Monday, November 4, 2013

Holmes Under Attack By Federalists

Carol Anne Bond admittedly tried to injur or kill a neighbor, with whom her husband had fathered a child. The attempt failed, and local law enforcement seemed to take no interest in what may have seemed a squabble between rivals. The U. S. Attorney for the Eastern District of Pennsylvania took the case,however, and charged Bond with a violation of a federal statute that implements the Chemical Weapons Convention Implementation Act, she admittedly having possessed a toxic chemical to be used as a weapon. Bond was convicted and sentenced to six years in prison. Her appeal has become a cause celebre for the radical Right and has reached the Supreme Court. Her lawyers have asked the Court to overturn a century-old precedent established in the famous case of Missouri v. Holland,familiar to every law student, in which Justice Holmes, writing for a seven-member majority, rejected Missouri's claim that the Migratory Bird Treaty Act was unconstitutional, because the TEntrh Amendment to the Constitution protects a state's right to regulate hunting. Bond's lawyers want the Court to say that Chemical Weapons Treaty can't be applied to her, reviving the claims rejected in 1920. I don't want to get into the weeds, Lyle Denniston at SCOTUSblog has a good summary and preview of the arguments. Suffice it to say that Holmes's opinion in 1920 treated an originalist argument with something like contempt:
The treaty in question [the Migratory Bird Treaty Act]does not contravene any prohibitory words to be found in the Constitution. The only question is whether it is forbidden by some invisible radiation from the general terms of the Tenth Amendment.
A state, Holmes said, although it was accustomed to define hunting seasons, had no claim over migratory birds passing through it, and had no right protected by the Tenth Amendment. This has unsettled the new Right, who are energetically defending states' rights. Te Federalist Society and the Heritage Foundation may have also been aroused by Holmes' express rejection of the cheese-paring textualism that has become a mechanism for overturning precedents. Holmes rejected the textualist argument presented to the Court, and answered it with a copious citation of precedents establishing the principle that the federal government had authority to accomplish what the states alone could not, when exercising the treaty-making authority conferred by the Constitution. Protecting natural resources was a matter of national, Holmes said:
Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. The subject-matter is only transitorily within the State and has no permanent habitat therein. But for the treaty and the statute there soon might be no birds for any powers to deal with. We see nothing in the Constitution that compels the Government to sit by while a food supply is cut off and the protectors of our forests and our crops are destroyed. It is not sufficient to rely upon the States. The reliance is vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of opinion that the treaty and statute must be upheld.
In another case on the Court's docket this term, a similar challenge is being made against the federal government's authority to regulate interstate air pollution, and ultimately to address climate change. Holmes seems to stand in the way in that case as well.