I don’t accept that. The founders put in an amendment process for unforeseen needs of a “new and growing nation.” With all of the discussion during the debates on ratification about the fear of centralized power, it is unfathomable to think that the founders deliberately left it up to that central power to define the limits of it through a vague general welfare clause (or necessary and proper, or interstate commerce).
Yes, my “effectuating those enumerated powers” argument has indeed been rejected by the courts as it involves taxing and spending for the general welfare. But, as **Bricker **has stated, it has not been defined as a grant of power. Further, the Court has only rejected the “anything they damn well please” argument in the most superficial sense. What has been struck down even under the new “conservative” court as exceeding Congress’ power to regulate? Guns in schools? Passed again with an interstate commerce hook and not revisited in 19 years. Federal civil actions for violence again women? Just mandate through funding that states prosecute domestic violence to a federal standard. The ACA exceeds the commerce power? Just call it a tax.
For every “bold stand” the Court has taken against federal power, it has simply allowed an end run through other means. That’s why I disagree with SD v. Dole. Five percent is coercive. If it isn’t, why have all 50 states passed a 21 year old drinking age? And if the end result is a national drinking age of 21, then why does it matter to anyone but law students and legal scholars how it was accomplished? These limits simply have no teeth.
And Exapno, don’t forget the Founding Fathers addressed the issue even outside of the amendment process. Suppose there are issues that a new and growing nation needs to address outside of I,8. The Tenth Amendment said that it is up to the states (or the people) to address - not the Feds.
That reflected their fears about an abusive central government. Reality didn’t work that way. The central government wasn’t abusive - it was barely effectual. A slow uptake in the realization that it was the federal government, not the states, that was the only entity that could provide for all residents is essentially the story of the next 150 years, culminating in the New Deal. The debate over state vs. federal control and spending is loud and continuous in our history.
They sort of punted. Only 3 justices wanted to go further and rule broadly. The 9-0 was a common sense ruling that a chemical weapons law didn’t apply to normal assault and battery cases.
That seems like a very good rule to me. Small amounts of dangerous substances do not chemical weapons make.
So what happens now? Can the state charge her, or does this fall under “double jeopardy” rules? Seems like they should have been the ones to do so in the first place.
Can the state really still prosecute her? I thought that one of the things I’d learned here on the dope was that if your illegal actions could be charged as either Mopery or Dopery, and you are charged with Dopery but that charge gets thrown out or you get found innocent on it, they can’t then go back and charge you with Mopery to try and get a conviction.
So if that’s the case, how was this not a use of a chemical weapon?
Mind you I agree that this was not an international incident, but it seems to me the treaty was made with making sure that NO ONE uses chemical weapons. Didn’t the world have a problem with Syria using chemical weapons, even tho they were only used on Syrians? So why do we look the other way when an American uses a chemical weapon on another American?
ETA: And WTF??? why did the local police not pursue this or ever file charges for assault?
No, this is not correct. Treaty Indians can have special hunting rights in their treaties, but those rights are subject to conservation laws for endangered species.
The feds are not limited by charges a state brings, and vice-versa. (At least they’re not limited by Double Jeopardy restrictions). This is because the state and the federal government are separate sovereigns. If the same act is a crime in both the state and federal spheres, both can prosecute without offending the Double Jeopardy Clause.
Even though it was a chemical, and was used as a weapon, the unanimous Court held that it wasn’t a “chemical weapon” as that term is understood.
You seem to be saying what Scalia, Thomas, and Alito did in their concurrence: Yes, that is what Congress MEANT to enact, but if you read the law, they didn’t, so we can’t rewrite the statute; we must apply it and determine if it is constitutional or not.
It’s 2014 - isn’t it a bit late to be laying plain old state charges for whatever?
Is there a statute of limitations on what she did? (What would the charge be, if the court has ruled it’s not a chemical weapon?)
Also, does the US law include the “right to a speedy trial” found in Canadian law?
If nothing’s changed in the collection of evidence the state has, they should have laid charges at the time they collected the evidence, not when they feel like it almost a decade later.
In short, the West Virginia Terroristic Threats Act prevents a person from making threats of serious bodily harm with the intent to “affect the policy of a branch or level of government.”
Mr. Yocum was on his way to jail when he told the arresting officer that he would rape his wife and daughter. The State reasoned that such threats might cause police officers not to do their duty in transporting prisoners to jail and charged Mr. Yocum with the terrorism crime.
The State Supremes nailed it, in my opinion. Yes, what he did met the literal definition of the statute, but his conduct was not “terrorism” envisioned by the Legislature and the statute is inapplicable.
This case is the same. Yes, she technically used a “chemical weapon” as defined by statute, but her conduct was not meant to fall under the chemical weapons statute. As the WV Supreme Court said, such a construction “trivializes” the word terrorism (and in this case chemical weapons) by such a cavalier use of the word.
I’m not clear about what you mean. “Chemical weapons” and “terrorism” have well known meanings that transcend their strict statutory or dictionary definitions. We know what those words mean in spirit. Likewise, we know that trying to poison your neighbor or threatening a cop’s child is not a use of a chemical weapon or terrorism respectively.
There is no intention of dismissing these acts as inconsequential. There is simply a recognition that those words don’t mean what the prosecution in each case say that they mean.