The Progressive Era and the New Deal very nearly did away with the constitutional constraints on the national government written into the Commerce Clause in 1789. The ambitious people who hungered for centralized government and the concomitant power, power needed to solve all problems and redress injuries to the body politic, they said, turned the Commerce Clause on its head. It did not constrain federal power, as originally intended by its writers, but it granted that government virtual complete power to regulate American activities in their own States. The post-New Deal Supreme Courts felt the pressure of a new politics in the country; it appeared, at least as reported in the media and opinion-makers of the day, that the citizenry moved toward the Progressives during the Depression. Frightened and needy, reaching for FDR and the leftist ideologues around him, politicians turned away from the conservative and traditional understanding of the Great Republic and clambered onto the FDR bandwagon. So did the judiciary branch. The Supreme Court redefined “commerce” over a decade in a couple of decisions mentioned in last week’s Post --- “commerce” is all human activity; therefore, there is no human activity that the federal government cannot regulate.
What does it mean for you? Across the 19th century, the federal government issued regulations touching 4 percent of the Gross Domestic Production (GDP). In 2010, the federal government regulated 27 percent of the GDP (Reclaiming the Constitution: Towards An Agenda for State Action, by Ted Cruz and Mario Loyola). Our great grandparents had little to do with the national government, living out all civic matters with local and state elected officials. Today’s national government has nearly everything to do with us.
As if the Orwellian re-writing of the Commerce Clause by justices were not enough to mangle federalism, the “general Welfare” term became the Spending Clause in the 1930s and justices elaborated it over following decades, torturing the sentences of the Constitution into contradictory interpretations that propped up the centralizing federal power. The power of the federal government to tax for any reason that Congress thought could be called “public purpose” was elevated in 1936. The first clause of Article I, Section 8 of the Constitution grants Congress “...Power To lay and collect Taxes…and provide for the common Defense and general Welfare of the United States….” James Madison and Alexander Hamilton argued about the meaning of this passage during ratification. Madison thought that the Congress power to tax is limited to some public purpose that falls within one of the other enumerated powers of the federal government. Hamilton thought that the power to tax is an independent power granted to the Congress, and it can be used for any public purpose. In U.S. v. Butler (1936) the Court took Hamilton’s idea, giving him the victory in the debate some 145 years after ratification---for the time being. This decision further expanded the power of the federal government, allowing it to act for the “general Welfare”, at the expense of the States’ sovereignty.
Two years later the Court decided that it is Constitutional to give federal funds to States in order to encourage them to comply with federal policy goals. In Steward Machine Co. v. Davis (1938), the Court decided that it is permissible for “the Social Security Act to impose a tax on certain employers and provide a 90 percent credit if they contributed to their state’s unemployment fund.” (Reclaiming the Constitution:…) The Court said that “encouraging” States with money is not economic coercion; economic coercion is wrong, even in most of today’s political discourse.
Another spending case is South Dakota v. Dole (1987). Because South Dakota refused to raise its drinking age to 21, the federal Department of
Transportation punished South Dakota by withholding five percent of federal highway funds. The Court said that withholding five percent is not enough to be coercion, so a law like this is not bad and it is not unconstitutional.
There are strongly written dissenting opinions in the cases mentioned above and give one some hope for justices to rise to the challenge of acting as a check on the power of Congress and a check on the executive branch; further, it gives one hope that the Court will act as the protector of the Constitution instead of acting as unelected policy/law makers.
Another doctrine called “commandeering” centers on the Tenth Amendment. If Congress passes a law and requires states to implement the law, Congress is commandeering state instrumentalities. Fairly recent decisions give us hope that this commandeering and, perhaps, earlier overreaching actions/doctrines by Congress will be rolled back by a Court that respects the Constitution, including the Tenth Amendment. In New York v. U.S.(1992) and in Printz v. U.S.(1997) the Court found that commandeering is an unconstitutional overreach of the federal government. Justice Scalia wrote the majority opinion in Printz and it is a brilliant bolster of the power of the Tenth Amendment. According to Reclaiming the Constitution:.., Michael Greve argues that Justice Scalia has elevated the Tenth Amendment to “intergovernmental immunity”, a principle located in the “structure” of the Constitution. In his work Real Federalism: Why It Matters, How It Could Happen (1999), Greve writes:
First Justice Scalia explains that the Constitution establishes a System of “dual sovereignty,” wherein the States and the national government occupy separate “spheres.” The Tenth Amendment is only one of the indicia of federalism so understood. Second, Justice Scalia maintains that the congressional commandeering of state and local officers would undermine the federal executive: by dragooning state and local officers into federal law enforcement, Congress could subvert and circumvent the President’s constitutional authority to ensure the faithful execution of the law. Third, Justice Scalia argues that Congress lacked the constitutional authority to enact the background check requirements under, of all things, the Necessary and Proper Clause of the Constitution, which empowers Congress to “make all laws which be necessary and proper” to the enforcement of its delegated powers. A law that presses state and local officers into federal service, Justice Scalia maintains, cannot be “proper.” Each of the three claims points beyond the seemingly limited holding in Printz. Each implies a notion of federalism, not a mere protection of state immunity but as a direct constraint on the federal government.
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By forcing state government to absorb the financial burden of implementing a federal regulatory program, Members of Congress can take credit for “solving” problems without having to ask their constituents to pay for the solutions with higher federal taxes. And even when the States are not forced to absorb the costs of implanting a federal program, they are still put in the position of taking the blame for its burdensomeness and for its defects.
So, the Necessary and Proper Clause of the Constitution, the final clause of Article I, Section 8 of the Constitution, might contribute mightily to the struggle to save federalism. “…a law that upsets the federalist structure of the Constitution by infringing on the ‘quasi-sovereign’ status of States might not be ‘proper.’” (Reclaiming the Constitution:…)
Some of the other infringements on the Tenth Amendment noted by Reclaiming the Constitution… are the horrifying health care legislation, Obamacare , environmental regulations, and conditional federal grants to State treasuries:
· Obamacare, formally entitled The Patient Protection and Affordable Care Act of 2010, is an unconstitutional federal overreach. It violates the Tenth Amendment by mandating the purchase of health insurance by every individual. This is the first time the federal government has forced an individual to buy health insurance---the national government is regulating inactivity under interstate commerce powers. Besides the individual mandate, Obamacare commandeers State agencies and budgets to dramatically expand Medicaid programs. The States have to “establish new health insurance markets to be regulated as utilities for the socialization of health care costs.” (The Patient Protection and Affordable Care Act of 2010)
· The Environmental Protection Agency is frightening in its zeal for righteous, radical environmentalism, it is clearly anti-capitalism and it is a virulent threat to the foundation of this Republic. In the words of Reclaiming…,
“Today, the Environmental Protection Agency and Department of Interior are using regulatory power to invalidate highly successful state programs that are entirely within the law; to accomplish climate-change policies that have been rejected by Congress; to create stifling regulatory uncertainty in those sectors of industry that compete with the goals of radical environmentalists, and to punish States that pursue a free-market, limited-government regulatory model.”
Texas is in the cross-hair, and the Obama branch is going around Congress and the will of the people, absolutely ignoring the Constitution, to destroy the vibrant economy and conservatism that makes Texas exceptionally successful. EPA has chosen to regulate carbon dioxide and other greenhouse gases under the Clean Air Act as pollutants and they are “placing their boots on the neck” of Texas, as Ken Salazar, Sec. of Interior, said they would do to BP last year. The EPA has invalidated legal, operating permit rules for refineries, large manufacturers, and power plants that have functioned and set the best model for clean air in the entire country for 16 years. EPA could not find any transgression of or failure of keeping the air clean in this permit program, but it said the rules are not sufficiently detailed and quashed the system, leaving the large plants in limbo. Their destructive approach to Texas is unconstitutional. Determined to destroy domestic production of fossil fuel, the radical, self-righteous EPA environmentalists are successively initiating ozone standards based on false science that will strip States of authority and block economic growth in counties across the country.
· Jumping onto the BP oil spill that has amounted to very minimal environmental damage, despite the breath-taking hyperbole issued by the White House and disseminated with absolutely no critical analysis by the media of the real effects of the spill, the Dept. of Interior has placed a moratorium on deepwater drilling. With no study on the economic impact of the moratorium(s) and with no basis in the Oil Pollution Act, this administration has issued a moratorium in the face of three federal courts. The courts have said that the moratorium is an illegal “arbitrary and capricious” exercise of regulatory power. Three times this administration has ignored the courts and reissued a moratorium, making cosmetic changes to try to get by with the illegal actions. At least 8,000 jobs are gone because of this and if this administration is not stopped, far more will follow.
· Buying States’ compliance to federal policy priorities is the most effective method for gaining federal government tyranny. “The practice of taxing citizens and returning the money to their States only on condition of state compliance with federal wishes subverts the structure of federalism by coercing States to give up their autonomy, and ignore the will of their citizens, under threat of an increasingly unbearable fiscal and economic penalty. (Reclaiming…)
So, here we are. How have we moved so far away from the intentions, values, beliefs and philosophies of 222 years ago?
The Founders imagined that the Constitution and government in the country would change over time as the country would change, but they did not expect for the principles to be lost. For example, a State might change with time and circumstances, but the authority of the State in federalism could never be ignored. Individual, natural liberties protected by State constitutions and the Bill of Rights would not change, and the State and U.S. constitutions were written, so that the principles remain available to the people and act as guides to the self-governing people.
The Constitution is a negative governing document, carefully limiting and enumerating the powers of governments---local, state and federal. The people created the government in the written Constitution and the people remain in control of the government so created so long as the principles embedded in the Constitution are followed. As someone put it, the point of writing the Constitution was not to keep it in touch with the times but to keep the times in touch with the Constitution.
Unfortunately, that has been painfully ignored by us, the people. The 20th century witnessed the judiciary usurp the power to govern---to legislate, to create policies, to control social relations and economic activities, while enabling the executive branch to arrogate ever more power to itself. We know the Commerce Clause so well by now. A doctrine dubbed “implied preemption” grew up during the second half of the 20th century. It means that unelected federal bureaucrats can and may run over state policies, laws and regulations, just as the EPA is doing, the way Obamacare will, and the way the Interior Dept., HHS, OSHA , SEC and FCC will do by dashing toward getting the damage done before the people stop Obama and the left wing Democrats. Jurists created this doctrine. We have seen the rise of government by judiciary.
The notion that the Constitution is a “living” document is a doctrine. Public schools have been teaching that to high school students for decades, and universities teach that the “living” constitution “adapts” to current, “political needs”, lending the Constitution to interpretation by jurists and politicians as the “political needs” come up. When I studied the history of the Constitution I was directed to look at cases and politics and institutions, not at the principles embedded in the government created by the Constitution. Things change, and in the words of “Progressives”, progress in social science in such things as Marxism, Darwinism and socialism have pushed the old Constitution out of fashion. By the lights of Liberals and Progressives, Conservatives in academia are hopelessly out of touch with today’s sophisticated political class and they are seen as inferior to the more-than-a-little conceited intellectuals in our major universities. The “living” Constitution is destroying the Great Republic, that is, the USA of the 18th, 19th and early part of the 20th centuries. Progressives/Liberals seem to cling to two separate themes in the discourse over the Constitution:
· Chief Justice Charles Evan Hughes said that the Constitution is “what the judges say it is.” Court decisions are the Constitution.
· Their other theme is to comprehend the evolution of the Constitution by knowing the difference between Darwinism and Newtonian physics. They claim that the “real” Constitution is a creature that adapts to changes in its environments (Darwin), not a thing that balances institutions of government (Newton). (Eugene W. Hickok, “Why States? The Challenge of Federalism”, 2007)
If Hughes were correct, the Constitution is what a few judges say, and that is our government.
As provided for in the Constitution, the judges are arbiters of Constitutional disputes, but understandings and the implementation of guiding principles and interpretations of the meanings of passages in the document are commonly carried out by citizens outside of courtrooms as well as by judges on the Bench. John C. Calhoun’s theory of nullification was not heard by a court; it took a civil war to settle the argument about the intergovernmental relations in federalism. Lincoln’s habeas corpus writ (the absence of) decision had nothing to do with the judiciary, and there are many other times when discussing and cussing about the meaning in some Constitutional passage has been in the public square.
Also, if the Constitution were what the judges say, then the judges must be infallible. We do not accept some decision, interpretation and/or declamation from the SCOTUS as if it were the utterance of a Pope speaking ex cathedra. A number of precedents have been proven to be in error by later judges; occasionally, a strong opinion voiced by a large majority of citizens guide the thinking of a sitting Court and precedents are overturned.
The very idea that our Constitution is what the judges say completely ignores the fact that the written Constitution governs the judiciary just as it governs the other two branches. A government by judiciary, making decisions that would “write” a Constitution, then change it, then change it again from the Bench means that we have no written Constitution. The truth, though, is that we do have one, and our elected officials and appointed judges swear to uphold and protect that written Constitution.
Federalism, the core of our Constitution, is seen by these “Progressives” as antique, just as Newtonian physics is antique in their imagined world. These kinds of social scientists, historians and liberal arts profs, lawyers, and the elite chattering class are products of the Ivy League since 1900. While very few of them comprehend Einstein’s Theory of Relativity, they imagine that Newtonian physics is now meaningless and so is our Constitution.
The way to save the Republic rests upon an informed, principled citizenry that values self-governance more than the nanny-state, more than the western European statism or Fabian socialism, more than communism in any of its flavors, such as black liberation theology, Maoism, or Marxism and more than fascism and more than anarchy. Serious polls and studies of Americans’ politics show that 70% prefer self-governance, limited government and free enterprise to the ruling, centralized all-powerful government preferred by around 30% of the country. For more than 150 years from its beginning, the country’s citizens paid attention to politics and governance. That has not been part of our pop culture for at least three current generations. The current Tea Party movement and the elections of November, 2010, gives me hope. We have great resources; we can read, research, analyze, recall and synthesize the true history of this nation, the true effects of a variety of idealogues, their ideals and their ideas, positive and negative, and we must expend the effort that self-government requires. On the internet we can go to the Texas Public Policy Foundation, www.TexasPolicy.com for papers on health care, energy policies, economic theories, federalism, water rights and on and on and on as well as their periodicals and news alerts, both in print and in electronic format. We can go to the Heritage Foundation, www.askheritage.org and have access to a great library for books written for the community educator/learner, as well as DVDs and their periodicals and news alerts, both in print and in electronic format. There are far more. My next posting shall be a bibliography giving a long list of resources, a list that I believe is growing monthly as is the number of outspoken conservatives in academia and in “think tanks”. The number of researchers, teachers and seekers for truth grows monthly. Their work include research articles, essays, books, DVDs and a host of URLs. The Internet is the new Gutenberg of this world. Do not allow the power-lusting egomaniacs in federal agencies squash it.
See you soon,
Pam Fowler
