Epic painting puts chemicals prosecution, Bond v. United States, into perspective

gassed

In this month that marks the centenary of World War I, the U.S. Supreme Court evoked an epic image of that global conflict. Thus was rejected today the prosecutorial conflation of chemical warfare with what the Court in Bond v. United States called an “unremarkable local offense.”

The image is the one above: John Singer Sargent’s 1919 painting, Gassed. Fully 20 feet wide and 7-1/2 feet tall, it hangs in the Imperial War Museum in London. (image credit) Writing for a 6-member majority, Chief Justice John G. Roberts, Jr., described the scene, one that Sargent had encountered in 1917 on a battlefield in France:

‘[T]wo lines of soldiers, blinded by mustard gas, clinging single file to orderlies guiding them to an improvised aid station. There they would receive little treatment and no relief; many suffered for weeks only to have the gas claim their lives. The soldiers were shown staggering through piles of comrades too seriously burned to even join the procession.’

The tragedy, Roberts wrote, contributed “to an overwhelming consensus in the international community that toxic chemicals should never again be used as weapons against human beings” – a consensus reflected in instruments like the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, which today has 190 parties. Among them is the United States, which, Roberts explained, “gave domestic effect” to the obligations it had assumed under that treaty in 1998, when it passed the Chemical Weapons Convention Implementation Act, 18 U.S.C. § 229 et seq. The statute makes the use of “chemical weapons,” a federal crime, punishable by death if the use resulted in death. It “‘goes without saying,'” Roberts concluded, that Congress had in mind tragedies along the lines depicted above – or at least as grave as the mid-1990s sarin gas attacks in Japan. He deemed well out of Congress’ mind the facts at bar: “an amateur attempt by a jilted wife to injure her husband’s lover, which ended up causing only a minor thumb burn readily treated by rinsing with water.”

This overturning of a federal conviction on federalism grounds did more than give perspective on the acts under review. It also avoided the asked-for reconsideration of Missouri v. Holland (1920), a precedent nearly as old as Sargent’s painting. There a unanimous Court upheld a federal statute that gave domestic effect to a 1916 treaty by regulating the hunting of birds that fly between the United States and Canada. Invoking the Constitution’s treaty-making and supremacy clauses, Justice Oliver Wendell Holmes, Jr., wrote:

‘If the treaty is valid, there can be no dispute about the validity of the statute under Article I, § 8, as a necessary and proper means to execute the powers of the Government.’

Holmes’ terse reasoning invites questions, many of them bruited about in the months since the Court announced it would review the decision below in Bond. (See, for example, this article by my Georgia Law colleague Harlan Cohen.) Roberts’ majority opinion declined, but 3 Justices who disagreed with him accepted that invitation. “[T]he Treaty Power is itself a limited federal power,” Justice Clarence Thomas wrote in a concurrence-in-the-judgment that Justices Antonin Scalia and Samuel Alito, Jr., joined. In another concurrence-in-judgment Scalia, joined by Thomas, attributed others’ reluctance to revisit Holland to the nature of the case. “We would not give the Government’s support of the Holland principle the time of day,” they insisted, “were we confronted with ‘treaty-implementing’ legislation that abrogated the freedom of speech or some other constitutionally protected individual right.” Whether they are right remains a question for another day.

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