Rhinehold’s Blog: A Possible Liberty Comeback

It’s been decades since some good news from the Supreme Court concerning individual liberty has come our way, up to and including the despicable Kelo v. New London decision in 2005. But since them, as if to say they were sorry, this court has actually been looking out for us more and more. Between DC v. Heller and Citizens United v. Federal Election Commission, two huge landmark cases that reaffirmed individual rights to the 1st and 2nd amendments, many liberty minded people were cautiously optimistic since they were limited to two specific amendments and both were 5-4 decisions. But now a unanimousdecision in a small strange case, Bond v. United States, opens up a whole new world to the individual citizens of the United States, one that had been wrongly closed to us.

As I stated, this case is strange. A woman found that a close friend of hers was pregnant with her husband’s child and she started stalking and harming her by placing caustic substances on objects she might touch. Not something I think anyone would agree with at all. However, one of the charges against her was being in possession of a caustic substance, a federal statute. Bond had petitioned the court that the statute was a violation of a state’s sovereignty, exceeding the federal government’s limits of the 10th amendment. The government argued that she was not allowed to because as an individual she lacked ‘standing’. She could assert that the statute was not an enumerated power of the federal government, but she could not assert that the statute was a violation of the state she lives in’s sovereignty.

For years, the argument has been made that the amendment, by saying ‘the people’, meant the people as a whole. And therefore only a state, representing the people, could bring action against the federal government for violating the 10th amendment. And because of the political dealing that has been going on for the past several decades this rarely happened, allowing the federal government to grow and grow in power in ways the founding fathers never wanted to happen. It was why the 10th amendment was put into place in the first place.

When writing our new constitution, there were two schools of thought. One was that we needed to ensure some of the rights that Americans were to enjoy were written down and to never, ever be touched. The other was that was not necessary because the constitution was written in a way that would not allow those rights to be violated because it was a unique document at the time (and since) since it did not establish what rights the people had, but what limits the federal government could operate in. If a power wasn’t in the constitution specifically, the federal government could not act. Further, there was fear that if any of our rights were listed in the document, someone may someday make the (wrong) argument that those rights were the ONLY rights that citizens had.

The two sides debated this for some time when finally James Madison came across a compromise. He offered the 9th and 10th amendments to the constitution.

I find, from looking into the amendments proposed by the State conventions, that several are particularly anxious that it should be declared in the Constitution, that the powers not therein delegated should be reserved to the several States. Perhaps words which may define this more precisely than the whole of the instrument now does, may be considered as superfluous. I admit they may be deemed unnecessary: but there can be no harm in making such a declaration, if gentlemen will allow that the fact is as stated. I am sure I understand it so, and do therefore propose it.

The 9th states that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This clearly states that just because a right might not be listed in the document doesn’t mean that the people lose those rights.

The 10th amendment states 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.” This clearly states that unless a power is given to the federal government by the constitution (either as originally written or through amendments) then the federal government is in violation of the constitution of it attempts to assume that power.

Unfortunately, most of this is lost on today’s society.

The decision is short and to the point, but has quotes that makes a person who is actually concerned about liberty proud. Especially in considering that this was a <strong>unanimous</strong> decision.

Federalism has more than one dynamic. In allocating powers between the States and National Government, federalism ” ‘secures to citizens the liberties that derive from the diffusion of sovereign power,’ ” New York v. United States, 505 U. S. 144, 181. It enables States to enact positive law in response to the initiative of those who seek a voice in shaping the destiny of their own times, and it protects the liberty of all persons within a State by ensuring that law enacted in excess of delegated governmental power cannot direct or control their actions. See Gregory v. Ashcroft, 501 U. S. 452, 458. Federalism’s limitations are not therefore a matter of rights belonging only to the States. In a proper case, a litigant may challenge a law as enacted in contravention of federalism, just as injured individuals may challenge actions that transgress, e.g., separation-of-powers limitations, see, e.g., INS v. Chadha, 462 U. S. 919. The claim need not depend on the vicarious assertion of a State’s constitutional interests, even if those interests are also implicated.


The Government errs in contending that Bond should be permitted to assert only that Congress could not enact the challenged statute under its enumerated powers but that standing should be denied if she argues that the statute interferes with state sovereignty. Here, Bond asserts that the public policy of the Pennsylvania, enacted in its capacity as sovereign, has been displaced by that of the National Government. The law to which she is subject, the prosecution she seeks to counter, and the punishment she must face might not have come about had the matter been left for Pennsylvania to decide. There is no support for the Government’s proposed distinction between different federalism arguments for purposes of prudential standing rules. The principles of limited national powers and state sovereignty are intertwined. Impermissible interference with state sovereignty is not within the National Government’s enumerated powers, and action exceeding the National Government’s enumerated powers undermines the States’ sovereign interests. Individuals seeking to challenge such measures are subject to Article III and prudential standing rules applicable to all litigants and claims, but here, where the litigant is a party to an otherwise justiciable case or controversy, she is not forbidden to object that her injury results from disregard of the federal structure of the Government.

I’m not sure how many people see the importance of this decision. No longer does an individual have to rely upon a state to stand up to the federal government for 10th amendment violations.

For instance, because of this decision new cases are being brought against the NLRB’s decision to ban secret ballots for union elections (as an administrative function though no law has been passed to allow it), the individual mandate in the Patient Protection and Affordable Care Act (although mostly unnecessary now that the court will be hearing some cases on this soon) and against the recent war on medicinal Marijuana that the Obama administration has been waging in California and other states. All of these cases would have been thrown out due to lack of standing because there were directed from the federal government to the states.

Again, reality may come crashing down (indeed, the onerous rights violations in the National Defense Authorization Act (FY 2012) are concerning to say the least) but for a short period of time a faint glimmer of hope can be seen.

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