Barry Bonds and the Constitution

Barry Bonds was indicted today, accused of lying to a federal grand jury when he testified that he never knowingly used illegal performance-enhancing substances.

He could have told the grand jury that he was not going to answer their questions at all. He had that right under the U.S. Constitution's Fifth Amendment, and he will have that right again during his trial.

But there's another constitutional issue involved in this investigation, and it's more important than whether Barry Bonds told the truth to a grand jury.

The federal government has no constitutional authority to ban performance-enhancing drugs.

This is not to say that performance-enhancing drugs should not be banned. But the U.S. Constitution does not give Congress the authority to ban them.

In 1919, Congress passed a law banning the manufacture, sale and transportation of alcoholic beverages; but because the Constitution did not give Congress the power to regulate alcohol, Prohibition required a constitutional amendment. The 18th Amendment was passed by a two-thirds vote of the House and the Senate and then ratified by the legislatures of three-quarters of the states. In 1933, Prohibition was repealed by the 21st Amendment in the same manner.

If a lab in California manufactures a drug and sells it to a person in California who uses it in California, the U.S. Constitution says it's up to California to make that a crime.

James Madison explained it this way: "The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite."

This is more than just a detail from your high school government class. The Constitution's limits on the power of the federal government are there to protect our freedom from being gradually revoked by our own elected officials. Freedom isn't a slogan. It's a condition that exists under a government of limited power.

The federal government conducted a four-year investigation into the illegal distribution of performance-enhancing drugs, and many people have been questioned and searched and hit with enormous legal bills. The machinery of federal law enforcement is a powerful and potentially oppressive force.

An investigation alone, even without an indictment, can destroy lives.

That's why it's important for the American people to hold the government to the constitutional limits of its powers. Whether it's Barry Bonds or a cancer patient with a prescription for medical marijuana, the targets of federal law enforcement have the right to question whether the law they have broken is constitutional or not. We all should question whether the law is constitutional or not.

It may not be popular to point this out. Steroids can be very dangerous. But constitutional limits on the power of a democratically elected government are the difference between a free country and mob rule.

Read more about it in "Marijuana, Prohibition and the Tenth Amendment" at www.SusanShelley.com.

Copyright 2007

Source note: The James Madison quotation is from Federalist No. 45, available online at http://thomas.loc.gov/home/histdox/fed_45.html.

Editor's note: You may be interested in the earlier post, "Barry Bonds' Big Asterisk."


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