March 16, 2005

Last week, several Major League Baseball executives and players we given an "invitation" by the House Government Reform Committee to testify at an up-coming congressional hearing on the use of steroids. This so-called "invitation" came with a caveat---appear voluntarily or face a congressional subpoena. After several executives and players expressed an unwillingness to voluntarily appear at what will undoubtedly be a political reality show designed for members of Congress to belittle these individuals on National Television, the Committee made good on its promise and issued 11 subpoenas. It also demanded a variety of documents and records including results of baseball's drug tests.

Stanley Brand, an attorney for the baseball commissioner's office has questioned the Committee's jurisdiction and their authority to issue the subpoenas. From his comments, it appears major league baseball intends to stand their ground and challenge the subpoenas.

In response, Committee spokesman David Marin asserted: "Mr. Brand has his facts wrong. He failed to recognize that House rules give this committee the authority to investigate any matter at any time, and we are authorized to request or compel testimony and document production related to any investigation."

Committee Chairman Tom Davis also weighed in on this matter. In a letter to Mr. Brand, he wrote:

"In this case, the Committee is clearly acting within its jurisdiction on a matter of important federal policy. The Committee has properly issued subpoenas. Any American citizen under these circumstances would be required to comply with the Committee's request. Major League Baseball and baseball players are no different."

This confrontation between Congress and Major League Baseball presents an important constitutional question that transcends baseball---was Congress granted the general authority "to investigate any matter at any time" and empowered "to request or compel testimony and document production related to any investigation?"

The answer to this question is no. There is no provision of the Constitution that grants Congress the general power to conduct investigations outside of government or compel testimony and document production from an American citizen. Since Congress is a legislative body, its powers relate to matters of a legislative nature. However, federal courts, in their never ending quest to expand federal power by re-writing the Constitution from the bench, have ruled that "the power of inquiry---with the power to enforce it---is an essential and appropriate auxiliary legislative power of Congress."

Even though Federal courts have recognized a power not enumerated in the Constitution, they have ruled this power is not unlimited. It may be only employed, according to the courts, "in aid of the legislative function." Thus, under this judicially created power, Congress must confine its inquires to matters that would assist it in enacting legislation. A committee of Congress cannot use this "power" for any other purpose.

In their self-righteous arrogance, Congress has taken this judicially created power and expanded it to include matters not within the scope of its legislative powers. In the case of the up-coming baseball hearings, the House Government Reform Committee has stated that it is prepared to grant limited immunity to players who seek to avoid prosecution. Thus, the Committee has already made it known that it intends to use this "power" as a quasi judicial power and make inquires that are not of a legislative nature.

This raises a question. How should Major League Baseball players fight the Committee's subpoenas? If I were one of the players, I would let the Committee know, in no uncertain terms, that you do not have the constitutional authority to make any inquiry into my private affairs. The United States Supreme Court made this principle crystal clear on several occasions. In Interstate Commerce Commission v. Brimson (1894), 154 U. S. 447, 470, the Court held:

"Neither branch of the legislative department, still less any merely administrative body, established by congress, possesses, or can be invested with, a general power of making inquiry into the private affairs of the Citizen." Kilbourne v. Thomson (1881), 103 U. S. 168, 190. We said in Boyd v. U. S., 116 U. S. 616, 630,---and it cannot be too often repeated,---that the principles that embody the essence of constitutional liberty and security forbid all invasions on the part of government and its employees of the sanctity of a man's home and the privacies of his life."

If Congress does not have the constitutional authority to inquire into the private affairs of an American citizen, then it follows that Congress does not have the power to subpoena an individual for that purpose. In addition, since the powers of the federal government pertain to the States collectively, not the people generally, Congress does not have the lawful authority to compel a private citizen to appear before it for any reason.

In Federalist Essay No. 14, James Madison stated that the powers delegated to the federal government apply to the "members of the republic."

"In the first place it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic."

Since the "members of the republic" are the several States, not the American people as comprising one nation, Congress cannot have the constitutional authority to compel an American citizen to appear before it under threat of civil or criminal sanctions.

Alexander Hamilton, in Federalist Essay No. 83, identified who is the object of the general powers enumerated in the Constitution:

"The United States, in their united or collective capacity, are the OBJECT to which all general provisions in the Constitution must necessarily be construed to refer." [Emphasis not added]

If the States, in their united or collective capacity, are the "OBJECT" of the general provisions of the Constitution, then any congressional subpoena power could not apply to a private citizen of one of the united States.

Madison substantiated this fact in Federalist Essay No. 45 when he distinguished the external powers granted to the federal government from the domestic powers reserved to the States:

"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. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part; be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the State."

As stated by Madison, the powers of the federal government pertain, for the most part, to external or foreign affairs. This constitutional principle, standing alone, disproves any assertion that Congress was granted broad authority "to investigate any matter at any time." It also disproves the assertion that Congress has the general power to subpoena a private citizen and compel the production of personal documents. In the case of Major League Baseball, what does a professional sport and steroids have to do with "external or foreign affairs?"

The up-coming hearing on steroid use is nothing but shameless grandstanding by a committee of Congress. Steroids are already "regulated" as a Schedule III substance under federal law. The Controlled Substances Act makes simple possession of any Schedule III substance, without a valid prescription, a federal offense punishable by up to one year in prison and/or a minimum fine of $1,000. Since steroids are already illegal under federal law, how can Major League Baseball players and executives provide the House Government Reform Committee with information that would assist Congress in carrying out its legislative functions? Since when are baseball players and executives experts in the fields of medicine and legislative analysis?

Since these hearing will be national news, it would be a wonderful opportunity to turn the tables and expose Congress' gross usurpations of power. If the American people have any chance of preserving the Constitution and what's left of their liberty, they need to resurrect the spirit of the Founders. A good place to start is a statement by Mr. McClaine in the North Carolina Ratifying Convention of 1788:

"If Congress should make a law beyond the powers and the spirit of the Constitution, should we not say to Congress, You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. This act is unconstitutional. We will disregard it and punish you for the attempt."

Federal usurpations of power will never end, unless civil disobedience begins. We should all stand firm behind Major League Baseball and urge them to tell Congress to take their subpoenas and go to hell!

Note: Congress is using a perversion of the Commerce Clause to regulate Major League Baseball and steroids. Since the Commerce Clause is one of the general provisions of the Constitution, it pertains, as stated by Madison and Hamilton, to the States in their united or collective capacity.

If you are interested in finding out more about the Constitution, take a look at this book. I use it in many of my articles and it is the best book I've found on this subject. Bob

The Federal Government: Its True Nature and Character: Being a Review of Judge Story's Commentaries on the Constitution of the United States.

Reprint of the 1868 edition. ''Perhaps the ablest analysis of the nature and character of the federal government that has ever been published. It has remained unanswered.'' This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to challenge the soundness of its reasoning. The great vise of Judge Story and the Federalists consisted in desiring the clothe the federal government with almost monarchical power, whereas the States had carefully and resolutely reserved the great mass of political power for themselves. The powers which they delegated to the federal government were few, and were general in their character. Those which they reserved embraced their original and inalienable sovereignty, which no state imagined it was surrendering when it adopted the consitution. Mr Madison dwelt with great force upon the fact that ''a delegated is not a surrendered power.'' The states surrendered no powers to the federal government -- they only delegated them. 160 pages.

Archives

The Founders did not Grant the Federal Judiciary the Power to Interpret the Constitution

Have Conservative Talk Show Hosts Sold Out the Constitution for the Republican Party?

The 16th Amendment is not the Source of the Federal Income Tax

What Happened to our System of Limited Government?

The ·2004 Declaration of Independence

You will be Not be Voting for a Presidential Candidate in the November Election

The New York Times wants the Electoral College Abolished

The Flawed Second Amendment Debate

Is the Federal Government Supreme and Above the States?

What Happens if there is a Tie Vote in the Up-coming Presidential Election?

The American People are not Competent to Vote in the Presidential Election

Blame Congress for the War in Iraq

One Way Ticket to Prison

We The People OR We The States?

Beware of Marriage Amendment

Is Social Security Constitutional or just Another Usurpation of Power?

Complete Archives for Robert Greenslade