Today’s Supreme Court ruling in Bond v. United States is valuable in two important respects. First, the Court majority, with no dissent, strengthens the existing presumption that federal statutes will not be read to preempt or interfere with traditional state responsibilities without a clear statement from Congress that it intends to do so in the circumstances at issue. Because federalism was designed to and does promote individual liberty, this is not just a victory for “states’ rights.”
Second, three justices (Scalia, Thomas and Alito), thought that the federal statute implementing what most refer to as the Chemical Weapons Ban Treaty (its formal title is the “Convention on the Prohibition of the Development, Production, Stockpiling, and Use of Chemical Weapons and Their Destruction”) could not be read in a limited manner to avoid the constitutional challenge Ms. Bond raised in defense of her prosecution for using rather common chemicals to harm (what the Court characterized as “the simplest of assaults” of) a former friend involved in a love affair with her husband. Those three justices wrote and joined concurring opinions that they would strike the statute down as exceeding the federal government’s enumerated powers.
These concurring statements, together with the constitutional avoidance language of the majority opinion—that concedes that the federal statute would at least be arguably unconstitutional if it applied to the prosecution at issue—should leave little doubt that the federal treaty power has some substantive limits. In short, the progressive theory that any duly-ratified treaty can override any individual right should be put to rest.