Roger Clemens and the Level Playing Field Clause

This commentary is cross-posted at the Tenth Amendment Center blog.

Article I, Section 12 of the United States Constitution authorizes Congress to investigate and prosecute professional sports figures for use of performance-enhancing drugs. In fact, it was James Madison who “felt no small anxiety for the elixirs & etc. employed by certain Cricketers for inequitable advantage on the Field as widely reported in our Newspapers,” giving sound basis for what constitutional scholars now call the Level Playing-Field Clause.

What? Did I hear you say that your dog-eared pocket Constitution omits Article I, Section 12? That can’t be. How else do we explain the right of the Federal Government to spend tens of millions of dollars prosecuting that threat to the Republic, former Red Sox pitcher Roger Clemens, for alleged steroid use?

By now you’ve perceived that the opening paragraph is not true. I also hope that regardless of your political stripe, you regard the prosecution of Roger Clemens for what it is: an unconstitutional and downright frightening exercise of police power which the Framers never intended for the national government. That Clemens was acquitted is entirely irrelevant. Even fascism can be fair now and then.

In vetoing a public works bill in 1817, then President Madison wrote: “But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest.”

Defending our Constitution requires educating our fellow citizens as to its limits. Today’s teachable moment: an illegal Congressional witch-hunt ending with a $3 million, nine week trial of a seven-time Cy Young Award winner who was accused of steroid use by a known liar.

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5 thoughts on “Roger Clemens and the Level Playing Field Clause

  1. The fact that EVERYONE knows he is guilty, (first of illegally using drugs, and second of lying to Congress) and was able to escape only because the evidence was judged inadmissible, kind of takes the edge off the “poor Roger” song.

    • Whether Roger Clemens took steroids, jay-walked or punched an old lady is wholly irrelevant. The disturbing bit is that Congress thought it had the constitutional basis for wasting millions in tax dollars on a police power reserved to the states.

      • Ben, I’m unclear about this. Do you feel the federal government doesn’t have the right to regulate drug use, or that the legislative branch of the federal government doesn’t have the right to hold hearings and cite those who commit perjury? Obviously, if the federal government has those rights, they also have the right to enforce them.

        • In 1919 the 18th Amendment was ratified to prohibit the manufacture, sale and transportation of alcoholic beverages in the United States, which gave Congress (concurrent with the States) jurisdiction to enforce with appropriate legislation.

          Had Congress been given a general police power (which it wasn’t) to ban stuff, no amendment to the Constitution would be necessary. As you know, the 21st Amendment repealed the 18th, thus ending the Prohibition. Last I checked the Constitution was not altered to permit Congress to criminalize drugs, steroids or 32 ounce sodas from 7-11.

          Yes, perjury is against the law. But if Congress was acting beyond its constitutionally-limited powers by hauling major league ballplayers into public star chambers for interrogation, the perjury charge is just a further usurpation of the rule of law on which our Republic was founded.

          Note that the I’m not a Red Sox fan, but I am a fan of the Constitution. The point of this commentary wasn’t to inspire a debate on the guilt or innocence of Roger Clemens, but rather to illustrate the growing fascism of a Federal Government that routinely and shamelessly flouts our constitutional charter.

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