A Catch-22 situation. Bad for civil liberties for the mother, good for the kid. Note that the article below requires you to register to read it. This one does not.
Measure forces care on pregnant, meth-hooked women
Pregnant women who are addicted to methamphetamine could be taken into custody and involuntarily held in treatment programs if a new state initiative is approved.
The Senate Judiciary Committee took the first steps toward approving SB 1500 Monday, mandating that state Child Protective Services workers go to court if they know or have reasonable grounds to believe a mother-to-be is using meth and is not getting voluntary treatment.
[...]
Critics of the proposal are concerned that Gorman is trying to give the measure some teeth by extending the definition of what now constitutes “child abuse” to fetuses.
Or as the other article puts it, “The bill also creates the crime of child abuse against a fetus.”
Ahhh…. The real reason: it’s a first step toward banning legal abortions.
Thomas,
Think about it this way, give me an example under which there is no Constitutionally granted authority in the US.
Universal Health Care, automobile safety standards, radio wave transmission, Environmental Protection, Social Security, and commercial Atomic Energy.
As for treaties, they must be ratified by the US Senate. And, as always, may be voided by the a joint resolution of Congress. You are incorrect though. They can NOT trump any protection one may have under the Constitution. A treaty will trump statute law (state and federal) and common law.
For example, if by treaty the government decides to relinquish some land so the British may build a new embassy or the Canadians build a dam and lake. The government may take your land if it wishes but they must still pay you a fair price for it.
#20, Philleep,
While you copied verbatum the first paragraph of the Wikipedia entry for “Jury Nullification”, you missed something. The practice is considered illegal. Read on and you will find the part you missed.
In 1988, in U.S. v. Krzyske, the jury asked the judge about jury nullification. The judge responded “There is no such thing as valid jury nullification.” The jury convicted the defendant, and the judge’s answer was upheld on appeal.
In 1997, in U.S. v. Thomas,[20] the Second Circuit ruled that jurors can be removed if there is evidence that they intend to nullify the law, under Federal Rules of Criminal Procedure 23(b).
Yes, jury nullification does happen. If a juror lets it be known that he favors jury nullification, he most likely will be removed from the jury and even possibly charged with obstruction of justice. And remember, it was jury nullification that gave us many of the civil rights abuses that led to white murderers being let off by all white juries.
2-3 nice separate issues here.
1–The Bill of Rights does a good job of limiting what the US Government can do as in “Make no law.” I might be wrong, but I’ve always thought of treaties as simply being in effect another way Congress can make a law. I’m sure if a case directly on this point went to the Supreme Court that they would rule that way?
2. And abortion is a lot like drugs. What gives the Fed Gov the right to make national laws or enter into treaties with the same effect?—a hook into the Constitution has to be found, valid or not. To that end, what the Feds regulate, can be regulated for good or ill. In this case, yes==why not mandate abortions for drug addled/brain damaged fetuses? And why not death to the mothers for this vicious crime?
3. I have never understood how regulating commerce “among” the states somehow got to activity conducted entirely within a state. Sometime this notion is a very bright line that is enforced, and other times not. If you grow local weed and consume it, where is the instate commerce? And so forth. Nothing is ever as it is supposed to be.
#21
If the Federal government has the authority to regulate the subjects you mentioned, then they can be altered via a treaty. Universal health care and social security are both examples, IMO, of something that the Federal should not in fact have authority to regulate and thus it makes sense to say that they should not be affected by treaty. Environmental protection has already been affected by many treaties. Whaling comes to mind as does Missouri v. Holland. Atomic energy has also been affected by treaty numerous times. Think arms talks and above ground testing. Yes, it is true that treaties can be abandoned by Joint sessions just as Constitutional Amendments can be overridden by other Amendments. However, you must admit that it is much tougher to amend a treaty than it is to pass a new law that corrects a mistake from the past.
#23
Treaties are sort of like standard laws. Where they differ greatly is in their ability to afford the Federal government additional powers merely by vote of the Senate. Read up on Missouri v. Holland. Another, albeit not great example, revolves around income taxes. The anti-income tax folks argue that the only way the Federal government is authorized to collect income taxes, which is expressly forbidden by the Constitution and in which that restriction is specifically stated by the Supreme Court to not be altered by the 16th Amendment, is through treaty.
#24–Thomas==I did not know that. Thanks. I’ll read the case but wont post about it, at least for a few days. Seems “wrong” somehow?
Keep the good stuff coming.
In doing some research on this (instead of work), I discovered Read v. Covert has modified my position somewhat. Not *all* powers can be amended by treaty. In Reid v. Covert, the Court ruled that treaties cannot override individual liberties.
Although this next quote is clearly wrong:
All rights not given to the Federal government are given to the States so clearly some powers can be conferred to the Federal government via the supremacy clause and apparently drug laws do not qualify as individual liberties.
#26–Thomas==ok, STOP! Now I gotta read two cases!! Sounds suspiciously like my original uniformed opinion might be pretty close though?
And yea, not much mystery here–you have a privacy right on what you expel from your body, but no privacy right as to what you put in it–be it food, sex organs, dead animals, or whatever==unless you thought ahead and made it part of your religion.
And relevantly, there is this Bush fellow claiming he can enter treaties all by his lonesome self as commander in chief. It should be illegal that you can pay for what ever legal opinion you want??
Stop the good stuff, while I catch up==unless you change your mind?
Well, that was easier than I thought. Before slogging thru what I assume will be difficult reads, I like to go to wikipedia to get a simplified, and only sometimes wrong, intro to the case. In this instance, I will go no farther than wikipedia:
http://tinyurl.com/3dl2wg
Thomas–you misunderstand, or misremember the relevant holding in Missouri v. Holland:
Holding
Treaties made by the federal government are supreme over any state concerns about such treaties having abrogated any states’ rights arising under the Tenth Amendment.
So–the issue of the Feds creating rights not already granted in the Constitution is not raised at all==unless in dicta, but I’d rather watch Beavis and Butt-Head than do that scut work==unless you confirm you are right and wiki is wrong?
In Missouri v Holland, the Court held that the US government can override the States using treaties as long as it can deem the States “individually incompetent.” Conveniently for the Court, there was nothing in the Constitution that specifically prohibited the Federal government from acting on the bird migrations. That, IMO is a logic flaw. If the only restriction is that a right must explicitly be prohibited in the Constitution, then almost any right can be acquired by the Federal government through a treaty. The Federal government can basically ignore Tenth Amendment (as if that has not happened already).
In Reid v. Covert (I originally misspelled ‘Reid’), the court simply stated that the government could not use treaties to override individual liberties. Reading both decisions, it is clear that the Reid decision was simply and extension of the Missouri decision in that abrogation of individual liberties *are* specifically prohibited.
That brings us back to the drug laws. From where does the Federal government get the authority to regulate drugs? It is certainly not in the Constitution and has nothing to do with interstate commerce. So, where? The answer is that the Federal government used the treaty system to acquire a power it was never given nor should it have.
Thomas–I guess I’ll give both cases a read as I am interested in the drug laws because I am interested in privacy. There must be dozens of cases on point contesting the constitutionality of the federal drug laws and I’ll try to find 1-2 of those as well. I may not be able to do this without going to the local law library to access Nexis.
I take your characterization as accurate, though compared to wikipedia you have shifted the burdens. –ie–Missouri v Holland said the States could not invalidate the Federal Law that was based on a Treaty, BUT could have been regulated by Congress to begin with? Its a small step, but still a step, to rephrase this as an affirmative power on the part of the Feds–but seems rational in this case. You did conclude with the relevant point though–how did a treaty invade the privacy rights of drug users?
Its a small dithering point that for some reason I find interesting nonetheless.
“Bad for civil liberties for the mother, good for the kid.”
“Ahhh…. The real reason: it’s a first step toward banning legal abortions.”
Call it what you will, but I think this is a Freudian slip on the part of the author. It’s either a kid that you can’t kill, or a fetus that you can’t. You can’t have it both ways.
#30
Sheepishly, I admit that I enjoy reading many of these case primarily because of their affect on civil liberties. As if that is not enough Missouri v. Holland was written by Oliver Wendell Holmes.
Missouri v. Holland was an intriguing case both for the case itself and for the implications. What made the Missouri case so pivotal is that Congress had earlier tried to regulate the migration of birds through a normal law and it was held as unconstitutional by the Courts specifically on the grounds that the Constitution did not explicitly grant any such powers and therefore belonged to the States. Thus, the treaty was seen as an end-run around the Constitution. There was quite a fight in the 1950′s over treaty power.
Theoretically, the issue was put to rest by a series of rulings that limited the effect of treaties including Reid v. Covert. However a court ruling, even a Supreme Court ruling, is far different than an explicit law or Amendment as was clearly the case when the drug laws were passed (which was after both of the above cases.)
#32–Thomas==so, what you are really saying is “more than 2 cases will have to be read?” Well, seems worth the effort–thanks for the roadmap.
#31–While the Right to Life group incessantly tries to muddy the legal issues by using incorrect terminology, it still remains only a little inconsistent, but understandable, that while you can abort a fetus, you can’t abuse a fetus===just like we treat our cattle. And yes, these protect the fetus type statutes would help move to an anti-abortion position, but they make good sense standing alone as well.
Thomas,
Good posts. After your Missouri post I was ready to hit you with Reid, but you corrected it first.
Just to clarify a comment you made. The Federal Government assumes power over drugs through the Pure Food and Drug Act and all the subsequent laws. Since the initial slaughter houses were engaged in interstate commerce, as were the drug companies, the Feds have authority. In my opinion, it makes sense for one large agency to oversee drugs instead of a company having to please 50 agencies that can’t afford to investigate. Can you imagine the patchwork of safety as one State allows drug “A” but neighboring states don’t and only one of them has access to check on the manufacturer’s cleanliness and the drug’s purity.
While the Constitution does not grant an absolute right for the Feds to make drug laws, Common Law grants them the authority to make laws for the public health and safety.
Bobbo,
There are other cases but it is generally held through Reid that treaties may not trump individual rights. As I pointed out earlier, the Government may take your land through treaty, but they must still compensate you for it.
We need to protect all life,and life as we know begins as we know begins in the womb, and methamphetamine will probably not help that cause so I welcome the move.
…………………………..
Diana King
Addiction Recovery Arizona