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October 6th, 2014
How Tyranny Came to America

image

One of the great goals of education is to initiate the young into the conversation of their ancestors.

Modern American education no longer does this.

In fact our schooling widens the gulf between our ancestors and ourselves, because much of what we are taught in the name of civics or American history is really modern liberal propaganda.

Sometimes this is deliberate. Worse yet, sometimes it isn’t.

Our ancestral voices have come to sound alien to us, and therefore our own moral and political language is impoverished.

So to most Americans, even those who feel oppressed by what they call big government, it must sound strange to hear it said, in the past tense, that tyranny “came” to America.

After all, we have a constitution, don’t we?

We’ve abolished slavery and segregation. We won two world wars and the Cold War. We still congratulate ourselves before every ballgame on being the Land of the Free.

national-anthem-cheer-sports-mcclures

And we aren’t ruled by some fanatic with a funny mustache who likes big parades with thousands of soldiers goose-stepping past huge pictures of himself.



True, but we no longer have what our ancestors thought of as freedom.

If Washington and Jefferson, Madison, and Hamilton could come back, the first thing they’d notice would be that the federal government now routinely assumes thousands of powers never assigned to it — powers never granted, never delegated, never enumerated.

These were the words they used, and it’s a good idea for us to learn their language.

They would say that we no longer live under the Constitution they wrote.

Consider this: We have recently had a big national debate over national health care. Advocates and opponents argued long and loud over whether it could work, what was fair, how to pay for it, and so forth.

But almost nobody raised the basic issue: Where does the federal government get the power to legislate in this area?

The answer is: Nowhere.

The Constitution lists 18 specific legislative powers of Congress, and not a one of them covers national health care.



As a matter of fact, none of the delegated powers of Congress — and delegated is always the key word — covers Social Security, or Medicaid, or Medicare, or federal aid to education, or countless other programs or subsidies.

The result of this expansion is that we are more heavily taxed, and worse governed than our ancestors under British rule. Sometimes this makes me wonder: Was George III really all that bad?



The logic of the Constitution was so elegantly simple that a foreign observer could explain it in two sentences.

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The Constitution was the instrument by which the American people granted, or delegated, certain specific powers to the federal government.

Any power not delegated was withheld, or “reserved.” Any additional powers they wanted to grant were supposed to be added by amendment.



It’s largely because we’ve forgotten these simple principles that the country is in so much trouble.

The powers of the federal government have multiplied madly, and its chief business now is not defending our rights but taking and redistributing our wealth.

It has even created its own economy, the tax economy, which is parasitical on the basic and productive voluntary economy.

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Even much of what passes for “national defense” is a kind of hidden entitlement program, as was illustrated when President George Bush warned some states during the 1992 campaign that Bill Clinton would destroy jobs by closing down military bases.

Well, if those bases aren’t necessary for our defense, they should be closed down.



Now of course nobody in American politics will admit openly that he doesn’t care what the Constitution says.

So the people who mean to do without the Constitution have come up with a slogan to keep up appearances: they say the Constitution is a “living document.”

They say it has “evolved” in response to “changing circumstances.” They sneer at the idea that such a mystic document could still have the same meanings it had two centuries ago, or even, I guess, even sixty years ago.

These people, who tend with suspicious consistency to be liberals, have discovered that the Constitution, whatever it may have meant in the past, now means — again, with suspicious consistency — whatever suits their present convenience.



Do liberals want big federal entitlement programs?

• The Interstate Commerce Clause turns out to mean that the big federal programs are constitutional!

Do liberals oppose capital punishment?

• The ban on “cruel and unusual punishment” turns out to mean that capital punishment is unconstitutional!

Do liberals want abortion on demand?

• The Ninth and Fourteenth Amendments, turn out to mean that abortion is nothing less than a woman’s constitutional right!



This marvelous “living document” never seems to impede the liberal agenda in any way. On the contrary: it always seems to demand, by a wonderful coincidence, just what liberals are prescribing on other grounds.



Take abortion. Set aside your own views and feelings about it for a moment.

Is it really possible that, as the Supreme Court in effect said, all the abortion laws of all 50 states — no matter how restrictive or permissive — had always been unconstitutional?

Are we supposed to believe, in all seriousness, that the Court’s ruling in Roe v. Wade was a response to the text of the Constitution, the detection of a meaning that had eluded all court Justices for 200 years, rather than an enactment of the current liberal agenda?

Come now.



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And notice that the parts of this “living document” don’t develop equally or consistently.

In the beginning the states were independent and sovereign. That is why they were called “states”: a state was not yet thought of as a mere subdivision of a larger unit, as is the case now.

The universal understanding was that in ratifying the Constitution, the 13 states yielded a very little of their sovereignty, but kept most of it.



Those who were reluctant to ratify generally didn’t object to the powers delegated to the federal government. But they were suspicious: they wanted assurance that if those few powers were granted, other powers, never granted, wouldn’t be seized too.

Hamilton and Madison argued at some length that under the proposed distribution of power the federal government would never be able to “usurp,” those other powers.

Madison wrote soothingly in Federalist No. 45 that the powers of the federal government would be “few and defined,” relating mostly to war and foreign policy, while those remaining with the states would be “numerous and indefinite,” and would have to do with the everyday domestic life of the country.

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The word usurpation occurs numberless times in the ratification debates, reflecting the chief anxiety the champions of the Constitution had to allay.

And as a final assurance, the Tenth Amendment stipulated that the powers not “delegated” to the federal government were “reserved” to the separate states and to the people.



But still this wasn’t enough to satisfy everyone.

Well-grounded fears persisted. And during the first half of the nineteenth century, nearly every president, in his inaugural message, felt it appropriate to renew the promise that the powers of the federal government would not be exceeded, nor the reserved powers of the states transgressed.

The federal government was to remain truly federal, with only a few specified powers, rather than “consolidated,” with unlimited powers. 



The Civil War, or the War Between the States if you like, resulted from the suspicion that the North meant to use the power of the Union to destroy the sovereignty of the Southern states.

Whether or not that suspicion was justified, the war itself produced that very result.

The South was subjugated and occupied like a conquered country. Its institutions were profoundly remade by the federal government; the United States of America was taking on the character of an extensive, and highly centralized, empire.

Even so, the three constitutional amendments ratified after the war contain a significant clause: “Congress shall have power to enforce this article by appropriate legislation.”

Why is this significant?

Because it shows that even the conquerors still understood that a new power of Congress required a constitutional amendment.

It couldn’t just be taken by majority vote, as it would be today.

If the Congress then had wanted a national health plan, it would have begun by asking the people for an amendment to the Constitution authorizing it to legislate in the area of health care.

The immediate purpose of the Fourteenth Amendment was to provide a constitutional basis for a proposed civil rights act.



But the Supreme Court soon found other uses for the Fourteenth Amendment. It began striking down state laws as unconstitutional.

The big thing to recognize here is that the Court had become the very opposite of the institution Hamilton and others had had in mind.

Instead of blocking the centralization of power in the federal government, the Court was assisting it.





The original point of the federal system was that the federal government would have very little to say about the internal affairs of the states.

But the result of the Civil War was that the federal government had a great deal to say about those affairs — in Northern as well as Southern states.



Note that this trend toward centralization was occurring largely under Republican presidents.

The Democrat Grover Cleveland was one of the last great spokesmen for federalism. He once vetoed a modest $10,000 federal grant for drought relief on grounds that there was no constitutional power to do it.

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If that sounds archaic, remember that the federal principle remained strong long enough that during the 1950s, the federal highway program had to be called a “defense” measure in order to win approval.

Federalism suffered some serious wounds during the presidency of Woodrow Wilson. First came the income tax, its constitutionality established by the Sixteenth Amendment; this meant that every U.S. citizen was now, for the first time, directly accountable to the federal government.

Then the Seventeenth Amendment required that senators be elected by popular vote rather than chosen by state legislators; this meant that the states no longer had their own representation in Congress.

The Eighteenth Amendment, establishing Prohibition, gave the federal government even greater powers over the country’s internal affairs.

All these amendments were ominous signs that federalism was losing its traditional place in the hearts, and perhaps the minds, of Americans.



But again, notice that these expansions of federal power were at least achieved by amending the Constitution, as the Constitution itself requires.

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In fact the radicals of the early twentieth century despaired of achieving socialism or communism as long as the Constitution remained.

They regarded it as the critical obstacle to their plans, and thought a revolution would be necessary to remove it.

As The New Republic wrote: “To have a socialist society we must have a new Constitution.”

Unfortunately, the next generation of collectivists would be less candid in their contempt for the federal system. Once they learned to feign devotion to the Constitution they secretly regarded as obsolete, the laborious formality of amendment would no longer be necessary.

They could merely pretend that the Constitution was on their side.

After Franklin Roosevelt restaffed the Supreme Court with his compliant cronies, the federal government would be free to make up its own powers as it went along, thanks to the notion that the Constitution was a malleable “living document.”

Early in his second term, Roosevelt tried to “pack” the Court by increasing the number of seats. This power play alienated even many of his allies, but it turned out not to be necessary.

After 1937, several Justices obligingly retired; and soon Roosevelt had appointed a majority of the justices.

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The country virtually got a new Constitution.



Roosevelt’s Court soon decided that the Tenth Amendment was a “truism,” of no real force. This meant that almost any federal act was ipso facto constitutional, and the powers “reserved” to the states and the people were just leftovers the federal government didn’t want.

There was almost no limit, now, on what the federal government could do. In effect, the powers of the federal government no longer had to come from the people by constitutional delegation: they could be created by simple political power.



Roosevelt also set the baneful precedent of using entitlement programs, such as Social Security, to buy some people’s votes with other people’s money.

It was both a fatal corruption of democracy and the realization of the Servile State in America. The class of voting parasites has been swelling ever since.



So the New Deal didn’t just expand the power of the federal government; that had been done before. The New Deal struck at the whole principle of constitutional resistance to federal expansion.

Now congress could increase its own powers, at any time, by simple majority vote.



All this would have seemed monstrous to our ancestors. Even Alexander Hamilton, who favored a relatively strong central government in his time, never dreamed of a government so powerful.



The Court suffered a bloody defeat at Roosevelt’s hands, and since his time it has never found a major act of Congress unconstitutional.

This has allowed the power of the federal government to grow without restraint. When it comes to Congress, the Court has been absolutely passive.

The Supreme Court began with the duty, according to Hamilton, of striking down new seizures of power by Congress. Now it finds constitutional virtually everything Congress chooses to do.

The federal government has assumed myriads of new powers nowhere mentioned or implied in the Constitution, yet the Court has never seriously impeded this expansion, or rather explosion, of novel claims of power.

What it does find unconstitutional are the traditional powers of the states.



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Since Franklin Roosevelt the judiciary has formed a union with the other two branches to aggrandize the power of the federal government at the expense of the states and the people.



This, in outline, is the constitutional history of the United States.

You won’t find it in the textbooks, which are required to be optimistic, to present degeneration as development.

A leading liberal scholar, Leonard Levy, has gone so far as to say that what matters is not what the Constitution says, but what the Court has said about the Constitution in more than 400 volumes of commentary.



This can only mean that the commentary has displaced the original text, and that “We the People” have been replaced by “We the Lawyers.”

The original understanding of the Constitution has been reversed.

The Tenth Amendment means that the list of powers “delegated” to the federal government by the Constitution is complete — and that any others belong to the States or the people.

Yet, most people assume the federal government can do anything it isn’t plainly forbidden to do.



The founders believed that our rights come from God, and the government’s powers come from us. So the Constitution can’t list all our rights, but it can and does list all the federal government’s powers.



It’s remarkable that the same liberals who think business monopolies are sinister think monopolies of political power are progressive.

They miss the whole point of the enumeration and separation of powers.



The average American, whether he has had high-school civics or a degree in political science, is apt to assume that the Constitution somehow empowers the government to do nearly anything, while implicitly limiting our rights by listing them.

What it comes to is that we don’t really have an operative Constitution anymore.

The federal government defines its own powers day by day. It’s limited not by the list of its powers in the Constitution, but by whatever it can get away with politically.

It gets crazier.

In 1993 the Court handed down one of the most bizarre decisions of all time. For two decades, enemies of legal abortion had been supporting Republican candidates in the hope of filling the Court with appointees who would review Roe v. Wade.

In Planned Parenthood v. Casey, the Court finally did so. But even with eight Republican appointees on the Court, the result was not what the conservatives had hoped for.

When the Court reaffirmed Roe, its reasoning was amazing.

A majority of the Justices admitted that the Court’s previous ruling in Roe might be vulnerable. But it held that the paramount consideration was that the Court be consistent, and not appear to be yielding to public pressure, lest it lose the respect of the public.

Therefore the Court allowed Roe to stand.



The Court in effect declared itself a third party to the controversy, and then, setting aside the merits of the two principals’ claims, ruled in its own interest!

It was as if the referee in a prizefight had declared himself the winner.

The Court was actually telling us that it put its own welfare ahead of the merits of the arguments before it. In its confusion, it was blurting out the truth.



But by then very few Americans could even remember the original constitutional plan.

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The original plan was as Madison described it: the states’ powers were to be “numerous and indefinite,” federal powers “few and defined.”

This is a matter not only of history, but of iron logic: the Constitution doesn’t make sense when read any other way.

Can we restore the Constitution and recover our freedom?

Maybe.

Discontent with the ruling system, is deep and widespread. And the beauty of it is that the people don’t have to invent a new system of government in order to get rid of this one.

They only have to restore the one described in the Constitution — the system our government already professes to be upholding.

Taken seriously, the Constitution would pose a serious threat to our current form of government.



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