More on Amish Beard-Cutting
Michael Ramsey
Regarding the Amish beard-cutting case discussed a couple of days ago, Michael Rosman writes to say that the Center for Individual Rights is involved and pressing the federalism argument. Here is the Center's brief to the District Court and here is a news article on the Center's involvement: A Beard Too Far: Center Claims Feds Overstepped in Amish 'Hate Crime' Case. (Thanks to Megan Beth Lott at CIR).
A further thought on my part: a number of commentators have been talking up the significance of Bond v. United States, a case on federalism and the treaty power now pending for certiorari at the Supreme Court. Briefly, the claim in Bond is that the federal government has overstepped its enumerated powers by charging a federal crime in a case where a woman attempted to poison her rival in a love triangle. Though that's not the sort of crime that appears to have national implications, the federal government claims Congress has power over local misuse of chemicals through its power to implement a treaty, the Chemical Weapons Convention. Thus (it is said) the case raises the question whether the treatymaking power can expand Congress' enumerated powers.
But on the theory of the beard-cutting case, who needs the Chemical Weapons Convention? One of the prosecutor's core claims in the beard-cutting case is that the instruments used to cut the beards at some prior point traveled in interstate commerce, and that's enough to invoke the federal interstate commerce power. If that's so, then surely Bond is an easy case: presumably the chemicals involved there also at some point traveled in interstate commerce.
That shows, I think , that the beard-cutting case must be wrong. People think Bond is a hard case because the prosecutors need to rely on the treaty power. If they don't, everyone is thinking about Bond in the wrong way. More likely, though, the assumptions in Bond are right -- it can't be enough to invoke the interstate commerce power to show that some item used in a non-commercial activity at one point long before moved in interstate commerce. If the touchstone of federalism is a limiting principle for national power (as was said many times in the health care litigation) then a closer connection to interstate commerce must be required. Otherwise, everything truly is national (and commercial).