Wednesday, June 22, 2011

Usurping the Constitution - Twelve steps to tyranny

This book review appeared in “Quarterly Review,” Vol. 4, No. 1, Spring, 2010. It contains 12 startling ideas by the authors of a provocative new book about how the federal government has found ways to steal power denied by the U.S. Constitution...

“Who killed the Constitution? The fate of American liberty from World War I to George W Bush,” Thomas E. Woods, Jr., and Kevin R C Gutzman, New York: Crown Forum, 2008.

Zombie: a dead Constitution walking

WESLEY ALLEN RIDDLE, a conservative Constitution Party candidate for U.S. House of Representatives in Texas District 25, endorses a pessimistic analysis of the state of the US Constitution

The United States Constitution is the oldest fundamentally unaltered
governing document in the world – at least textually. Words and
amendments are misleading, however, since they do not capture the
qualitative essence of constitutional regimes. While most recent
amendments are technical, the 20th century witnessed fundamental shifts
in the meaning of the Constitution. Original Intent was dropped in favor of
a “living” interpretation, and this interpretation has made a zombie of the
United States Constitution.

In this book, two eminent scholars come to a startling and disconcerting
conclusion. Their argument is that the Constitution is literally dead. Thomas
Woods, Jr and Kevin Gutzman identify the twelve worst ways all three branches of the federal government used to kill the United States Constitution, by which they mean removing all restraining elements from federal officials so they can essentially do whatever they want.

First of these dirty dozen involves acts during World War I in violation of
the First, Ninth and Tenth Amendments and freedom of speech. The Sedition
Act of 1798 had attempted to criminalize disloyal speech during the Quasi
War with France, but the people were so incensed at violations of the First,
Ninth and Tenth Amendments that a political revolution ensued in 1800
catapulting Thomas Jefferson to the presidency. The Sedition Act expired in
1880 , and for more than a century the federal government did not try to pass
another anti-sedition law. This changed with the Espionage Act of 1917 and
the Sedition Act of 1918.

Second involves overreach by activist presidents, who weaken
constitutional constraints on their executive power – among other things, so
that they can seize and control private property. In 1950 President Truman
ordered his Secretary of Commerce to seize and operate steel mills to aid the
war effort in Korea. No law of the United States gives the president authority
to seize private property, and the steel seizure made its way to the Supreme
Court in the form of Youngstown Sheet & Tube Co. v. Sawyer (1952). The Court
overturned the president’s action but failed to deny the president had implied
or residual power.

Third in the list involves shifts in favor of certain policy positions
regardless of constitutionality. The fact that a government decision is
beneficial, even morally right does not make it constitutional. Positive policy
outcomes do not ensure proper government action and may undermine the
rule of law if adopted contrary to the meaning of the Constitution. Once the
law substitutes a policy preference for decision based on legal reasoning, the
government steps outside the bounds of the Constitution, creating powerful
precedents for more extra-constitutional measures. This is precisely what
happened in the case of Brown v. Board of Education of Topeka, Kansas
(1954). The popular decision forbade segregation of schools on the basis of
race. It overturned the distasteful ‘separate but equal’ standard handed down
in Plessy v. Ferguson (1896), but it did so on the basis of declaring that the
Fourteenth Amendment’s equal protection clause intended public schools to
be integrated—a basis that was historically inaccurate.

Number Four was an outgrowth of the 1954 decision. In Brown II (1955) the Supreme Court ruled segregation of state schools had to end “with all deliberate speed,” which resulted in forced busing.

Five dates back furthest in nascent form but has turned into the annual
habit of pork barrel spending and congressional prerogative to spend taxpayer
money on earmarks or pet projects. The most famous recent example (2005-
2006) is the Bridge to Nowhere in Alaska, which cost more than $200 million.

In the early years of the Republic, Congress and the president envisioned
national improvements or what we refer to as infrastructure, to facilitate trade
and commerce. Jefferson and Madison recognized the need for roads, canals,
etc., as well as the need for national jurisdiction and a means to address them
systematically. For this latter aspect, they concluded that it would require
constitutional amendment.

Six is dubbed gold robbery. To understand why, one has to realize the US
dollar was defined as roughly one-twentieth of an ounce of gold throughout
American history. Gold was actual money, and paper represented the specie.
Paper notes could be redeemed for gold at any time prior to March 1933,
when the federal government announced a banking emergency and recalled
monetized gold in the U.S. If one possessed gold in the bank or a stash of
gold coins in the closet, the Government ordered one to turn it in! The
Trading with the Enemy Act (left over from 1917) was amended to give the
president authority to “investigate, regulate, or prohibit” hoarding of gold.
The confiscation of gold was done in the name of a banking-and-currency
management crisis so most Americans assumed their gold would be returned
when the emergency abated. The difference between borrowing and theft
has a lot to do with whether the perpetrator gives it back. Since banks had
loaned out too much and held too little reserve, people and corporations were
given an equivalent amount of paper currency for gold holdings because of
temporary gold shortage in the banking system. As soon as the gold was
collected, however, the president and Congress passed a joint resolution,
which nullified the promise to repay in gold. Payment was whatever the
government declared was legal.

Seven may be the most egregious spiritually. From the standpoint of
federalism, it was a deep cut by the Supreme Court into what had been the states’
exclusive purview. Engel v. Vitale in 1962 banned prayer from public schools.
In reaching its decision, the Court reinterpreted the First and the Fourteenth
Amendments and changed the federal government’s relationship vis-à-vis
religion. To judge the degree of change, one has to start with the most basic
fact concerning the Bill of Rights. The first ten Amendments called the Bill of
Rights were put there in 1791 entirely to protect the traditional interpretation
of individual rights enjoyed by the people and powers traditionally exercised
by state governments from encroachment by the federal government. Many of
the Founders felt the Bill of Rights superfluous, since the federal government
was never granted authority to alter such rights and powers. Nevertheless, the
Bill of Rights made certain points explicit, for instance the First Amendment’s
“Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof….” The Amendment went into effect at a
time when nine states had established churches and the others had religious
requirements. The 1962 decision usurped the most ancient prerogatives of
states under the Constitution.

Eight is the power to draft. To say there is no constitutional power to
draft runs counter to conservatives’ patriotic instinct, but it gets to the heart
of what constitutes the American republic and citizenry, the relationship
between them, and the extent of power legitimately exercised. One could
argue as William F. Buckley, Jr. did, that if government is entitled to require
the people to complete twelve years of schooling then a year of labor is
perfectly consistent. Why not sixteen years of schooling or twenty? Why not
one year of labor or ten at community service or in the military? In one of
the few instances where a post-Civil War Amendment reinforces Original
Intent for a majority, the Thirteenth Amendment makes plain that, “Neither
slavery nor involuntary servitude, except as a punishment for crime whereof
the party shall have been duly convicted, shall exist within the United States,
or any place subject to their jurisdiction.” The military draft is nothing if
not involuntary servitude. There is no article or section contained in the
Constitution in which it is written that the federal government may take
children away from parents or parents from their children and compel them
to fight the nation’s wars. Even in declared wars and even in cases of invasion,
such as the War of 1812, this was never the case. The Court justified the draft
after World War I according to the post-Civil War Fourteenth Amendment.
Chief Justice Edward White wrote that the people had elevated the significance
of federal citizenship above that of state citizenship and conveyed with it the
power of conscription.

Nine involves abuse of the Commerce Clause. At the Constitutional
Convention, “commerce” meant trade. Foreign trade was distinguished from
trade or commerce among the several states. The Constitution’s Commerce
Clause found in Article I, Section 8, Clause 3 grants Congress the power
to “regulate Commerce [trade] with foreign Nations, and among the several
States, and with the Indian Tribes.” Commerce among the several states
referred to commerce between one state and another, not commerce inside
one state (intrastate). The point of the Clause was quite frankly to keep
one state from setting up and imposing tariffs on goods coming in from
another state. The provision is thus largely responsible for the Constitution
having enabled a giant free-trade zone throughout the United States, i.e., by
preventing states from obstructing the free flow of commerce.
By the 20th century, precedents were compounded and extenuated to such
a degree as to completely undo the distinction between intra and interstate
commerce. Wickard v. Filburn (1942) overlay Gibbons v. Ogden (1824), such
that, now a farmer growing wheat on his own land was subject to federal
regulation, because while it wasn’t interstate commerce it affected interstate
commerce. Given the precedent in Wickard, it was an easy jump in the case
of Gonzales v. Raich (2004) for the Court to say the federal government may
also ban the use of substances grown and consumed inside a single state—
whether or not they are ever bought or sold, and whether or not there is
a market. The reason is that such substance might “leak” into interstate
commerce and affect the overall economy.

Ten is the transformation of the Chief Executive and concomitant abuse
of power in the exercise of foreign policy. Plain statements by proponents
of the Constitution during ratification debates make clear their intent that
treaty power dealt with external matters and not with matters internal to the
states. As if to make the point doubly clear, the Tenth Amendment was added
after ratification, i.e., after the language conveying treaty power, to make sure
the Federal Government got this message: that it may not make treaties with
foreign governments impinging on sovereignty, rights and freedoms inherent
to each state. Congress may not, for instance, give a state’s territory away
to another nation. Congress may not compromise gun rights, speech rights
or freedom of religion in states, as these are not supposed to be subject to
negotiation with foreign governments. The case of State of Missouri v. Holland
(1920) began a radical change to this presumption. Stating a majority opinion
for the Supreme Court, Justice Oliver Wendell Holmes delimited the federal
government’s power to make treaties and said the Tenth Amendment did
not apply. Today the U.S. makes treaties by Executive fiat without so much as
consent of the Senate.

Eleven has to do with presidential war powers and the extant claim the
president has exclusive control over foreign affairs, including the deployment
of troops, without consent of Congress. Presidential war powers have been
hotly contested since Korea, and especially since Vietnam. Objection
centres around the overall level of national effort, including duration and the
nature of the conflict. Vietnam in its day was extremely costly in lives and
money, and indeterminate in scope and time frame. The defensive nature of
the conflict was buried in the strategic context of the Cold War. Likewise,
contemporary conflicts in Afghanistan and Iraq are increasingly viewed this
way, notwithstanding the existential “Global War on Terror”. These wars
are prosecuted at nearly the sole discretion of the President and contrary to
constitutional tradition.

Original Intent was strong in its prejudice towards the Legislative
branch, ie, to the people’s representative body, when it came to committing
the Republic to war. No one wanted kingly powers invested in the president,
such as unilateral power to commit the nation to war. Such power had led
to ruinous results, with which the people of Great Britain and Europe were
familiar. Alexander Hamilton, who advocated a strong executive, nevertheless
conceded that “the Legislature alone [can place] the nation in a state of war”
under the Constitution. John Jay in Federalist No. 4 likewise advocated
the Constitution, in contradistinction to a king’s power to prosecute wars
unchecked. George Washington specifically disclaimed executive authority
to take the country into war, and so confined his operations against the
Indians to defensive measures. When Japan attacked Pearl Harbor in 1941,
the president did not retaliate on his own authority but went to Congress for
a declaration of war. Indeed, until 1950 it was understood that only Congress
could authorize offensive military operations, whereas the president might
take immediate defensive measures only without specific authorization.

Twelfth of our dirty dozen is the use and abuse of executive orders and
signing statements by the president to usurp the powers of Congress and turn
himself into an oracle of law. American presidents tended to be conservative
and cautious men well into the late nineteenth century. George Washington
set the precedent for Chief Executive in many ways, to include his conviction
that the president may not approve or disapprove of various parts of a bill
when it became law. He could not strike portions out of a bill when he signed
it into law; rather, he had to sign and enforce the whole thing or use his veto to
reject the bill in toto. With few exceptions, this was how the Chief Executive
or President continued to approach the office until Theodore Roosevelt.
Abuse of executive orders was steppingstone to abuse of presidential signing
statements, and George W. Bush is to presidential signing statements what
TR was to executive orders. George W. Bush issued hundreds of statements
and, of more significance they contained over 1000 specific exceptions to the
bills he signed. He literally refused to enforce the exceptions, and in hindsight
that’s why George W. Bush used the veto so few times.

The postmortem on the Constitution is incomplete. The American flag has
thirteen stripes, alternating red and white for the thirteen original colonies
and those first states to ratify the Constitution; whereas, the “union” of the
flag is that portion in the upper inner corner that contains a blue background
and constellation of white stars, one star for every state in the Union. Just
as fixed stars in combination make up a constellation in the heavens, states
that ratify the Constitution comprise a political constellation. They are held
together in Union through the aegis of the Constitution. It is the Constitution
that defines their relationship to each other and to the whole. Each star is
an irreducible object, as each state is an irreducible political sovereign.
According to its terms, the Constitution alone defines how the states must
share, divide and mix sovereign prerogatives with the federal government.
If the Constitution is as dead as Woods and Gutzman assert, the Union will
start to unravel – and the suddenly disunited states will inevitably start to
form new and different constellations.

WESLEY ALLEN RIDDLE is a retired military officer and a frequent
contributor to academic journals and newspapers. He may be contacted at

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