Yes, the news is downright depressing of late. The stock market’s tanking, the dollar’s falling, we’re in debt up to our eyeballs and the bureaucracies continue to churn out job-killing regulations. At times like this, it’s hard to imagine anything good coming of it. But all is not lost. We’re a resilient and determined lot […]
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Yes, the news is downright depressing of late. The stock market's tanking, the dollar's falling, we're in debt up to our eyeballs and the bureaucracies continue to churn out job-killing regulations. At times like this, it's hard to imagine anything good coming of it.
But all is not lost. We're a resilient and determined lot and with proper leadership, all will be well. More to the point, at times of greatest stress, we Americans tend to rethink our founding principles, things like the role of the federal government, property rights and our economic liberties.
After some pushing and pulling, there seems to be an emerging consensus: We as a people are interested in putting the federal government back in its box and out of our lives; we still believe our property really is our property; and the government should try to promote economic liberty and the right to work and not take them from us. Oddly enough, the courts seem to be following the emerging consensus. So let's take a look at the more positive — and highly encouraging — trends.
State's rights
This is what we lawyers call "federalism"— the dispersal of power between the federal and state governments, with the ability of the states to checkmate the federal government's pretentions. Over the last 20 years, the U.S. Supreme Court has laid down a series of markers, telling the feds just how far they can go in meddling in the business of the states. But the court has never said that individuals can assert federalism as a defense when the feds are after them for an offense that usually arises only under state law.
Enter Carol Bond, who was charged by a federal prosecutor with violating the Chemical Weapons Treaty after she placed caustic substances on objects likely to be touched by a woman who was pregnant by her husband. That's right, the feds got involved in a domestic dispute that was, at worst, a misdemeanor under state law and charged Bond with violation of an international treaty.
At trial, Bond's lawyers argued that the treaty provisions she was charged with violated the 10th Amendment and were beyond Congress' power and won. The court has, in effect, deputized the American people to defend states' rights against encroaching federal power. Remarkable.
Speech control
In June, the Supreme Court struck down campaign matching funds in the case of Arizona Free Enterprise Club's Freedom Club PAC v. Bennett. Arizona's statute was found to violate the First Amendment free speech rights of candidates who didn't participate in public campaign financing. Like Arizona, Maine's matching funds provision rewards a participating candidate if his non-participating opponent is too successful in fundraising or spends too much money by triggering a payout to his publicly funded opponent. This attempt to "level the playing field," according to the court, "substantially burdens" the non-participating candidate's free speech.
In August 2010, The Maine Heritage Policy Center and the James Madison Institute challenged Maine's matching funds provisions in the U.S. District Court in Maine. After the Supreme Court handed down the Bennett decision in June, the Maine attorney general agreed to a stipulated judgment striking down Maine's matching funds provision as well.
Commerce power
On August 12, the 11th Circuit Court of Appeals, based in Atlanta, declared ObamaCare's "individual mandate" unconstitutional and beyond the Congress' authority to regulate. The individual mandate is, of course, the requirement that we all purchase government-approved health insurance or face fines for non-compliance. The plaintiffs in the case are 26 states, including Maine, arguing that the individual mandate exceeds Congress' power to regulate "commerce among the several states."
The Circuit Court agreed, stating that if Congress can order every citizen to purchase an insurance product and "re-purchase that insurance product every month for their entire lives," then there is no limitation on Congress' power over every aspect of our lives and "the boundaries inherent in the system of enumerated congressional powers" is "obliterated."
This lawsuit, as well as other, similar cases from around the country, will doubtless find their way to the U.S. Supreme Court. But for now at least, there's much to be encouraged about, and much worth fighting for. In the struggle to reclaim our personal and economic liberties from an overreaching federal government, the courts, with their adherence to our founding constitutional principles, may be our biggest ally.
David Crocker, who directs the Center for Constitutional Government at The Maine Heritage Policy Center, can be reached at dcrocker@mainepolicy.org. Read more Public Engagement here.
