Bond’s brief for Tuesday argues that the power to ratify treaties neither confers upon Congress a general police power nor guarantees the validity of implementing legislation: “The absence of a national police power is a critical element of the Constitution’s liberty-preserving federalism.”
Kennedy wrote in an earlier case, it is mistaken to believe “that the only, or even the principal, constraints on the exercise of congressional power are the Constitution’s express prohibitions.” The Constitution’s “structural provisions” are not, Bond’s brief argues, “second-class citizens” among the document’s “liberty-protecting provisions.”
In a 1920 case, Justice Oliver Wendell Holmes, whose deference to Congress often was dereliction of the judicial duty to stymie legislative excesses, said that if a treaty is valid, what Congress does to implement it is “necessary and proper.” A paper by the libertarian Cato Institute responds: “If Holmes was correct, the treaty power can be used to undo the carefully wrought edifice of a limited government assigned only certain enumerated powers. That those who drafted and ratified the Constitution intended to bury such a dormant time bomb in their handiwork is too much of a stretch to be seriously entertained.”
No one argues that Bond intended to kill with the bright orange chemical her victim easily detected. And the federal government did not intervene in the Bond case because her action threatened a distinctly federal interest. It intervened because it thought it could: Government’s will to power is an irresistible force until it meets an immoveable object — a court. Which is why our Constitution requires not judicial deference but active judicial engagement in defense of its liberty-protecting structure. And why the case of the mildly injured thumb matters so much.