Tuesday, August 02, 2005

Federal Government Needs To Think Big

Federalism has been a big issue with conservatives this year. Two big Supreme Court decisions went against Federalist principles this year, and Congress has all but considered the issue an afterthought.

Few libertarian leaning conservatives will argue that the Federal government isn't big enough. Even neo-libertarians would like to see a smaller domestic government. Ironically, the problem seems not to be that the Feds are thinking big. It is that the Feds are increasingly thinging too small. Edwin Feuler explains:
When the federal government was small, it thought big. Indeed, it focused exclusively on big issues. For example, when the Constitution was written, it listed only three federal crimes. Today there are more than 4,000.Where once our national government concerned itself with preventing only counterfeiting, piracy and treason, it’s now involved in measuring the length of lobster tails and prosecuting importers if those tails are too short. All this is a relatively new development. Almost half of all federal crimes have been added to the criminal code since 1970.
The most troubling aspect of this trend is that it is increasing, and even the most conservative Congress and Supreme Court in decades is unwilling to slow it down. The most that can be said is that violence against women and possession of a firearm are not "commerce." And we needed the Supreme Court to tell Congress that.

I do not deny that terrorism has placed new challenges on the Federal government. In fact, one would think that given the need to conserve resources for such a large task -- think big -- Congress would encourage the movement of most crime and regulation away from the Fed level and push it back onto the States. How much bigger can domestic programs that have nothing to do with national defense or national commerce, identified in the Constitution, get?

There is no end in sight. The House is now taking on "street crime." The most local of crimes is about to burden another Federal prosecutor.
Recently the House of Representatives approved a gang deterrence measure. The Senate is considering a similar bill. Either would make a number of gang-related crimes federal offenses.Now, we’re all opposed to gang violence. But let’s remember that such activity -- shooting, drug running, gun trafficking -- already is illegal in every state. Turning gangland violence into a federal offense doesn't guarantee we’ll have less violence; it simply means we'll be trying defendants in a different venue.
The problem here isn't just some "small government" Constitutional philosophy. What happens when the Feds step into local street crime? They stretch the FBI, which should be focusing on national security and large scale Federal crime, much too thin. The Feds push out any local law enforcement, who then abdicate their responsibility. We end up with ineffective national law enforcment, and ineffective local law enforcement. And the sad thing is, it is unnecessary.

Section 201 would be a major step toward turning all double murders [in more than one state] into federal crimes. . . . Of course, such killings are illegal already and in many states are punishable by death.

[T]his measure seems to be aimed specifically at John Allen Muhammad. He and his associate Lee Boyd Malvo allegedly used a sniper’s rifle to kill people in Maryland, Virginia and the District of Columbia in 2002. But the Muhammad case actually proves there’s no need for another law. He’s already been convicted of murder in Virginia and sentenced to death. While on death row, he may face further charges in Maryland. Malvo, who was 17 at the time of the killings, has been handed a life sentence without the chance of parole. The system already has worked well, convicting these killers without any federal involvement.

The Constitution envisioned very few Federal crimes. While admittedly the economy has nationalized, and many issues that didn't before now cross state lines, there is no justification for the widespread Federalization of our criminal law. We have terrorist cells that need attention. We don't need vandalism being investigated by the FBI and tried in Federal court.

Why are we voting for Republicans again? Oh yeah, that war. What a price we pay for a two party system with only one marginally competent political party.


At 11:18 AM, Blogger Jehane said...

Yeah, but if we have Federalized law we can sentence these malcreants (yes, that's a new word) to death TWICE!!!! At the State and Federal level.

That means we gets to kill them uppity varmints two times!

As my beloved spousal unit likes to say whenever something especially disgusts him, "yee-ha".

At 6:58 PM, Blogger spd rdr said...

Is there a federal law against all varmits, or just the uppity ones?

At 7:56 PM, Blogger Brad Warbiany said...

A while ago, I posted and used three decisions of our court in my post. Raich, Kelo, and the case related to wine shipping. You asked my why I included the wine shipping case, and I mentioned that all three cases were either pro-big business or anti federalism.

Specifically, the wine shipping case fits here. This court has been absolutely pro-central government, pro-big business and anti-federalism on all sides. Raich was the use of the interstate commerce clause where it is absolutely insane. Kelo was a big gift to big business and developers.

And the wine shipping case was a gift to the big wineries. In that case, bear in mind, I think the Supreme Court made the proper decision. I think that is the proper usage of the interstate commerce clause, specifically when they said that if a state doesn't allow any direct shipping, they're not required to allow it from out of state, but if it allowed in-state, they cannot restrict it from out of state. It was the right decision, IMHO, but nonetheless it was a gift to business and a expression of federal power at the same time.

At 8:24 PM, Blogger spd rdr said...

Ho HO!

But consider yourself engaged, Brad!
Uncover the gun ports!
Steer leeward and bring to bear!
(All of which means nothing, but sounds good)

At 10:38 PM, Blogger Jehane said...

Oh dear Lord... Brad, what have you done?

Let the Wine Wars begin.

I have not decided on the varmint law, mr rdr. My federalist sentiments argue for a minimalist approach. However my anti-varmint sentiments argue for the exercise of strong executive authority that only comes at the hands of the federal gubmint.

What's a gal to do? It is a puzzlement. Oh for a strong man with a rolled-up newspaper.

At 10:49 PM, Blogger KJ said...


The merits of the case aside, I disagree with your assessment greatly. The wine case was about SMALL wineries. Not big ones. States that hold the wine distribution hostage to distributers always carry the big labels. Small wineries had no real chance to expand their business except through direct sales to collectors and high end snobby wine consumers. Now they have that chance. The big wineries might do better than before, it was by no means the big win that it was for the small wineries.

BTW, I liked and think I agree with the outcome, but Thomas' dissent made me realize it was probably the hardest case the Court heard this year.

At 11:17 AM, Blogger spd rdr said...

"The wine case was about SMALL wineries. Not big ones."

Ha ha ha! You're killing me KJ! Do you think that Juanita Swedenburg, she of the little Virginia farm winery that took on New York's law, paid the freight? C'mon! The wholesale assault on state alcohol regulation has been going on in every Circuit in the country and is orchestrated by the big boys out in California. Direct shipping was merely a means to pry open the door to what they hoped would lead to the destruction of the Three Tier system of alcohol distribution. It just didn't work out the way they had planned. COSTCO's Washington Commerce Clause v. 21st Amend. case is next up. We'll see how that pans out.

At 11:31 AM, Blogger KJ said...

Well, you are more involved than I spd. But I know that in Georgia the discussion always centered on the ability to get the hard obtain small winery wines. But I will stand down.

At 12:27 PM, Blogger spd rdr said...

No need to stand down, KJ. It was orchestrated to make it appear that way. I've been in a running gun battle with these guys for over four years now, so I'm just a wee bit jaded. besides, I represent about a dozen or so farm wineries and farm wineries. They know the score.


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