If neither of the other federal branches have any sense of restraint, this Court must restrain them. The choices before the Court are few. It can abandon any meaningful notion of limited government by upholding this conviction. That is a difficult task, yet we believe that such a standard exists. We urge this Court to adopt this standard, apply it, and reverse this conviction.
Separate incompetence is the logic that dictated the language of the Constitution.
Our entire system of dual sovereignty assumes that Congress and the States have distinct spheres of operation, and that those spheres seldom intersect. The very structure of our federalism presupposes that there is a boundary between the separated powers. That is wrong. Dewey Jones firebombed his cousin's living room. Under the separate incompetence standard articulated by Chief Justice Marshall in Gibbons , this conviction should be reversed.