Federalism - The Tenth Amendment.

I blogged before about standing under New Jersey law here (statements) and here (search and seizure). This post deals with standing to raise a claim under the Tenth Amendment. Notwithstanding a split among jurisdictions, the Third Circuit will not address the merits of whether the federal government has overreached its constitutional authority and impinged on state sovereignty without first addressing standing. In short, standing requires the involvement of the state or their officers as a party or parties (Tennessee Elec. Power Co. v. Tennessee Valley Auth., 306 U.S. 118, 143–144 (1939)). United States v. Bond (3rd Cir. 2009).

Strikingly the government pursued a theory at trial under the Chemical Weapons Convention Implementation Act of 1998, a statute enacted pursuant to the Chemical Weapons Convention of 1993. In other words, this statute was the product of an international agreement.

Notably, the Third Circuit explains this Convention was intended to prohibit "the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons . . . .” OK, so in the context of an international Convention, is it more likely the parties contemplated national security threats or actions taken by an enraged wife against her husband's paramour?

Yes, Congress intended to "[p]rohibit natural and legal persons anywhere on its territory . . . from undertaking any activity prohibited . . . under this Convention . . . ." Yes, there is evidence that this defendant did something wrong by stealing chemicals from work. And yes, there is evidence that she is blameworthy for using the chemicals to try to hurt the victim. But both the government and the court are reading the plain text and legislative intent much too broadly in applying the law to this defendant. I cannot help but wonder why the feds did not decline to pursue this, and instead leave this to the State authorities.

Update: This piece about the Tenth Amendment in politics appeared today at the WSJ Law Blog. The Law-N-Politics Neologism of the Day: ‘Tenther’.

Standing - Right to Remain Silent

I blogged once before about standing here. That post dealt with standing under the New Jersey Constitution to suppress evidence seized during an unlawful search.

This post relates to standing to suppress statements.

The New Jersey privilege against self-incrimination, derived from state common law, is broader than the Fifth Amendment. But standing here is in lockstep with federal law.

Unlike search and seizure, standing to object to statements is strictly a personal right. State v. Baum.