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Monday, 04 November 2013 09:29

Supreme Court to Hear Pennsylvania Poisoning Case With Huge Implications

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On Tuesday the Supreme Court will hear arguments from Paul Clement, the lead attorney in Bond v. United States, that the federal government overstepped its constitutional authority in prosecuting a Pennsylvania housewife for attempting to poison a former friend.  

If the court rules in favor of the government, implications for federal enforcement by police power of treaties, those ratified as well as those pending (such as the United Nations’ Arms Trade Treaty) are ominous.

Carol Anne Bond, an immigrant from Barbados, was working for a chemical manufacturer in a facility outside Philadelphia when she learned that her best friend, Myrlinda Haynes, had been impregnated by Bond’s husband, Clifford. In fits of rage, Bond harassed Haynes to the extent that, in 2005, she was arrested and convicted by a state court.

Her anger grew to the point where she stole some chemicals from her company, purchased some others from Amazon, mixed them together, and applied them to the front door of Haynes’ home, the door handles of her car, and her mailbox. From November 2006 through June 2007 she tried to poison Haynes on 24 separate occasions. When Haynes notified local police about the attacks, they were unresponsive. So Haynes told her mailman about the attacks, and since mailboxes are federal property, federal investigators were brought in. After surveillance revealed that Bond had used government property in her attempts to poison her former friend, the investigators charged Bond under a statute Congress passed to implement the Chemical Weapons Convention (CWC), which the Senate ratified in 1997. She was convicted and sent to jail for six years, followed by another five years’ probation, and fined $12,000. 

Paul Clement, the lead attorney in recent high-profile cases such as the defense of the Defense of Marriage Act (DOMA) and the Second Amendment case McDonald v. Chicago, petitioned the court in 2011 that Bond’s rights under the 10th Amendment were violated and that Congress’ implementation statute was unconstitutional.

The government took issue with Bond’s standing, holding that only states could bring challenges to the federal government, not individual citizens. A reading of the amendment, which says, “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,” persuaded the court that Bond indeed had “standing” to challenge the statute, and she is doing that, with the help of Clement, starting on Tuesday.

In that 2011 case, Clement argued that the implementation statute for the CWC “exceeded the federal government’s enumerated powers, violated bedrock federalism principles guaranteed under the 10th Amendment and impermissibly criminalized conduct that lacked any nexus to a legitimate federal interest.”

What’s at stake is the core of federalism: the separation of powers doctrine embedded from birth in the Constitution. As Bond’s petition, drawn by Clement, says, "The absence of a national police power is a critical element of the Constitution’s liberty-preserving federalism."

In the 1920 Supreme Court case Missouri v. Holland, Chief Justice Oliver Wendell Holmes, in ruling that the federal government had the power to ratify treaties under the Constitution’s “necessary and proper” clause, offered his personal opinion that the Constitution was a living document and could not be constrained by the original language of the Founders:

The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.… We must consider what this country has become in deciding [today] what [powers] that [Tenth] amendment has reserved.

As the Cato Institute noted:

If Holmes was correct, [then] the treaty power can be used to undo the carefully wrought edifice of a limited government [which was] assigned only certain enumerated powers.

Although Bond v. United States is crafted so that the unfortunate precedent set by Holmes in 1920 won’t be challenged, the issue remains vital to freedom. The government noted in the 2011 case, Congress was fully within its power to write a law granting the federal government the police powers necessary to enforce treaties.

That’s what’s at stake at the Supreme Court, starting on Tuesday.

In commenting on the case, George Will said the government intervened in what was clearly a state affair “because it thought it could.” Others suggest that the reason the government intervened, and is hopeful for a favorable verdict, is because it would set a precedent, allowing it to use police powers to enforce other treaties, including those not yet ratified.

Although the Arms Trade Treaty (ATT) is at present languishing in the Senate, thanks to 50 senators who have told the president in writing that they will not ratify it if it is brought to the floor, the danger of a verdict favoring the government in Bond v. United States is clear. If the ATT is ever ratified, the government then will have precedent on its side to enforce it through police power.

So the case of an enraged immigrant has set the stage for a major confrontation between the government seeking more power and defenders of freedom depending upon the 10th Amendment to keep it from doing so.

 

A graduate of Cornell University and a former investment advisor, Bob is a regular contributor to The New American magazine and blogs frequently at www.LightFromTheRight.com, primarily on economics and politics. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.

5 comments

  • Comment Link Tionico Tuesday, 05 November 2013 20:17 posted by Tionico

    well, the Constitution DOES specifically assign to FedGov the power to establish post offices and post roads.... it's not much of a stretch to consider the kerbside postbox an extension of the post offeces, as that construction IS part of the post system. However the federal involvement should not be allowed to extend beyond the tin at kerbside for the deposit of posts being delivered. Anything further IS over-reach typical of today's FedGov.

  • Comment Link apollonian Monday, 04 November 2013 15:33 posted by apollonian

    Oh yeah--I forgot to note: I bet Sup. ct. duly goes along w. gov.--they'll say the Cong. has every right to make a law, regardless of the treaty. Treaty issue will be left practically un-mentioned.

  • Comment Link apollonian Monday, 04 November 2013 14:12 posted by apollonian

    Yes, "sirburban": that's why ONLY solution is 10th Amendment, nullification, secession, etc.

    The old Confederacy didn't realize the urgency of things, Pres. Davis and co. imagining Yanks would give-up--they had to go on the counter-offensive as Gen. Jackson urged, the fools.

  • Comment Link apollonian Monday, 04 November 2013 12:59 posted by apollonian

    I'm not getting this: didn't the Congress write a law?--why shouldn't it apply to individuals?--don't other laws Fed. Congress writes apply to individuals?--what's the distinction?

    This is YET ANOTHER poorly written article by New American, I submit, though I agree United Nations is a putrid farce and US should exit.

  • Comment Link sirburban Monday, 04 November 2013 11:26 posted by sirburban

    Some of the founders at the Convention of 1787 saw the Courts as a potential threat to liberty. As the court decisions such as this one issued by Wendell Holmes clearly indicate, those founders who saw trouble coming from the courts were right to view the Supreme Court as the route tyrants would use to transform America from a "republican form of government" to an oligarchy.

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