Barry Bonds' big asterisk

It's been said that in a battle of liars, the first liar doesn't stand a chance.

Major League Baseball tried to convince everybody that its steroids-testing policy was working and all those shattered home-run records were falling due to nothing but hard work in the weight room.

Then Congress tried to convince everybody that the U.S. Constitution gave it the power to require steroids testing in professional sports with lifetime bans for violators.

In this game of Liars' Poker, baseball lost. Not because the extraordinary lawyers who represent the owners and players were bluffed, but because Congress came to the table with extra cards: the ace of threatening to repeal baseball's valuable and unique anti-trust exemption, a flush of tax laws that can penalize owners while nobody else notices, and the full house, public opinion.

What could Major League Baseball do? Point out that Congress doesn't have the power to require drug testing in professional sports?

No, baseball couldn't do that, but we can.

The Constitution limits the power of the federal government. Congress is not permitted to wander over the national landscape, picking out conduct to criminalize. The power to do that kind of legislating was left to the states, or rather, retained by the states in a tight-fisted grip when the Constitution was hammered out in 1787.

The Constitution gives Congress the power to regulate interstate commerce, but that is not an unlimited power to regulate everything everywhere, as the Supreme Court told Congress recently when it struck down federal laws dealing with violence against women and guns near schools.

This is not to say that Congress never gets away with usurping state powers. The federal ban on marijuana is a flagrant violation of the Tenth Amendment, but there aren't too many elected officials who will stand up in front of a camera and make that case. Regardless, anyone who says Congress has the power to ban marijuana that is grown, distributed and used within state borders will have to explain why Prohibition required a constitutional amendment. Read more about it in Marijuana, Prohibition, and the Tenth Amendment at www.SusanShelley.com.

Still, Congress would have an uphill battle persuading the Supreme Court that it has the constitutional authority to pass a law requiring drug tests and penalties for employees in a privately-owned business, especially a law that applied to one specific private business and not any other. "It's for the sake of the children" is not a constitutional argument. It's the language of a federal power grab that is regularly used to confiscate your money and infringe on your freedom.

Now you know why Senator Jim Bunning, baseball Hall of Fame member and chief sponsor of the Integrity in Professional Sports Act, looked so relieved Tuesday when Major League Baseball announced that it had reached agreement on a new, tougher drug-testing policy.

"This is what I had hoped for all along," Senator Bunning said, "for the two private parties to come to an agreement on their own without Congress having to do it for them."

Senator Bunning knows the embarrassment he has avoided: Barry Bonds' home-run record staying on the books while his drug-testing law is struck out.


Copyright 2005

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