The Hijacking of America
The nature of government is control and the nature of control is to ever increasingly improve its ability to maintain and exercise itself. Left unchecked, any power will expand to every breadth, width and niche in which it is not opposed. As average, everyday Americans went about their daily routines, politicians and legal scholars used sophisticated politicizing and unabashed legal maneuvering to ensure the security of their ability to control and implement their personal philosophies on the American people. In his essay, "Two Logical Errors in Constitutional Jurisprudence," Friesian philosopher Kelly Ross elaborates on two critical government maneuvers which doomed the American citizenry to ever increasing governmental control.
Undermining the wisdom of the Founders began quickly with one of their peers. Supreme Court Chief Justice John Marshall, appointed by John Adams, laid the foundation of current constitutional law. He also set the precedence whereby judges can overrule the people under broad powers not actually granted the judiciary under the Constitution. In McCulloch v. Maryland (1819), the issue at hand, and the first death-blow to our republic, was the meaning of the "necessary and proper" clause,
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by the Constitution in the Government of the United States, or in any Department or Officer thereof. [Article I, Section 8, Paragraph 18]
In his ruling, Marshall either through calculated federalism or a serious error in logic, defined the meaning of "necessary" as,
[t]o employ the means necessary to an end, is generally understood as employing any means calculated to produce the end, and not as being confined to those single means, without which the end would be entirely unattainable. ~ McCulloch v. Maryland (1819)
Marshall argued that Congress had the "implied" powers to make laws that supported their "expressed" powers listed in the Constitution. The result of this is staggering in its effect. Instead of defining "necessary" as only those actions necessary for the government to achieve a stated goal of the People while limited by the power of the States, or the People, Marshall gave the federal government legal carte blanche to use "any" means to achieve any goal they choose to set. In other words, the ends justify the means in all federal government activity. Now the federal government had both the power to define the goals, and the power to use any means they deemed necessary to achieve them -- including stripping power from the States and the people where convenient. Obviously, this ran completely contrary to the intent of the Founders to empower the People as ultimate authority over themselves. Specifically, the decision nearly completely nullifies any limitations of Article I placed on Congress. It is an outrageous conclusion, which has played a key role in several critical federal actions to date. In fact, the Clinton Administration spelled out their belief that the federal government had plenary powers (absolute final authority) before the Supreme Court and there has only been one Supreme Court decision since the New Deal in all their decisions relating to the ruling limiting federal powers (Lopez v. the United States).
Once this crack in our constitutional logic was opened, political powers were not long to take advantage. Ross notes some governmental restraint in the example of Grover Cleveland vetoing a funding bill for the relief of California dust bowl victims where Cleveland cited that the government had no authority to exercise its power merely for "objects of benevolence". With the best of intentions, Congress was attempting to establish a politically popular goal of helping California victims by using its legal authority to use "any" means to achieve the goal even by robbing taxpayer's funds without taxpayer approval to do it with. Such federal assistance programs now run amok. The average American has no idea where the money taken from them may be headed, including completely out of the country under the guise of one form of assistance or the other.
The New Deal Supreme Court in coordination with democrats used these new powers to greatest effect in United States v. Butler (1936). In their decision, the court ruled that it was within the power of the federal government to "lay and collect taxes" for the "common Defense and general Welfare of the United States". Since "general welfare" can mean absolutely anything, the Supreme Court again issued the federal government another carte blanche. But this time, it gave them a blank check to do it with. Now the federal government not only had carte blanche power of law over the States and the People, it had the power and influence of money to achieve the goals of those in power at any given time. Thomas Jefferson feared the coming of this situation,
With money we will get men, said Caesar, and with men we will get money. Nor should our assembly be deluded by the integrity of their own purposes, and conclude that these unlimited powers will never be abused, because themselves are not disposed to abuse them. They should look forward to a time, and that not a distant one, when a corruption in this, as in the country from which we derive our origin, will have seized the heads of government, and be spread by them through the body of the people; when they will purchase the voices of the people, and make them pay the price. [Notes on Virginia, 1784]
The Roosevelt Administration anxiously took advantage of its new powers and proceeded to buy off the electorate with Social Security. The Johnson Administration followed with Medicare. Caesar now had money and was getting men (voters) with it.
The second juridical nail in our coffin came in the form of the Supreme Court decision United States v. Darby (1941). In its decision defending the federal government's authority to impose labor laws, the Court destroyed the 10th Amendment by declaring it a mere 'declaration', a tautology, a meaningless fact describing the structure of our government and not an actual legal restriction placed upon the government that needs obeyed by them under law,
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ~ 10th Amendment
In its decision, the Supreme Court stated that the 10th merely,
"...states but a truism that all is retained which has not been surrendered." United States v. Darby, 312 U.S. 100, 124 (1941)
This is the height of chicanery. Through slick legalisms, the Court effectively reversed the intent of the 10th Amendment. By careful use of the word "surrendered", the Court now says that powers only default to the States or the People when the federal government expressly surrenders the issue to them instead of them being "reserved to the States respectively, or to the People" by default. Thus, if the issue is your right to chew gum in public, and since it is not clearly addressed in the Constitution, the power to decide is no longer yours by default. Instead it is only your decision if the Supreme Court or Congress decides that they don't care, and thus, "surrender" the decision to you. This is a complete flip of the founding principles of this nation where the People were the intended ultimate authority with a limited government having to justify its involvement in our lives through strict, restricted legal processes. The tiresome argument continuously offered in defense of this approach to definition of powers is that of slavery and the belief that without plenary powers, the federal government would have been unable to stop state laws allowing it. However, this is a woeful flaw in logic. It was never an expansion of federal powers that was necessary to resolve the issue of slavery but rather an implementation of existing laws and powers. The federal government willingly turned away from the issue of slavery at a time when it was too weak to hold the country together in battling over the issue until 1861, anyway. Attempting to use the failure of actually implementing past federal law as an excuse to increase the power of federal law now is completely disingenuous. As Ross notes, as a consequence, the average American now cowers under the authority of a range of federal agencies; IRS, DEA, OSHA, USDA, FDA, BATF, EPA, FEMA and others.
While members of the Supreme Court enjoy special protections, only being subject to impeachment for "high crimes and misdemeanors", they continue to rule the nation by assuming any powers they deem necessary to achieve their goals. If we are to turn around our slide into socialism, an arduous reworking of the Constitution and reconsideration of powers of the Supreme Court are going to be required.
Recently, democratic Congressman Pete Stark (D, CA) summed up the reality of the situation,
I think that there are very few constitutional limits that would prevent the federal government from rules that could affect your private life. The federal government, yes, can do most anything in this country. ~ July 24h, 2010. Hayward, CA townhall.
That is where we stand, according to the individuals actually responsible for making and executing our laws. Whether there is any road back is anyone's guess.
Still one thing more, fellow citizens -- a wise and frugal government, which shall restrain men from injuring one another, which shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned. This is the sum of good government.
~ Thomas Jefferson, First Inaugural Address, 1801