouse, you almost sound like you believe in the Constitution. How gauche these days.

Anonymous said...

"unless you're the pregnant woman with the chemicals on her door knob ... and this crazy whacko jealous woman out to kill her.

The obvious answer to which is that it's a problem the state is well within its ability to handle. You don't have to make a federal case out of it (pun, or whatever you might call it, intended.)

Fred4Pres said...

It is an interesting opinion and a great quote. Ironic that Blackmun argued federalism with that dissenting opinion, and gutted it with his majority opinion on Roe .

Moose said...

Whoa. She's writing about law. Serious deviation from the norm.

Fred4Pres said...

Mrs. Bond seemed a tad upset. I am surprised she did not direct her wrath to Mr. Bond.

Anonymous said...

"... she is asserting her own legal interests."

In fact, any citizen who sued would be asserting their legal interests.

Everyone has standing!

Because laws PREVENT people from doing things that they PERCEIVE to be illegal even if they are unconstitutional, everyone has standing to sue even if they've not been charged with violating a particular crime.

Maybe they want to commit that act, but the law and its consequences are estopping them.

Of course, I don't expect my theory of the law to come into common acceptance for at least another 100 years.

Stupid fucking lawyers will take that long to finally agree with me.

Bookmark this comment, Ann, and I'll see you back here in 100 years.

Anonymous said...

"I am surprised she did not direct her wrath to Mr. Bond."

It's the neverending story, isn't it? After all, Huma doesn't blame Flashy Tony either.

Men cheat because women have this particular blind spot.

Dust Bunny Queen said...

Men cheat because women have this particular blind spot.

Not all women.

Anonymous said...

Althouse: " ... a criminal defendant had standing to challenge the constitutionality of the federal crime she was charged with (the Chemical Weapons Convention Implementation Act of 1998). (Carol Anne Bond had put caustic chemicals on a doorknob, door handle, and mailbox likely to be touched by a woman who had gotten pregnant via Bond's husband.)

Paul a'barge: "pretty cool ... unless you're the pregnant woman with the chemicals on her door knob"

Paul what you must realize is that the defendant in this case could have been charged with regular old attempted murder.

Paul Harvey: But now we hear ... the rest of the story..."

"Federal postal inspectors videotaped Bond stealing mail and putting poison in the muffler of Haynes's car. Bond was indicted for stealing mail and for violation of the Chemical Weapons Convention of 1993."

That's right ... Bond wasn't even being investigated by the police. She was being investigated by federal postal inspectors.

Wait .. what?

That's right ... post office cops. Newman on steroids. These people made a mistake. And they made a mistake because the mail never stops. It just keeps coming and coming and coming. There's never a letup. It's relentless. Every day it piles up more and more and more and you got to get it out but the more you get it out the more it comes and then the bar-code reader breaks and then ITS PUBLISHER'S CLEARINGHOUSE DAY.


ricpic said...

How can anyone who loves that quote about the diffusion of power EVER vote for a statist, which is to say all Dems and most Pubbies?

holdfast said...

As a Canadian, I didn't even see why there was an issue, but that's because until 1982, the only Canadian constitution was the BNA Act 1967 which didn't contain anything like a bill of rights, so when the Supreme Court of Canada went looking for reasons to strike down unjust laws, they tended to look to the federal division of powers - for instance, a provincial government law which discriminated against Mormons (or was it Quakers? Some odd sect) was unconstitutional because religious discrimination was part of criminal law and therefor was a federal area of responsibility.

cubanbob said...

leave it to the feds for ridiculous over charging. what was it about charging her with plain old fashioned attempted murder? no they too boring, had to charge her like she was some quasi-nation state.

Anonymous said...

Meanwhile, Barack Obama's jackbooted Nazi's have shut down yet another entrepreneurial business unemploying all of the workers and then fined its owners for merely trying to create some economic activity.

Fucking thugs.

clint said...

Sounds like a jurisdictional squabble. The postal inspectors, feds, had a long, expensive investigation of someone tampering with the mail. They found evidence of a much more serious crime. Passing the slam-dunk evidence to state authorities wouldn't get them a win on their office's bureaucratic scorecard, so they tried to make a case for a federal crime.

Question for the lawyers: If the courts rule that she is not guilty of violating the CWCIA, does "double jeopardy" attach with respect to state charges for whatever it would be -- aggravated mischief, attempted assault, or whatever -- on the same facts?

Carol_Herman said...

Blackmun versus the forks and plastic reindeer.

If I understand this quote correctly, it is Blackmun who assumes we've got diffused sovereign powers to protect the people.

Which is also imbedded in the 6th Amendment. Where our Founding Fathers showed that they didn't trust prosecutors. Didn't trust elected officials. And, didn't trust judges. That's why prosecutors can't really tell juries how to vote. (Though I just sat in a courtroom where I heard this tall tale told.)

Of course, I heard it in a California Courtroom. In Alhambra. And, then I heard how the 9th slapped California's supreme court silly. (For overlooking the 6th Amendment when it came to fair jury trials.)

Eventually, the court system gets it right.

But, so far? Sumi sits. And, Shirley Abrahamson has the power to throw hissy fits.

The pregnant woman got her sperm from this woman's husband. Everyone's lucky she just didn't dab the chemicals on her husband's cock.

And, if you're gonna try someone, and make a Federal case out of it, no less ... It's good that we have a court system. It moves slowly. But eventually it gets to affirm the governments and their federal cases can be a crock of shit.

Hagar said...

There has been a number of cases where alleged miscreants were acquitted in state courts, so the never give ups charged them again in Federal court under Federal statutes and claimed this was not double jeopardy because it was done in another judicial system (though still ours) and got away with it, which I assume would also be a valid presedence in the reverse direction as well.

Mickey said...

"Because the limitations of federalism exist to protect citizens..."

I thought you were going to say "exist prior," as in a priori. Don't know why. Maybe it was the italics.

Freedom exists prior to limitation, so any limitation of limitation would necessarily exist prior as well.

See, I can do this post grad thing.

Franklin said...

The Constitution is over 100 years old and was written by slaveholders and onlys says black people are 3/5 human. We can ignore any part of it we want except the part where it says women have the supreme, unalienable right to have abortions.

traditionalguy said...

What's the matter with the easy to roll over Supremes? That old style Federalism has been a relic since April 12, 1865. The Executive/Commander-in-Chief over in the White House will decide all Federal/State issues as he has since his Army finally conquered the States that attacked his Army. Even the State National Guard Units are under his command since then. How many Armored Divisions can the Chief Justice Roberts put into the field anyway?

Hagar said...

Federalism is not only a passive defensive works against tyranny; it is also actively the best way to govern a large and heterogeneous nation.

windbag said...

Our founding fathers put forth the concept that there are three parties at work in the human experience: our Creator, we the people, and the government. The Creator granted rights to the people. They are the primary players. The government is the logistical mechanism to organize and execute the enjoyment of those rights.

Government needs to be subject to the people. Whatever layers of bureaucracy we set in place is beneath the people in the chain of command. Any citizen has a right to question any governmental agency that presumes to regulate the citizen's exercise of his Creator-given rights.

traditionalguy said...

But in reality, it is only a Congress willing to impeach a President (E.g., Andrew Johnson) that can stand up to an imperial Presidency. The SCOTUS is the cheer squad at the match those two play. Lesson: win big in the Congressional elections. The Radical GOP boys under the leadership of Thaddeus Stephens had a 12 year dominance of the Presidence since it was 12 years before the Confederate States' votes were admitted back in.

Lem said...

I was going to say I'll have my federalism shaken.. not stirred. But that would be lame.. and I'm Lem.

1775OGG said...

So now blogger is FUing the rss feed. No idea whether this is just related to Althouse's blog or in general to blogger! Strange. This just seemed to happen a few minutes ago; it's now 2102.

Carol_Herman said...

"Same facts?" The state won't be touching this one with a ten foot pole!

None of the postal "evidence" can come into the State's case. (There ya go. Why rouse double-jeopardy?)

IF the "pregnant woman" goes after anyone, now, she needs to go after Mr. Bond for support.

She didn't touch anything that got contaminated, so she didn't get injured. Which would have given her an ability to claim injury.

Pronto Tonto, there are no shortages of lawyers who take cases on contingency.

Going Postal is so dumb. But I didn't know it affected the agency!

I did know I once picked up a dime that was on the floor, when I was in the post office to send mail. And, the clerk behind the counter told me she wouldn't touch it?

Gee, I was puzzled. But she told me postal inspectors purposely dropped dollar bills on the floor, and if any worker picked it up they'd be fired!

Titus said...

There have not been any tit postings in this place and it is a shame.

I want tits and I want them now.

Now bring on the tits Marge.

Patrick said...

Nice to see the opinion was unanimous, that all of the Justices could see the obvious.

Anonymous said...

A couple of beers, and you lost me. Look, government wasn't suppoused to be this complex. This is only something a lawyer would love. The BILL OF RIGHTS. PLAIN, SIMPLE, EASY TO UNDERSTAND... government and its' lawyers have constantly attacked them, changed the meaning and added restraints - to the point where they can't be understood. Government has LONG AGO exceeded its' authority, infringed on the rights of the TRUE sovereigns (citizens) and is no longer relevant. Of course you ignore it at your own peril/risk - but being free was never easy.

Criminals sit on the juduicial benches today. PERIOD.

Anonymous said...

BTW - (not for CITIZENS) but I do believe the antiquated practice of "Trial by Ordeal" needs to be re-introduced for Politicians/white collar criminals/public servants and especially Judges/Lawyers.

Anonymous said...

IIBTW - The People need to bring this quaint little invention back-

For all those who have perverted the (non-negotiable) Bill of Rights....


Anonymous said...

You WANT tits - you got tits -


Carol_Herman said...

After all these years, I think it's been proven our Founding Fathers did something right. Because people no longer bring rope to the courthouses.

And, we fixed the damage accepting slavery wrought. And, slavery was a "gift" from the British.

Meanwhile, I wondered why was it so easy to get Africans onto ships ... where they were having their first experiences at "sailing away."

You know, there are Darwin Awards for those who lack the skills set.

I'm not hard on our Founding Fathers. They were at the forefront of leadership against monarchies.

And, if our Founding Fathers thought men were angels, they wouldn't have needed to write the Constitution in the first place.

Titus said...

Thanks Enir, that was very sweet.

Beldar said...

Interesting that the DoJ confessed error in the court of appeals' ruling, but counsel was appointed to argue the abandoned position before the SCOTUS. (Cf. pending appeals regarding DOMA, which Obama's Justice Department is not defending either.)

I like this post, Prof. Althouse, and agree with you about the quotation's explanatory eloquence. I shall try to remember it. Thank you.

DKWalser said...

Is it just me, or does this principle also argue against the constitutionality of Obamacare?

Anonymous said...

Sorry, but I have to disagree with Blackmun's statement. In the U.S.A., We the People are sovereign, we have hired some guys to do some dirty jobs for us, and have granted them an enumerated set of limited powers to enforce a set of rules. Rules that we agree to live by, and accept the consequences for rule-breaking.

The purpose of these dirty jobs are to secure for all of us some of our rights and liberties granted to us by God. Federalism partitions these powers to make it difficult for the dirty job holders to abuse them.

Liberties are not derived from sovereign power or its diffusion. Blackmun muddied the water with this statement.

Liberty is a grant from God, governments are granted enumerated powers to secure Liberty. Federalism is a means to make difficult the abuse of powers. There, FIFH.

Even simpler:
Rights and Liberties <-- God
Secure Rights and Liberties <-- Powers from We the People
Check Abuse of Powers <-- Allocate Powers Widely

gerry said...

"State sovereignty is not just an end in itself: 'Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.'" [emphasis added]

"Because the limitations of federalism exist to protect citizens from the excesses of power"

Without State sovereignty, engaged in continuous struggle with federal expansion, individual rights become not innate (endowed from a Creator), but permitted by bureaucrats.

"Limits of federalism" do not exist without sovereign states. We need to return to indirect election of senators to focus the Senate upon what the States legislatures desire, and not upon what special interests purchase with perpetual election every six years of puppets. That arrangement will dissipate lobbying somewhat as well!

Unknown said...

Further vindication of the principle that States have not rights, but rather powers. Rights belong to the People, and their exercise is surrendered only to render power to the Sovereigns.

Ken B said...

Welcome to the side of those who think Obamacare unconstitutional Ann. You cannot really argue the commerce clause gives the federal govt unlimited power now can you?

Richard Dolan said...

Beldar: The opinion notes that the DoJ's confession of error was limited and still sought to preclude Bond from raising various constitutional arguments as to the statute's invalidity. The opinion rejected the DoJ's attempt to slice-and-dice the constitutional arguments using standing doctrine.

This case is fascinating for what it implies about the upcoming SCOTUS battle over ObamaCare. There has been lots of noise in the lower courts about whether the States have standing, whether individual plaintiffs have standing, etc. This opinion will be cited on all of those points, in support of the argument that both the plaintiff-states and individual plaintiffs have standing, on Tenth Amendment/federalism grounds, to contend that Congress lacked the power to adopt the individual mandate.

In Bond, the SCOTUS remanded the case to the Third Circuit to consider, in the first instance, whether the 'necessary and proper' clause can sustain the statute's constitutionality. That too is a central claim in the ObamaCare litigation. Bond may bring that issue back to the SCOTUS before Obamacare gets there.

It's nice that, in Bond, Justice Kennedy reached back to use Ann's favorite quote about federalism. Andit's a good quote. But the Bond case is worth paynig attention to for more immediately pressing reasons than that.

MFindlay said...

Ann, I wish I'd had you as a professor when I went to law school.

Dopey said...

I really like these con law posts. Hope that we will have more now that the excitement in Madison has slowed down.

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