Res Judicata: The Poisoning That May Save The 10th Amendment
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A crime of passion may be about to change our Constitution.
In June, the Supreme Court allowed a Pennsylvania woman convicted of trying to poison her husband’s mistress to challenge her conviction on unusual grounds:
She argued that the federal law prohibiting any unauthorized use of the chemical amounted to a “massive and unjustifiable expansion of federal law enforcement into state-regulated domain.” The Obama Justice Department first objected to her right to make this argument and submitted a brief to the Third Circuit Court of Appeals in Philadelphia asserting that only states, not citizens, could challenge a federal law as exceeding Constitutional limits. The Third Circuit agreed and affirmed the dismissal of the challenge.
In Bond v. United States on June 16, 2011, the Supreme Court unanimously reversed and held that Mrs. Bond had “standing” to challenge her conviction based upon the argument that the federal law under which she was prosecuted violated the Tenth Amendment. The Court did not answer the question posed by her challenge ,i.e., did Congress go too far in passing the law, allowing the district court in Pennsylvania to decide that? But in allowing citizens, and not just states, to use the Tenth Amendment, the Supreme Court has taken a giant step toward restoring federalism. The opinion even reiterates the virtues of this once but no longer quaint concept:
"Federalism secures the freedom of the individual. It allows states to respond, through the enactment of positive law, to the initiative of those who seek a voice in shaping the destiny of their own times without having to rely solely upon the political processes that control a remote central power [Congress]."
In a typical congressional or presidential campaign, the candidates are constantly asked what they would “do” about everything. Americans seem not to care about the concept of federalism and ask their candidates about prescription drug prices, local public school curricula, property taxes, urban sprawl, etc. This spectacle demonstrates that there are no limits to federal power in the public consciousness. Apparently, basic civics no longer involves a serious reading of the Constitution. Why don’t candidates remember this and tell their would-be constituents to take their non-federal concerns to the appropriate level of government, their state legislators or their mayors? I’d write a check to any candidate for federal office, regardless of party, who tells a citizen, “that issue is none of my concern because under the constitution we have no power to deal with it.” I would rather hear that than be subjected to another litany of bullet points of a ten-point plan for this and that problem which the candidate doesn’t understand and has no authority to handle.
The Constitution does not provide for any federal authority over education. At the time the document was written and ratified, taxpayer-supported public schools did not exist. There is no good argument for why the federal government should have the power to fund public education or regulate curricula, or set minimum standards of achievement. (I do not include the power to desegregate here, because the Supreme Court correctly held in Brown v. Board of Education that racially segregated schools violated the equal protection clause of the 14th Amendment. There is a federal responsibility to uphold “equal protection” if a public school system violates it.) Some people may believe that the federal government can do a better job in running public schools than local officials, any maybe in some cases they are right, but that begs the question of whether the Constitution allows it. It doesn’t -- end of debate. Officious candidates who can’t understand this have no business holding a federal office where they must swear to uphold the Constitution.
It follows that there should be no federal Department of Education because its very existence diminishes the freedom of the states and the people to run public school systems as they see fit. President Bush’s “No Child Left Behind” law was both unconstitutional and unwise. It requires local school systems to meet federal criteria or be punished and lose subsidies. Many school systems in big cities could not meet the standards, and as we saw a few weeks ago in Atlanta, the result was cheating -- by teachers (mass altering of the answer sheets). Another such scandal is now emerging in Washington, D.C., where Superintendent Michelle Rhee tried mightily to turn that system around by making teachers more accountable for poor test results, including firing a principal on national television.
Patriotic public school officials chafing under this unconstitutional law should be able to sue the Secretary of Education to stop its enforcement because it exceeds Congress’ Article I powers. If those local officials are being harmed because of the federal law, such as fired for not being able to elevate their students’ scores sufficiently, they would have the standing to bring a Tenth Amendment challenge to the law.
Requiring local problems be addressed by local governments is preferable to federal action. It is not callous for a federal officeholder to tell a voter ‘I have no plan to fix your lousy public schools. So talk to your school committee or mayor. In fact, it is unconstitutional for me to do so. ‘ And if the candidate needs to hand out copies of Article I and the Tenth Amendment rather than a glossy ten-point plan to fix the schools, then he or she should do so. And maybe candidates should prominently post these provisions on their campaign websites.
Republicans should demand this rather than insisting on overt measures of ideological purity, like signing Grover Norquist’s no new tax pledge. Being a Republican today should be synonymous with a respect for federalism. And federalism begins by saying, it’s none of my business.