Barry Bonds has been indicted on charges of perjury and obstruction of justice over his testimony to a grand jury investigating steroid use in Major League Baseball. One of his friends, meanwhile, remains in jail a year after he refused to testify against baseball’s home run king. What’s wrong with this picture?
No, I’m not trying to encourage sympathy for Bonds, whose alleged steroid abuse may have enhanced, but has otherwise overshadowed his remarkable on-field achievements. But Major League Baseball has its own rules about substance use and abuse and has the means — fines, suspension, banishment from the game — of enforcing them. The fact that this is the subject of a federal investigation might lead us to think, if we didn’t know better, that these must be slow days in lawbreaking. Otherwise, why would the U.S. Department of Justice be wasting the valuable time of its (our, really) investigators, the courts, a federal grand jury and the tax dollars of American citizens by trying to save the game of baseball from steroids?
Chances are, there aren’t many conservatives asking this question. For all their talk about wanting to limit the role of government, to make it smaller and less burdensome, political conservatives can be counted on, time and again, to support policies and programs that give the federal government ever larger, more expensive and steadily growing control over the lives of our citizens. Whether it is backing a war of (at best) dubious justification, or expanding the power of the Surveillance State with legislation like the Patriot Act, or "standing with the president" when he unilaterally suspends habeas corpus, American conservatives may reliably be found in the "Yea and Amen" corner of a bigger, more intrusive government.
Indeed, the whole area of law enforcement is one in which the typical conservative can’t grow the government fast enough. Under our federal Constitution, criminal law is, with a few exceptions, a matter left to the states. When Congress, in the early days of the Republic, enacted a federal statute making seditious libel a federal crime, James Madison called the Sedition Act "a monster that must forever disgrace its parents." The future president spelled out his objections to the act as the anonymous author of the Virginia Resolutions, which were adopted by the legislature of that commonwealth. Thomas Jefferson, meanwhile, was the unnamed author of a similar statement, adopted with minor amendment by the Kentucky legislature.
The Sedition Act was designed and used by the Federalists then in power to punish with prison sentences their political opponents and the opposition press. Republican Congressman Matthew Lyons of Vermont won reelection from his jail cell after being convicted under the new law for voicing his anti-Federalist convictions. Editors followed him to jail and newspapers were shut down. All of this occurred within the first ten years of the Bill of Rights, ratified in 1791.
But the thrust of the arguments set forth by Messrs. Madison and Jefferson was not that the Sedition Act violated the "freedom of speech and of the press" guaranteed by the First Amendment. It was, rather, that the Act ignored the fundamental principal summed up in the Tenth: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The Constitution, Jefferson noted, did not grant the federal government any power to punish sedition. It delegated to the Congress "a power to punish treason, counterfeiting the currencies and the current coin of the United States, piracies, felonies committed on the high seas and offenses against the law of nations, and no other crimes whatsoever," he wrote.
Yet Congress in our time has been far more inventive. With various versions and updates of The Omnibus Crime Act, the Comprehensive Crime Control Act, The Narcotics Control Act, The Comprehensive Drug Abuse Prevention and Control Act and other multitudinous and redundant acts of pretended crime-fighting, the tough-on-crime, law-and-order conservatives have joined with their liberal, "big government" brethren in multiplying the number of federal crimes. A task force of the American Bar Association concluded a decade ago that they virtually defied quantification.
"So large is the present body of federal criminal law that there is no conveniently accessible complete list of federal crimes," the task force found. Writing in Reason magazine in April of 2004, William Anderson and Candace E. Jackson reported:
"In just three years in the mid-1990’s, Congress passed criminal statutes dealing with anti-abortion violence, carjacking, failure to pay child support, animal rights terrorism, domestic violence, telemarketing fraud, computer hacking and art theft and many others already covered by state law." In the same article, they noted: "Federal law criminalizes nearly all robberies and schemes to defraud, many firearms offenses, all loan sharking, most illegal gambling operations, most briberies, every drug deal and many more crimes already addressed by state laws."
And that doesn’t even mention all the reams of environmental laws of the past 40 years, including the Endangered Species Act that empowers federal officials to harass and arrest landowners for the crime of disturbing the habitat of a kangaroo rat. The new rights of rodents and snail darters receive a greater protection by our government today than the constitutionally defined liberties of that threatened and endangered species that elects the members of Congress and pays their salaries.
Perhaps nowhere has Congress been more prolific in crime making than in the effort to control drug use. It is worth recalling that when the prohibition of alcohol was enacted, it was generally understood that it was necessary to amend the Constitution to provide an authority that, until then, had simply not been delegated to the federal government. But for the various laws making drugs contraband, no such amendment was enacted or even pursued. Congress simply arrogated to itself the power to prescribe penalties for selling, possessing or ingesting certain kinds of drugs.
And so we have the War on Drugs, first declared as such by President Richard Nixon in 1971 and funded to increasingly extravagant degrees by Republicans and Democrats in Congress ever since. The crusade has been spectacularly unsuccessful in battling the scourge of drugs in our cities and towns, but marvelously efficient in raiding the public treasury. At the end of Lyndon Johnson’s Great Society, the United States was spending a mere $66 million in the battle against illegal drugs. Four years later, at the end of Nixon’s first term, the War on Drugs cost $796 million. By 2000, President Clinton and a Republican Congress had approved $19.2 billion for the drug war.
And what are we getting for all that money? Illegal drugs appear to be as plentiful as they ever were. Business remains highly profitable for the drug dealers and for what has come to be known as the "prison-industrial complex." As more and more prisons are built, young Americans, predominantly young black males, are filling them to overflowing. According to Orange County, California Superior Court Judge James P. Gray, author of "Why Our Drug Laws Have Failed and What We Can do About it," the United States in 1998 had a higher per capita rate of incarceration than any country but Russia. Even Communist China imprisons fewer of its citizens than we do here in the "land of the free."
Perhaps one day soon, Barry Bonds will join America’s growing prison population. And while Thomas Jefferson remains beyond the reach of federal authorities, his home on earth is not. Jefferson cultivated opium poppies at Monticello and poppies were still being grown at that historic site when DEA agents arrived one day twenty years ago and ordered the crop destroyed. Then they confiscated the poppy seeds being sold at the gift shop.
Advocates of the War on Drugs must find it reassuring to know that the same federal authority now saving baseball from steroids has already made Monticello safe from poppy seeds. Jefferson warned us about government like this. So did Madison. The author of the Virginia Resolutions warned against the effort to "consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy."
Manchester, NH, resident Jack Kenny [send him mail] is a freelance writer.
