By: Suzanne Sherman
U.S. Attorney General Robert Barr recently ordered the reinstatement of the federal death penalty, ending a 16-year pause in executions at the federal level. The Department of Justice announcement brought cheers of support from “Constitutional Law-and-Order Conservatives” whose desire to “uphold the law” trumps their desire to uphold the federal limitations set forth in the Constitution itself.
The Department of Justice said the decision was made in relation to “five death-row inmates convicted of murdering, and in some cases, torturing and raping, the most vulnerable in our society – children and the elderly.”
Claiming “We owe it to the victims and their families to carry forward the sentence imposed by our justice system,” it appears that Mr. Barr has forgotten the Oath he took to uphold the Constitution, which delegated to the general government authority to punish three crimes: counterfeiting (Article I, section 8, clause 6), piracies on the high seas (Article I, section 8, clause 10) and treason (Article III, section 3).
ABC News inadvertently swerved into the issue of federalism, stating that, “(t)he issue of the death penalty has been a tug-of-war between the states and the federal government.”
As stated above, the states granted the general government authority over three crimes. Remember the words of James Madison in Federalist 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite…The powers reserved to the several states will…concern the lives, liberties and prosperities of the people, and the internal order, improvement, and prosperity of the state.”
In Federalist 39, Madison also wrote that the act of establishing the Constitution was not a national, but a federal act. Given the absence of the general government’s authority over the crimes at issue in these death penalty cases, the Tenth Amendment must control here.
“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.”
So now we are faced with the question of how these crimes became “federal offenses.”
A quick query, took me, not surprisingly, to an explanation provided by a law firm. The blog, entitled “Ten Ways in Which Murder Becomes a Federal Crime,” explains that criminal law is mostly handled by the states, citing the Constitution as their authority. They explain how murder can become a violation of federal law, and every one of the 10 examples they give is attributable not to constitutional authority, but to federal statute, meaning created by Congress. Lawyers, as I explained HERE, are frequently dead wrong on Constitutional issues, and the ones who wrote this explanation are no exception.
Congress, never granted the authority to punish other than the enumerated offenses, has taken it upon itself to circumvent state authority to prosecute, punish and execute those convicted of crimes that should be handled at the state level. If the states wanted the general government to deal with this behavior, however reprehensible, they would have enumerated the power under Article I section 8.
If the general government is to assume powers never delegated, the Constitution provides for the process by which amendments are to be made in Article V. Either Congress or the states may propose an amendment, and it must then be ratified by ¾ of the states. Congress simply amended the Constitution and left the states out of the procedure.
Why does this matter?
Because the federal government has a long history of simply changing the constitution by congressional, presidential or judicial edict.
Before the ink was dry on the Constitution, Congress came up with the Sedition Act of 1798, criminalizing speech considered false, malicious or scandalous that was directed at government or government officials. And in Schenck v. US 249 U. S. 47 (1919), the judiciary got in on the act when the Supreme Court upheld the conviction of a man for violating the Espionage Act of 1971. His crime? He distributed pamphlets correctly stating that conscription was a violation of the 13th Amendment.
The Court explained that in ordinary times, his acts would have been within the purview of his Constitutional “rights.” However, the Court said, whether an act is criminal or not depends on the circumstances in which it was done. Schenck’s distribution of printed material was ruled criminal conduct. In Schenck, the United States Supreme Court did what Congress did in expanding criminal law – it held its own convention, and didn’t bother to include the states.
According to the First Amendment, Congress is prohibited from abridging freedom of speech or the press. The message does not depend on the circumstances, but ANY infringement. This is the problem with referring what was intended to be restrictions upon Congress as “rights” to be defined and regulated, as I explained HERE. When the government refuses to acknowledge the restrictions the Constitution places upon it, and instead labels them “rights,” they revert to the same tired argument: “rights are subject to regulation,” and the Supreme Court agrees, showing the fallacy of expecting one branch of the general government to restrain another.
Today we are seeing movements around the world showing people are getting tired of central governments that no longer represent the will of the people. We have movements calling for secession, and some political candidates even call for abolishing the federal government entirely.
We have also seen the U. S. government enact laws aiming to protect its image and its very existence.
For instance, there is no constitutional authority for flag codes, for instance, and particularly problematic is 18 U. S. C. 2385, which provides that those whoever “knowingly or willfully advocates, abets, advises, or teaches the duty, necessity, desirability, or propriety of overthrowing or destroying the government of the United States or the government of any State…by force of violence…shall be fined under this title or imprisoned or both…”
Thomas Jefferson might very well face incarceration for his “Tree of Liberty” stance under this statute if he were around today.
“Treason” against the United States is defined in Article III, section 3 as consisting “only in levying war against them…” The term “them” refers to the States, not the general government created BY the States, but Congress conveniently decided to add protections for the general government that itself violate the First Amendment. Conveniently, the United States Supreme Court has created distinctions in this area traditionally considered “speech” or “expression” and referring to them as “conduct.” See Schenck, where the distribution of pamphlets was labeled “interfering with military efforts.”
People are getting tired of living under the rule of a central government that has abandoned its restraints and are starting to be more vocal about their disenchantment with the current system. It is entirely reasonable to entertain the notion that those perceived as a threat to the government will be subject to criminal prosecution; in fact, it has happened before, starting with the Sedition Act. But it didn’t end there, as we are still living under the Espionage Act – I am sure Julian Assange would love to be able to comment on that one!
Abraham Lincoln arrested those who opposed his war efforts against the CSA; he shut down printing presses, suspended habeas corpus (something only Congress had the legal authority to do). In 1862, he ordered the execution of 39 Dakota Indians, after what has been described as a trial lacking in fairness and due process.
On February 19, 1942, President Franklin Delano Roosevelt issued Executive Order 9066, and almost 120,000 people of Japanese descent (most American citizens) were forcibly relocated to detention camps, absent any connection with wrongdoing against the government. In more recent times, the National Defense Authorization Act grants the Executive the power to indefinitely detain those considered a threat. The power is made more palatable by deemed such people “suspected terrorists.” Is the term-limited, or are those who oppose the current system going to fall into that category? Time will tell.
The individuals set to be executed pursuant to Barr’s order are clearly not worthy of our sympathies. That being said, it is problematic to simply allow our emotions to run over our principles. We shouldn’t allow pragmatism to deter us from challenging unlawful expansions of the federal government. There is a means by which it could have attained such powers lawfully, and that has not been done.
The crimes of which the condemned have been convicted fall within the realm of the states to punish, according to the Constitution as ratified. That Constitution was designed to ensure the States would not become mere subsidiaries of a greater whole and surrender their sovereignty. If you accept the notion that the general government can simply take these powers and call them their own, then you are accepting that the rule of law must emanate from Washington, D. C., and that the states and their people are incapable of governing themselves.
Today’s advocates for limited government might be tomorrow’s enemies of the state. Constitutional conservatives supporting the reinstatement of the federal death penalty will be forced to admit that they care more about “law and order” than they do the rule of law.