Every now and then a lawsuit comes along that singlehandedly changes our country. The list of cases that have painted a new societal landscape is long, with the most recent being NFIB v. Sebelius (where we learned that, according to our country’s final arbiter, the government does have the power to tax the individual if he or she does not purchase whatever insurance the law proposes). We may now add Bond v. United States to that list. But this one must be underscored.
The case isn’t being talked about in the media. In fact, you probably won’t hear about it at all, even when the Court decides the outcome, unless you follow constitutional law. For those who haven’t heard about Bond v. U.S. I’ll give a quick synopsis and then explain why this case is actually more terrifying than NFIB permitting the government to tax us for doing nothing.
Carol Anne Bond discovered that her best friend had an affair with her husband. Bond, a microbiologist by profession, stole a quantity of 10-chloro10H-phenoxarsine from her employer and ordered a vial of potassium dichromate online. The chemicals are toxic if swallowed or touched and are lethal in relatively small doses. Bond began depositing the chemicals on various surfaces that she knew her romantic rival would touch: door handles, mailbox, etc. On one occasion her husband’s secret lover did touch the planted chemicals. The result? A minor thumb burn.
Bond was charged, but not under any state law. Federal prosecutors rode in because of the mailbox tampering but brought charges under 18 U.S.C. 229(a)(1), which prohibits possession and use of a chemical weapon.
If this was the end of the story, it alone should anger everyone who holds dear the notion of state sovereignty—the Constitution doesn’t grant the federal government police power, which therefore leaves criminal proceedings to the states unless the crime is of federal nature. But it’s not the end of the story. What I’m about to explain should not just anger conservatives, it should strike terror into them.
Title 18, Section 229 of the United States Code was written and passed in accordance with a 1993 international treaty known as the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and their Destruction. That’s right, the charges brought against Bond in her domestic suburban love triangle are intended for those who violate an international treaty!
Member countries of the treaty pledged to never use chemical weapons under any circumstances or to develop, produce, or otherwise acquire, stockpile or transfer chemical weapons to anyone. The treaty further required each member country to enact domestic penalties that prohibit any person in its territory from doing the same. This is the reason for 18 U.S.C. § 229.
Essentially, the treaty required each member country to implement the very charges brought against Bond so that individual citizens who violate the terms of the treaty could be charged. Without 18 U.S.C. § 229, the treaty would only affect official government actions, and civilians stockpiling or using chemical weapons would be unaffected. Section 229 makes sense in prohibiting an individual from engaging in chemical warfare.
So, the government is throwing charges designed for international chemical warfare at a lady who caused a minor thumb burn. Egregious? Of course. But the question no one seems to be asking is, why?
In criminal law, both federally and at the state, prosecutors have discretion over what charges to bring against a perpetrator, let alone whether or not to even bring those charges. “Prosecutorial discretion” is the jargon. So, why did the federal prosecutor, in his sole discretion decide to bring these types of charges against Bond when state level battery, and possibly attempted murder charges would’ve sufficed? It doesn’t make sense.
For an administration embroiled in controversy, one that sends the IRS after its political enemies, ignores its own ambassador’s cries for help, and even solicits official legal opinion on whether Executive power permits domestic drone strikes without due process of law, I believe one reason does make sense: to bring these charges against Carol Anne Bond necessarily tests the constitutional limits of enforcing international treaty prohibitions at a state and individual level. The Prosecutor was told to bring them.
If this is so, we’ll soon find out if international treaty provisions can govern individual citizens. (Whether a treaty can govern a state is a separate issue.)
If there were ever a plan to institute a global governance, this would have to be the first step. The Ninth and Tenth Amendments are the last line of defense against global governance and that defense is at the very core of this case.
Paul Clement, widely regarded as the best constitutional lawyer of our lifetime, has taken on the case. He has already successfully argued that Bond does have standing to challenge the constitutionality of § 229. And he’s now successfully petitioned the Supreme Court to decide whether an international treaty can expand Congress’s powers and allow it to then implement and enforce treaty provisions upon citizens.
If Clement loses this case, the door is wide open for arms treaties, police treaties, and all manner of international law to come knocking, not at the door steps of our country, but at the doors of our own homes. If a treaty entered into by our government mandates that Congress implement and effectuates its provisions into our United States Code, we will find ourselves with a new ruler: the U.N.
Don’t think it could happen because of our Bill of Rights? Think again. For that is the very issue the Court has agreed to hear.
Americans must support Clement in this case. The government, in its position, is necessarily arguing that it seeks to hand over its powers to the rule of international law. You think we’ve lost the country now because of an insurance mandate? Wait and see what happens if Clement loses this case.