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To: Vicomte13

BINGO! - you are entirely correct Sir!

Only thing I would add is that there has been an amazing encroachment upon the rights of states in the last 60 years. More and more things have become Federal - issues which should properly be the province of the states.


103 posted on 11/10/2004 12:31:49 PM PST by UMFan
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To: UMFan

You: "Only thing I would add is that there has been an amazing encroachment upon the rights of states in the last 60 years. More and more things have become Federal - issues which should properly be the province of the states."

I think that the really devastating Federal encroachment begins not 60 years ago, but 147 years ago, with the disastrous Dred Scott decision by the Supreme Court, and has continued forward to this day by fits and starts, based primarily on 3 additional atrocious decisions by the Court. I have a good mind to start a new thread entitled "The Four Calamitous Decisions That Made Modern America" to lay out the case that it was the Supreme Court, in just four awful decisions, that is chiefly responsible for the Constitutional problems we face.
But I understand that every time someone posts a vanity, a kitten dies, so I will confine myself to remarking here.

You've picked 60 years ago as the point where things went south. That corresponds to 1944 and World War II. I think you really probably mean 70 years ago and the New Deal. But I am going to argue that the New Deal was not the disaster. Rather, the disaster was a Supreme Court decision made 30 years before that, in 1905, that set the country up for a fall and made the New Deal necessary.

First, though, let me list the Four Calamitous Cases:
(1) Dred Scott (1857)
(2) Plessy v. Ferguson (1896)
(3) Lochner (1905), and
(4) Roe v. Wade (1973).

What each of these cases has in common is that the Supreme Court, sua sponte, overrode the democratic will of the People, as expressed through either the Federal or state legislatures or through Constitutional Amendments, and forced a change in the political process itself. By ruling democratically important issues off limits, the Court in all four cases put the lid on a pressure cooker which, when it exploded, did grievous damage.

Let's start with Dred Scott. What did Dred Scott really do? By declaring an owner to have property rights in a slave which the separate states could not divest the owner of by their local laws, the decision effectively ruled the Missouri Compromise of 1830 unconstitutional, and brought on the Civil War as the inevitable result.
Without dwelling endlessly on history, recall that the Missouri Compromise determined that newly formed states in the Western Territories would be free or slave, depending on where they fell relative to a line corresponding to the southern boundary of what became Missouri, but that an exception was made for Missouri, allowing it to come is as as slave state.
Now, a careful political dance was maintained in Congress, with a slave state admitted for every free state, for as long as that was viable. But with the accession of the Western Territories after the Mexican War and the Treaty of Guadelupe-Hidalgo, California came in as a state, and the Southwestern Territories were clearly not suitable for slavery, so the balance began to track off. The issue of slavery and its expansion was delicate, and the slave states were slowly losing their balance in the Senate (it was long ago lost in the House). But this was occurring peacefully, if with tension. The Missouri Compromise showed the degree to which freesoil and slave state Congressmen and politicians of all stripes were willing and able to work out compromises that kept the union together, and which had the effect - which everyone saw - of slowly, slowly changing the government into a freesoil dominated institution. This slow process raised tension, but it was negotiated out. In 1856, the United States was NOT headed for a Civil War.
Then the Supreme Court overruled the Missouri Compromise.
Suddenly, the issue of slavery was thrown back open in EVERY bit of Western Territory. The immediate result was Bleeding Kansas, in 1858, with freesoilers and pro-slavery Americans butchering each other, hardening attitudes, and aiming at fighting it out, on small battlefields, the slave versus free issue. It was against this backdrop of bloodshed, which had NOT been the case before Dred Scott, and which Dred Scott precipitated by overruling 50 years of careful legislative compromise in Congress, that attitudes hardened all around, led to the abolitionist party surging forward as the newly popular Republican Party, and the Civil War.
Had there been no Dred Scott decision, there is no reason to believe that the Missouri Compromise approach would not have continued, with the slave states being limited to the South and gradually, gradually, over the course of time, slavery being pared back and perhaps eliminated through political compromise, perhaps including some sort of federal buyout. Nobody knows, because the democratic, legislative process was utterly short circuited and 50 years of political compromise ignored by the Supreme Court. Dred Scott is the proximate cause of the Civil War. Catastrophic opinion number one.

Catastrophic opinion number 2 was Plessy v. Ferguson, decided in 1896, which said that "Separate but equal" was constitutional. Of course it was NOT constitutional at all! That was the whole POINT of the 13th, 14th and 15th Amendments to the Constitution, adopted by the People in the several States, and the Civil Rights Acts of 1866 and 1873, enacted by Congress. The Civil War having occurred, the People, and Congress, resolved to make a clean break with the past of slavery. They voted to make the anti-slavery and voting rights amendments directly applicable to the STATES. Now, had the Supreme Court done this, or Congress done this, it would have been unconstitutional under the Constitution of 1787. But that's the point: the People, through the States, AMENDED the Constitution so that these race-related issues WOULD BE federal issues. And the Congress passed two comprehensive acts to prevent anything like Jim Crow from growing up. That was the will of the People, and of the States, written into the Constitution and underwritten by Congress after the Civil War.
Until the Supreme Court stepped in with Plessy and effectively ignored all of that. Now, had the Constitution NOT been amended three times by the People and the States after the Civil War, the Supreme Court would have had a point: the Civil Rights Acts of 1866 and 1873 would have been unconstitutional prior to those amendments. But the Constitution in 1896 was not the Constitution if 1787. It was the Constitution of 1787 PLUS THREE POST CIVIL WAR AMENDMENTS. The Supreme Court, arrogantly and with no basis in law, tore those three amendments out of the Constitution, pretended they didn't exist, pretended that they didn't give the Federal government the effective power to prevent segregationist legislation, and read "Separate but Equal" into the Constitution.
Everyone celebrates Brown v. Board of Education in the 1950s as being this great opinion by which the Supreme Court led the way in civil rights in America.
Horse shit.
The People, the States and Congress led the way in Civil Rights by amending the Constitution three times and creating two Civil Rights Acts that made Jim Crow-type laws impossible. It was the Supreme Court, acting alone, that overrode the Congress, and overrode the Constitution itself, to allow Jim Crow. That in Brown v. Board of Education the Supreme Court finally decided to read the 13th, 14th and 15th Amendments back into the Constitution is not to the Court's CREDIT. They SHOULD have done that 60 years before and there wouldn't have BEEN Jim Crow in the first place.
The Supreme Court of the United States, through Plessy, made Southern segregation and Jim Crow possible.
That dark period of our history was the second case of the Supreme Court overriding the will of the People, the States and the Congress.

The third case, Lochner in 1905, caused the New Deal.
Wait! That was FDR!
No. FDR was merely reacting to an impossible economic and political situation created by the Supreme Court in the third catastrophic opinion.
Economic regulation of labor conditions is a matter for state law, right?
For example, the Federal government - according to a strict constructionist - should not be limiting bakers' working hours to 10 hours per day, 6 days per week, but certainly the STATES have the power and the right to set such regulations within their borders if they so choose, right?
Makes sense.
Not according to the Supreme Court.
In 1905, New York passed a law that did that: limited baker's hours to 10 hours a day.
The Supreme Court of the United States intervened, and in the Lochner decision decreed that the right of private contract overrode all federal or state law, and that therefore neither the Federal government NOR the state governments had ANY power to regulate labor relations at all. Neither the feds nor the states could regulate working hours, minimum wage, working conditions - ANYTHING. This was all said by the Supreme Court to be purely a matter of private contract with which NO government in America could "interfere".
Now, a strict constructionist MIGHT argue that this holds true for the FEDERAL government, perhaps under the 9th and 10th Amendments. But by no stretch of the imagination is it possible to read the Constitution and say that the State governments cannot regulate working conditions.
And yet, that is precisely what the Supreme Court did, in Lochner, in 1905.

The result is predictable: employers and management overreached aggressively, provoking a violent labor union organization movement. Conditions spiralled out of hand, and there was no political safety valve at all. As long as times were prosperous, it was possible to overlook all of this. But once the Depression hit, with 25% unemployment, the political pressures built to the exploding point.
Enter FDR and his New Deal. Now, the Supreme Court, relying on Lochner, struck down everything Roosevelt did until he finally threatened to increase the size of the Court to 12 justices and pack it with appointees. In West Coast Hotel (1937), the Supreme Court finally relented and allowed the regulation of working conditions. Of course, by that point FDR had built up a NATIONAL head of steam for his labor policies, and was able to enact them comprehensively across the United States. And from this, many people who dislike government regulation blame the "beginning of the end" on FDR and the New Deal.
But a more discerning look will see that this was not really fair. By 1937, FDR was facing a full-blown economic crisis. The Depression had been grinding on for 8 years. People were literally going without food. The Nazis were moving aggressively in Europe, and Imperial Japan had already invaded China. The US HAD to snap out of the Depression, and relief was needed. Further, politically, things in the United States were moving towards a social explosion likely to result in a very socialistic, or worse, government.
One could argue that, nevertheless, the STATES should have been the ones implementing new labor policies. And maybe that was true. But remember, because of Lochner, from 1905 to 1937 the states were BARRED from passing any meaningful labor regulations. ALL government was held to be unable to do anything regarding the critical jobs and labor issues, thanks to a bad Supreme Court decision 30 years before.
Once that decision was overturned, in 1937, FDR responded to a national emergency by national labor policies long prepared. It is difficult for me to fault him for doing so.
Had the Supreme Court not made its ridiculous and constitutionally unsupportable ruling in Lochner in 1905, during those intervening three decades the states could have developed labor law and regulation, making the New Deal explosion less vital, blunting the drive for massive, sweeping change. Things COULD HAVE BEEN decided politically by the States. Because of the Supreme Court, they had to be decided by the Feds, all at once, in FDR's day. Objectively, I cannot blame FDR for the New Deal. He was the President, and he was reacting to a disaster. Things got that catastrophically bad because of the Supreme Court.

The most recent disastrous Supreme Court decision was Roe v. Wade. Not just because of the 44 million dead babies, but because of the complete lack of Constitutional language on which the Court could hang its decision.
Just as in Lochner, in Plessy and in Dred Scott, a majority of justices of the Supreme Court found no law in the Constitution, and simply made up law to fit their personal opinions. And inflicted the jurisprudential disaster of judicial overreach on the country with which we are still living.
But for Roe, tort reform would be easy: no Court would dream of striking down the legislature's limits. And so on.

So, to return to your original comment after this article-length exploration of the 4 Pathological Cases that created modern America, I don't think the encroachment has really been over 60 years. I think it is identifiable to 4 specific points in time, when the Supreme Court, sua sponte, overran its authority and acted unwisely. And the rest of us have to live with the consequences.
I think it only seems like FDR was responsible for everything. FDR faced a labor situation that SHOULD have been gradually regulated and rectified over thirty years of democratic development at the level of the States. It was the Supreme Court, alone, that stepped in and made that impossible.


105 posted on 11/10/2004 2:05:02 PM PST by Vicomte13 (Auta i Lome!)
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