Eric Posner on Bond v. United States

Is the Constitution Written Like the Da Vinci Code?
Eric Posner
Slate.com
October 31, 2013

It’s the Supreme Court case that sounds like a Lifetime movie: When Carol Bond found out that her husband was having an affair with her best friend, Myrlinda Haynes—and that Haynes was pregnant—Bond, a microbiologist who lived in the Philadelphia suburbs, put toxic chemicals on Haynes’ mailbox and her car. She got caught—and was indicted under a federal statute that makes it illegal to use toxic chemicals to harm other people. Congress had passed that statute to implement the U.S. government’s obligations under the Chemical Weapons Convention, the same treaty that Syria was recently forced to sign.

Next Tuesday, Bond’s lawyers will try to persuade the Supreme Court that Congress can’t use the chemical weapons treaty as an excuse for punishing run-of-the-mill criminal behavior. This superficially appealing argument is beloved by libertarians, who have dashed to Bond’s aid, but it depends on a bizarre and tendentious reading of the Constitution that honors neither the founders’ intentions nor the practicalities of governance.

The Constitution gives Congress limited (“enumerated”) powers, which are thought mostly to exclude the ordinary stuff of criminal law like the dispute Bond was involved in. Normally, we think