Is the Bond Case a Big Deal? Maybe. Maybe Not…

On June 16, 2011, the United States Supreme Court issued a unanimous (9-0) decision in the case ofBond v. United States. On the surface, the decision looks like a major victory for federalism and for individual citizens who want to challenge a federal law in court. However, only time and future decisions will tell whether this decision is a major victory for individual citizens’ and states’ rights, or if in the end it really won’t make much difference.

Background of the Bond Case

The story behind Bond has all of the elements of a made-for-TV drama. Mrs. Carol Anne Bond (the petitioner) discovered that her best friend, Myrlinda Haynes had been involved in an affair with her husband, and was pregnant with his child. She started to harass the “other woman” in an effort to exact some revenge. Mrs. Bond put some sort of caustic substance on surfaces that Haynes was likely to touch, and the woman suffered minor burns as a result.

One of the objects on which Mrs. Bond placed the caustic substance was Hayne’s mailbox. This got the U.S. Postal Inspection Service involved, and Mrs. Bonds was charged with violating federal law, specifically § 229 of the United States Code. This statute then prompted the federal prosecutors to invoke the 1993 Chemical Weapons Convention against Mrs. Bond. Mrs. Bond felt that the usage of the Weapons Convention against her was unconstitutional under the Tenth Amendment.

Mrs. Bond filed a motion to dismiss the §229 indictment on the grounds that the United States Congress had exceeded its constitutional authority under the 10th Amendment to the United States Constitution, which reads:

“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.”

The District Court denied her motion to dismiss the §229, ruling that she did not have “standing” (the legal right to sue) because existing Supreme Court precedent held that the legal rules relating to “standing” (i.e., eligibility to bring a lawsuit) required that the State had to be a party to the case. Mrs. Bond was acting as an individual citizen and the State was not a party. Mrs. Bond appealed the District Court decision to the Third Circuit, who agreed with the District Court. The United States Supreme Court granted certiorari (i.e., agreed to hear the case).

Why the District and Federal Courts Said Mrs. Bond Could Not Challenge the Federal Law

The lower courts based their reasoning on a 79-year-old Supreme Court case, Tennessee Electric Power Co. v. Tennessee Valley Authority (“TVA”). For 79 years, lower courts have been assuming thatTVA stood for the proposition that state involvement was an absolute requirement in a case involving a Tenth Amendment challenge to a federal law. In other words, the courts felt that based on TVAprecendent, individual citizens could not bring a Tenth Amendment challenge to a federal law acting only as citizen litigants.

What the Bond Ruling Changed

However, in the Court’s June 16th decision, the Supreme Court held unanimously that the lower courts’ reliance on TVA was incorrect, and that indeed citizens can assert Tenth Amendment claims to challenge federal laws. The Court reversed the decision of the Third Circuit and remanded the case back to the lower court for a decision on the merits of the case.

The case will now go back to the Third Circuit on remand. The Third Circuit will now need to decide whether federal prosecutors, acting under the laws passed by Congress and under the authority of a treaty, did actually go too far in pressing criminal charges against Mrs. Bond.

The Supreme Court’s Reasoning

The Bond opinion was written by Justice Anthony Kennedy. In his opinion, he praised the shield for individual rights that exists in the divided government premise of federalism, stating “Federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

Kennedy further stated that federalism “protects the liberty of all persons within a state by ensuring that laws enacted in excess of delegated governmental power cannot direct or control their actions….By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake. The limitations that federalism entails are not therefore a matter of rights belonging only to the states.” (Right on!)

But What Does It All Mean?

On the surface this sounds like a major victory for the conservative principles of states’ rights and federalism, and a serious blow against the federal government juggernaut. However, whether or not that is actually true remains to be seen. Here’s why I’m skeptical.

First. This was a unanimous decision. Even the notoriously liberal justices agreed with the holding. This fact in itself makes me believe that this was more of a technical decision than an earth-shaking game-changer. Why would the historically activist liberal justices agree to a decision that possibly limits the powers of federal government? It makes no sense to me. (Now, if it had been the usual 5-4 ruling, then I would have felt that it was a solid conservative victory.)

Second. The Supreme Court did not rule that the federal government had overstepped its bounds with § 229. Instead, the holding was simply that Mrs. Bond could bring that challenge as an individual citizen without involving the state as a party in the suit. This ruling was about procedure, not the substance of the case.

Third. This opinion reveals a somewhat schizophrenic Supreme Court. It was only a couple of months ago when the same Court ruled (also in an opinion authored by Kennedy) that individual taxpayers do not have a right to file lawsuits (i.e., they don’t have “standing”) when government funds allegedly were being used to support religious organizations (Arizona Christian School Tuition Organization v. Winn, 09-987). Moreover, the history of this Court is one of restricting the concept of “standing to sue” under the Constitution’s Article III.

Fourth. Justice Kennedy hinted in his opinion that this might not help citizens get their cases heard on Tenth Amendment grounds. Kennedy reminded us that the legacy Article III barriers to “standing to sue” remain intact by stating that, “If, in connection with the claim being asserted, a litigant who commences suit fails to show actual or imminent harm that is concrete and particular, fairly traceable to the conduct complained of, and likely to be redressed by a favorable decision, the Federal Judiciary cannot hear the claim. These requirements must be satisfied before an individual may assert a constitutional claim; and, in some instances, the result may be that a state is the only entity capable of demonstrating the requisite injury.”

Conclusion

Although this is certainly a positive ruling for states’ rights advocates, it’s too early to celebrate this ruling as a major victory. Only time will tell if individual citizens can overcome all of the barriers in place relating to the concept of “standing” to successfully bring suits against the overreach of the federal government. It might be a big deal, but it might have minimal impact because all of the other existing obstacles to citizen lawsuits against the federal government.

Footnote: There is possibly a silver lining in this decision. This ruling might mean that the Court is solidifying its position on federalism, which could be a positive sign that the Court will rule in favor of the states in the upcoming Supreme Court review of Obamacare. An excellent article from American Thinker, hints that this might be a big deal afterall. The article can be found here:http://www.americanthinker.com/2011/06/did_the_supreme_court_tip_its_hand_on_obamacare.html

Becoming Involved in "Patriotics" - Step 3

This is the third in a series of seven articles that explains how to become a patriotically active citizen of the United States.

If a nation expects to be ignorant and free, in a state of civilization it expects what never was and never will be. – Thomas Jefferson

Step 3: Become generally informed about current events and the major issues facing America, and become well-informed about the issues that affect you the most. 

I love the Boy Scouts of America. The scouting program seeks to foster patriotism and a sense of responsibility towards America in many ways. To become an Eagle Scout, a boy must complete a series of required merit badges, one of which is Citizenship in the Nation. The third requirement for this merit badge is as follows:

Watch the national evening news five days in a row OR read the front page of a major daily newspaper five days in a row.  Discuss the national issues you learned about with your counselor.  Choose one of the issues and explain how it affects you and your family.

Although this requirement is just a bit outdated (who reads newspapers anymore, and what exactly is “the national evening news?”) why would the BSA make this activity a requirement for the merit badge? I believe that it is because one cannot truly be considered a responsible and patriotic citizen if he or she does not take notice of current events, become aware of national issues, and become competent to engage in responsible dialog about those issues.

Becoming Informed about Current Events

This step is much harder than it sounds. It does not mean to simply listen to one news channel or read one website. Those simple days are over. Today there are myriad voices competing for our attention, those voices are often loud, contradictory, and competing with one another for an audience. Figuring out who to listen to and which side to align with is very difficult. But you must make the effort.

However, once you start listening an interesting phenomenon will take place. As you start becoming well informed, you will find news sources and voices that will ring true in your heart. Over time you will develop a strong preference for one news source or the other. You will find yourself aligning with certain news analysts and commentators. You will not always agree with how they present the news or how they feel about a specific topic, but that’s not a bad thing. It means you are thinking independently and doing your own analysis. If you are finding yourself in personal agreement 80-90% of the time, you have found your best sources.

Becoming Enlightened about National Issues 

Our great nation faces many, many serious issues. Here is a list of just some of them:

• The proper role of government
• The role of the Constitution in today’s society
• Health care
• Education
• Immigration
• Social Security
• The national debt
• The national deficit
• Terrorism
• Foreign relations
• Freedom of speech
• Freedom of religion
• The right to bear arms
• Race relations
• National sovereignty versus world government
• Crime and punishment
• Capitalism versus socialism
• The impact of drugs on society
• The impact of gambling on society
• Energy
• Abortion
• Taxes

And this list is not even close to being all-inclusive. Are you overwhelmed yet? I am. As a merit badge counselor for the Citizenship in the Nation merit badge, I can attest that passing off requirement three turns into a very long conversation.

Becoming Specialized in Select Issues

This is where the brilliance of Requirement 3 shines most brightly. Notice that it says to “choose one of the issues and explain how it affects you and your family.” This is the key to deciding which issues you should concentrate on. Figure out which of the main issues have the greatest impact on you and your family, and then research that issue to the point where you can speak both confidently and competently.

Becoming an expert is a difficult task. You will need to devote both time and effort into becoming informed. You will probably  need to study the law relating to the issue. Fortunately, for all of these issues there are volumes of materials available at the click of a mouse. As you conduct your research, you will form a strong opinion about the issue and you will become competent to argue your position.

Engaging in the Debate

One of my law professors explained the key to winning a debate. He said that an effective advocate will understand both sides of the debate so well that he could argue convincingly for the opposing side. Once you get to the point where you can effectively argue the opposing viewpoint, you’re ready to debate your side of the issue.

Our nation was founded on civil debate. After becoming an expert you need to engage in the national debate through civil dialog. You cannot be a patriotic citizen without speaking out on the issues. If you are overwhelmed about the number of issues facing our country, just imagine how your senator or representative feels when he or she has to cast votes relating to these issues.

This is where We the People fit into the political process. We must make our voices ring loud and clear in the ears of our elected officials so that they have no doubt about how their constituency feels about the key issues. If your elected officials don’t vote on the issues in a way that aligns with your personal feelings, well, you’ll know what to do when we get to Step 7.

". . . whenever the people are well-informed, they can be trusted with their own government; that, whenever things get so far wrong as to attract their notice, they may be relied on to set them right."

-Thomas Jefferson

Becoming Involved in "Patriotics" - Step 2

[This is the second in a series of seven articles that explains how to become an active and informed citizen of the United States. Links to the previous articles are provided below.] 

Step 2: Develop a respect and reverence for your country by visiting its monuments, appreciating its beauty, and honoring its symbols. 

The United States of America is a land rich in history, steeped in tradition, and sanctified by sacrifice of the founding fathers and other brave souls who, in Abraham Lincoln’s famous words, “gave the last full measure of devotion.” It is a land endowed with physical beauty. By partaking in the American experience you can develop a deep love for our country. 

As mentioned in the previous article, one of the requirements for citizenship is to have a fundamental understanding of the history of the United States. Although most of us went through the obligatory history classes in school, a patriotic citizen will continually study and reflect on the history of the United States and will remain vigilant against efforts to demean and defame the founding fathers.

Gaining an understanding of history does not need to be boring. It can, in fact, be a highly enjoyable pursuit. This article explains how to get personally involved with the history and culture of our nation outside of the musty textbooks. 

(1) Visit national and state historic sites

Our nation is full of historic sites that help its citizens feel the spirit of America. Your state probably has several significant sites that mark the location of significant historical events. As you travel with your family or on business, don’t pass up the opportunity to visit our national museums and monuments. 

Over the past ten years while living in Texas, we have made an effort to visit Texas’ historic sites. We have stood at the Alamo, where the American heroes took a stand against the Mexican army. There is an amazing feeling of reverence in that old mission compound. Although that was a losing battle, the story didn’t end there. The San Jacinto Monument, near Houston, tells the rest of the story. We have visited the State Capitol in Austin, and we have stood in Daley Plaza in Dallas. These sites have fostered in our hearts a love of both our nation and our state. 

Several years ago during a trip to Hawaii, we took the opportunity to visit the Arizona memorial at Pearl Harbor, where brave servicemen died defending our nation on the morning of December 7, 1941. The memorial stands as a reverent reminder that constant vigilance is necessary to defend our freedom. 

On a trip to Washington D.C. many years ago, I stood before the display containing the Declaration of Independence and pondered upon the bravery it took for those early American Patriots to courageously take a step that, if unsuccessful, would amount to high treason. But, fortunately for us and our posterity, they were successful in founding our nation. 

I have visited Ellis Island, where some of my ancestors first set foot in this country with nothing but the clothes on their backs, but with visions of the new opportunities that awaited them through effort, dedication, and hard work. During that same trip we visited Ground Zero, where thousands of innocent Americans died one September morning, while millions more of us experienced the tragedy vicariously via news broadcasts. 

Even a trip to Disney World can inspire a love for your country. The American Adventure pavilion in Epcot Center is one of my absolute favorite tributes to the United States. 

All of these experiences have helped me and my family understand the sacrifice, the suffering, and the hard work that has gone into the building of the nation that we now enjoy. These visits have also deepened our respect and admiration for the armed forces. 

(2) Enjoy the natural beauty of the United States

The United States is blessed with a great diversity of natural beauty. I’m not even going to try to describe my experiences camping, hiking, and driving through this country. I’ll let John Wayne express how I feel about this country’s spectacular vistas.

"America, Why I Love Her."


(3) Understand the significance of the flag and the National Anthem


The flag of the United States, the Pledge of Allegiance, and the National Anthem serve as constant reminders of the history of our country, the sacrifices that have been made to build the nation, and of the duties we have as Americans. We have a sacred duty to honor these American rituals and symbols. 

The Flag of the United States


The flag of the United States is important enough to warrant its own section in the United States Code (USC). Title 4, Chapter 1 is entitled simply, “The Flag.” This chapter of the U.S. Code outlines how the flag is to be displayed. All U.S. citizens should become familiar with the rules of etiquette relating to our flag. 

Title 4, Section 8 states: “ No disrespect should be shown to the flag of the United States of America…”

The flag stands for our land and our people. It symbolizes our highest national principles, our way of life, and our heritage. It serves as a constant reminder of the sacrifice of those who have bled and died for freedom. 

Over 30 years ago I was invited to participate in a grade school essay contest. I was asked to explain (in 100 words or less) what the American flag means to me. My feelings have not changed over these many years:

"What the American Flag Means to Me"

The flag to me stands for a mighty nation. It means we will stand up for the freedom we hold so dearly.

It also stands for the many brave people who shed blood for our country, men who wanted freedom more than their own lives.

The flag is a symbol of leadership over all nations. Many countries try to copy us but they will never equal us. 

That is what the flag means to me. 

Here is one of my all-time favorite tributes to our flag, by Johnny Cash: 


"The Ragged Old Flag"

The National Anthem

“The Star Spangled Banner” has its roots in the War of 1812. On September 13, 1812, the British Fleet had entered Chesapeake Bay and closed in on Baltimore, Maryland. To capture Baltimore, the British had to get past Fort McHenry, which guarded the harbor. The British guns trained their fire on a huge American flag at the fort. 

Francis Scott Key was a young American lawyer who had sailed out to a British warship before the fighting began in an attempt to sure the release of a friend who was being held prisoner. He was detained, and had no choice but to wait out the attack from the warship. 

When dawn arrived on the morning of September 14, he spotted the Stars and Stripes still proudly waving through the smoke. Fort McHenry stood, and the British were abandoning their plans to capture Baltimore. 

Key was overcome with emotion. He put pen to paper and wrote out his thoughts, beginning with “O say, can you see by the dawn’s early light…” His poem was printed and distributed in Baltimore, and was later put to music. Almost a century later, in 1931, Congress designated the song as our national anthem. 

Typically only the first verse of the anthem is sung by cheering crowds at sporting events and other occasions. The fourth verse, although rarely sung, is my personal favorite. Here is the full text of “The Star Spangled Banner.”

Oh, say can you see by the dawn's early light

What so proudly we hailed at the twilight's last gleaming?

Whose broad stripes and bright stars thru the perilous fight,

O'er the ramparts we watched were so gallantly streaming?

And the rocket's red glare, the bombs bursting in air,

Gave proof through the night that our flag was still there.

Oh, say does that star-spangled banner yet wave

O'er the land of the free and the home of the brave?

On the shore, dimly seen through the mists of the deep,

Where the foe's haughty host in dread silence reposes,

What is that which the breeze, o'er the towering steep,

As it fitfully blows, half conceals, half discloses?

Now it catches the gleam of the morning's first beam,

In full glory reflected now shines in the stream:

'Tis the star-spangled banner! Oh long may it wave

O'er the land of the free and the home of the brave!

And where is that band who so vauntingly swore

That the havoc of war and the battle's confusion,

A home and a country should leave us no more!

Their blood has washed out their foul footsteps' pollution.

No refuge could save the hireling and slave

From the terror of flight, or the gloom of the grave:

And the star-spangled banner in triumph doth wave

O'er the land of the free and the home of the brave!

Oh! thus be it ever, when freemen shall stand

Between their loved home and the war's desolation!

Blest with victory and peace, may the heav'n rescued land

Praise the Power that hath made and preserved us a nation.

Then conquer we must, when our cause it is just,

And this be our motto: "In God is our trust."

And the star-spangled banner in triumph shall wave

O'er the land of the free and the home of the brave!

The following video explains in great detail the circumstances surrounding the creation of the Star Spangled Banner. It is well worth nine minutes of your time. 

"The Story Behind the Star Spangled Banner"


May we all seek to foster a greater love of our country in our own hearts and in the hearts of our family members. God bless America. 

[to be continued]

Becoming Involved in "Patriotics"

For the past several years I have been on a personal quest to become an educated and active citizen. It has been a difficult journey – one that has been discouraging at times as my efforts have been met with resistance and sometimes ridicule. At other times, the journey has been rewarding as I have noticed the flame of patriotism ignite in my friends and associates.

I have heard many excuses for not getting actively involved. One of the most common excuses is “I hate politics.” Well, I hate politics myself. But honestly, I do not consider myself political. I have coined a term which I use to refer to my activities – “patriotics.” It is my desire to do whatever is within my power to return our country to the values of the Founding Fathers which are articulated in the founding documents – the Declaration of Independence and the Constitution.

During my journey, I have had several people tell me that they want to do their part, but they feel overwhelmed. A very common question is “How do I get involved?” I have pondered this question for quite some time. Recently, I discovered the answer when I stumbled across a framework for becoming an active and involved citizen of the United States. This framework involves seven steps which, if followed, will start an individual along the path to becoming involved in “patriotics.”  

Step 1: Understand the rights and responsibilities you have as a citizen of the United States of America

Every good citizen makes his country's honor his own, and cherishes it not only as precious but as sacred. He is willing to risk his life in its defense and is conscious that he gains protection while he gives it.

-- Andrew Jackson

Many of us were born into citizenship. Because we have been citizens for our entire lives, it is very easy to take for granted the blessing it is to be a citizen of the United States of America. And, unfortunately, it is also very easy to remain unaware of the solemn responsibilities we have as citizens of the United States.

One of the easiest ways  to understand the rights, duties, and obligations of a citizen of the United States is to study the process by which an immigrant becomes a citizen. Foreign nationals who wish to become citizens must go through the naturalization process. To become a naturalized citizen, the applicant must:

• Be at least 18 years old
• Be a legal permanent resident in the United States.
• Show “good moral character” during the five years prior to application. Certain criminal convictions will bar naturalization. Aggravated felony convictions are a permanent bar to naturalization.
• Declare his or her willingness to support and defend the United States and the Constitution by taking an oath of allegiance.
• Demonstrate knowledge of the fundamentals of the United States history and certain principles of U.S. government.
• Be able to read, write, speak, and understand English words in ordinary use.

The Oath of Allegiance is especially instructive:

I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God.

Citizenship confers many advantages, including:

• The right to vote
• The right to receive government protection
• Access to certain jobs and benefits
• Ability to hold public office
• The right to a fair trial
• Freedom of speech
• Freedom of religion
• Freedom of assembly
• The right to keep and bear arms
• The privilege to travel

In addition to the advantages, citizens have certain solemn and important responsibilities which include, among many others, the following:

• Obedience to the laws of the land
• Respect for the property rights of others
• Being informed about issues facing the nation
• Being an informed voter and exercising the right to vote at every opportunity
• Paying taxes
• Serving on juries
• Registering for the Selective Service

In the introduction to his wonderful book The American Patriot’s Almanac, William J. Bennett states:

Patriotism brings obligations. It involves actions, not just feelings. …Yes, patriotism can mean flying the flag and marching in parades on the Fourth of July. It also means getting to the polls on Election day. Reading, listening, and discussing so as to make informed judgments about current issues. Offering your services to community and civic groups. Obeying the laws. Learning about the nation’s history. Knowing something about the Constitution. Helping your neighbors. It’s usually not that hard to be a patriot. But it does require some effort.

Occasionally, being a patriot means putting national interest before self. …The people who founded this nation did it. The signers of the Declaration of Independence, for example, were mostly wealthy men who could have gone on living comfortable lives with the status quo. But they put their fortunes, their safety, and their sacred honor on the line for something greater than themselves.

May we each begin our individual journey on the path to becoming active and involved citizens, and may we never take for granted the blessings we enjoy as citizens of the United States of America.

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Citizenship is what makes a republic – monarchies can get along without it.

-          Mark Twain

[to be continued...]