DownsizeDCFoundation.org
August 23, 2010
Roger Clemens: Pleading the Tenth
By John Markley

Quote of the Day: "All substances are poisons: there is none which is not a poison. The right dose differentiates a poison and a remedy." -- Paracelsus (1493-1541)

The baseball pitcher, Roger Clemens, is in the news. He has been charged with the supposed crime of lying to the politicians in Congress about his use of steroids.

* How should we think about this?
* What are the Constitutional issues involved?

To answer these questions we offer you some imaginary testimony -- things Roger Clemens could have said to Congress, instead of what he did say.

* You've heard of people "pleading the 5th" -- invoking the 5th Amendment's protection against self incrimination, but . . .
* James Wilson argues that Clemens should have "plead the 10th" -- invoking the 10th Amendment's limitation of federal power.
* You'll see why when you read the imaginary testimony below.

An earlier version of this was published on Thursday, January 10, 2008, when Clemens was first called to testify before Congress. This slightly edited version makes points that are just as relevant now.

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Has anyone ever refused to answer a question from a federal inquisitor on Tenth Amendment grounds? I don't know, but I'd love to hear it from Roger Clemens when he testifies at a House Oversight and Government Reform Committee next month:

"Mr. Chairman, I have read the Constitution and it does not grant you authority to hold a hearing on steroid use. Therefore, I will exercise my rights as an American citizen under the Tenth Amendment, and my natural rights as a human being, by refusing to answer your questions.

"But let me clarify one thing: I do see under Article I, Section 8 of the Constitution that Congress has the authority to regulate commerce among the states and with foreign nations. It's possible that this includes anything that relates to the selling of goods across state lines. I will therefore affirm that . . .

"I do not know how or where steroids are produced or distributed, and even if I may have known someone who sold steroids, I never saw him or her transport them across state lines. Therefore . . .

"To the extent that a Congressional hearing on steroids might conceivably be Constitutionally legitimate, because the steroids may have been produced in one state and sold in another, I do not have any information to help you.

"And to the extent that this hearing is illegitimate because there is no federal power to regulate such substances, I refuse to help you, and instead suggest that you obey the Constitutional limits on your power.

"My non-cooperation does not mean that I endorse performance-enhancing drugs in baseball or anywhere else. Major League Baseball is a private organization, and has the right to ban steroid use, and suspend or fine those who disobey. I can see the merit in this. Young men shouldn't have to choose between a huge paycheck today and poor health tomorrow. So . . .

"I agree with Major League Baseball's decision to ban steroids, but your help isn't needed. Tens of billions of dollars have been squandered on waste, fraud, and abuse in Iraq, yet you insist on holding a hearing on a problem that the private sector is taking care of by itself.

"The Constitution you have sworn to obey gives Congress few and specific powers. Prohibiting individual drug use is not among them. Such things are clearly left to the states and to "the people," as the Tenth Amendment says.

"If steroid possession or use should be illegal, the states should have laws and enforce them. But better yet, if drugs are so bad, the private sector could provide drugs tests, and indeed much of the private sector, including baseball, already does this. We do not need federal police and federal prisons warehousing thousands of non-violent drug dealers and drug users. The whole War on Drugs, of which the War on Steroids is a part, is a Constitutional travesty.

"I will not defend steroid-dealers, or any other kind of drug-dealer, but if they are bad, you members of this Committee are much worse. At least steroid-dealers serve willing customers, whereas you use threats of violence against the unwilling, as you did when you forced me to appear before you today.

"The federal republic was formed to provide an internal free-trade zone and a common foreign policy for the states. The federal government has the power to arrest and try people in only a few narrow areas, such as treason and counterfeiting. Steroid use may be dangerous. Steroid use may possibly be immoral. But steroid use is none of your business.

"I do not recognize the legitimacy of this hearing. I will now leave."

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This essay was provided as an educational service by the Downsize DC Foundation.

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