How Tyranny Came To America[constitutionalism 101--must read] partI

How Tyranny Came To America By Joseph Sobran One of the great goals of education is to initiate the young into the conversation of their ancestors; to enable them to understand the language of that conversation, in all its subtlety, and maybe even, in their maturity, to add to it some wisdom of their own.

The modern American educational system no longer teaches us the political language of our ancestors. In fact our schooling helps widen the gulf of time between our ancestors and ourselves, because much of what we are taught in the name of civics, political science, 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. It’s as if the people of England could no longer understand Shakespeare, or Germans couldn’t comprehend Mozart and Beethoven.

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. 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.

For all that, we no longer fully have what our ancestors, who framed and ratified our Constitution, thought of as freedom — a careful division of power that prevents power from becoming concentrated and unlimited. The word they usually used for concentrated power was consolidated — a rough synonym for fascist. And the words they used for any excessive powers claimed or exercised by the state were usurped and tyrannical. They would consider the modern “liberal” state tyrannical in principle; they would see in it not the opposite of the fascist, communist, and socialist states, but their sister.

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. And the Americans of a much later era — the period from Cleveland to Coolidge, for example — would say we no longer live even under the Constitution they inherited and amended.

I call the present system “Post–Constitutional America.” As I sometimes put it, the U.S. Constitution poses no serious threat to our form of government.

What’s worse is that our constitutional illiteracy cuts us off from our own national heritage. And so our politics degenerates into increasingly bitter and unprincipled quarrels about who is going to bear the burdens of war and welfare.

I don’t want to sound like an oracle on this subject. As a typical victim of modern public education and a disinformed citizen of this media-ridden country, I took a long time — an embarrassingly long time — to learn what I’m passing on. It was like studying geometry in old age, and discovering how simple the basic principles of space really are. It was the old story: In order to learn, first I had to unlearn. Most of what I’d been taught and told about the Constitution was misguided or even false. And I’d never been told some of the most elementary things, which would have saved me a tremendous amount of confusion.

The Constitution does two things. First, it delegates certain enumerated powers to the federal government. Second, it separates those powers among the three branches. Most people understand the secondary principle of the separation of powers. But they don’t grasp the primary idea of delegated and enumerated powers.

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 most of what are now miscalled “civil rights,” or countless public works projects, or equally countless regulations of business, large and small, or the space program, or farm subsidies, or research grants, or subsidies to the arts and humanities, or ... well, you name it, chances are it’s unconstitutional. Even the most cynical opponents of the Constitution would be dumbfounded to learn that the federal government now tells us where we can smoke. We are less free, more heavily taxed, and worse governed than our ancestors under British rule. Sometimes this government makes me wonder: Was George III really all that bad?

Let’s be clear about one thing. Constitutional and unconstitutional aren’t just simple terms of approval and disapproval. A bad law may be perfectly constitutional. A wise and humane law may be unconstitutional. But what is almost certainly bad is a constant disposition to thwart or disregard the Constitution.

It’s not just a matter of what is sometimes called the “original intent” of the authors of the Constitution. What really matters is the common, explicit, unchallenged understanding of the Constitution, on all sides, over several generations. There was no mystery about it.

The logic of the Constitution was so elegantly simple that a foreign observer could explain it to his countrymen in two sentences. Alexis de Tocqueville wrote that “the attributes of the federal government were carefully defined [in the Constitution], and all that was not included among them was declared to remain to the governments of the individual states. Thus the government of the states remained the rule, and that of the federal government the exception.”

The Declaration of Independence, which underlies the Constitution, holds that the rights of the people come from God, and that the powers of the government come from the people. Let me repeat that: According to the Declaration of Independence, the rights of the people come from God, and the powers of the government come from the people. Unless you grasp this basic order of things, you’ll have a hard time understanding the Constitution.

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.” As we’ll see later, these principles are expressed particularly in the Ninth and Tenth Amendments, two crucial but neglected provisions of the Constitution.

Let me say it yet again: The rights of the people come from God. The powers of government come from the people. The American people delegated the specific powers they wanted the federal government to have through the Constitution. And 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, with only the vaguest justifications and on the most slippery pretexts. 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. 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, not even the most fanatical liberal, will admit openly that he doesn’t care what the Constitution says and isn’t going to let it interfere with his agenda. Everyone professes to respect it — even the Supreme Court. That’s the problem. The U.S. Constitution serves the same function as the British royal family: it offers a comforting symbol of tradition and continuity, thereby masking a radical change in the actual system of power.

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,” which sounds like a compliment. They say it has “evolved” in response to “changing circumstances,” etc. 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, sixty years ago, just before the evolutionary process started accelerating with fantastic velocity. 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? Lo, the Interstate Commerce Clause turns out to mean that the big federal programs are constitutional! Do liberals oppose capital punishment? Lo, the ban on “cruel and unusual punishment” turns out to mean that capital punishment is unconstitutional! Do liberals want abortion on demand? Lo, the Ninth and Fourteenth Amendments, plus their emanations and penumbras, turn out to mean that abortion is nothing less than a woman’s constitutional right!

Can all this be blind evolution? If liberals were more religious, they might suspect the hand of Providence behind it! 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. Is it really possible that, as the Supreme Court in effect said, all the abortion laws of all 50 states — no matter how restrictive, no matter how permissive — had always been unconstitutional? Not only that, but no previous Court, no justice on any Court in all our history — not Marshall, not Story, not Taney, not Holmes, not Hughes, not Frankfurter, not even Warren — had ever been recorded as doubting the constitutionality of those laws. Everyone had always taken it for granted that the states had every right to enact them.

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 discernment of a meaning that had eluded all its predecessors, rather than an enactment of the current liberal agenda? Come now.

And notice that the parts of this “living document” don’t develop equally or consistently. The Court has expanded the meaning of some of liberalism’s pet rights, such as freedom of speech, to absurd lengths; but it has neglected or even contracted other rights, such as property rights, which liberalism is hostile to.

In order to appreciate what has happened, you have to stand back from all the details and look at the outline. What follows is a thumbnail history of the Constitution.

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 the Constitution 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. In The Federalist, Hamilton and Madison argued at some length that under the proposed distribution of power the federal government would never be able to “usurp,” as they put it, 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. 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 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. Similar processes were under way in Europe, as small states were consolidated into large ones, setting the stage for the tyrannies and gigantic wars of the twentieth century.

Even so, the three constitutional amendment 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. This was an important new twist in American constitutional law. Hamilton, in arguing for judicial review in Federalist No. 78, had envisioned the Court as a check on Congress, resisting the illicit consolidation or centralization of power. And our civics books still describe the function of checks and balances in terms of the three branches of the federal government mutually controlling each other. But in fact, the Court was now countermanding the state legislatures, where the principle of checks and balances had no meaning, since those state legislatures had no reciprocal control on the Court. This development eventually set the stage for the convulsive Supreme Court rulings of the late twentieth century, from Brown v. Board of Education to Roe v. Wade.

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. 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, and federal loans to college students in the 1960s were absurdly called “defense” loans for the same reason. The Tenth Amendment is a refined taste, but it has always had a few devotees.

But 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, so that they now lost their remaining control over the federal government. 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. The Constitution doesn’t claim to be a “living document.” It is written on paper, not rubber.

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.” That’s laying it on the line!

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,” whose central meaning could be changed, and even reversed, by ingenious interpretation.

Roosevelt’s New Deal brought fascist-style central planning to America — what some call the “mixed economy” but Hilaire Belloc called the Servile State — and his highhanded approach to governance soon led to conflict with the Court, which found several of his chief measures unconstitutional. Early in his second term, as you know, Roosevelt retaliated by trying 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 the Court began seeing things Roosevelt’s way. It voted as he wished; several members obligingly retired; and soon he had appointed a majority of the justices. 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, like the meal left for the jackals by the satisfied lion. 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 did much deeper mischief: it struck at the whole principle of constitutional resistance to federal expansion. Congress didn’t need any constitutional amendment to increase its powers; it could increase its own powers ad hoc, at any time, by simple majority vote.

All this, of course, 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. At the federal level, “checks and balances” has ceased to include judicial review.

This is a startling fact, flying as it does in the face of the familiar conservative complaints about the Court’s “activism.” When it comes to Congress, the Court has been absolutely passive. As if to compensate for its habit of capitulation to Congress, the Court’s post–World War II “activism” has been directed entirely against the states, whose laws it has struck down in areas that used to be considered their settled and exclusive provinces. Time after time, it has found “unconstitutional” laws whose legitimacy had stood unquestioned throughout the history of the Republic.

... Part2---open for comments!

The... original(parts 1 & 2)---with comments/closed for comments!

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There are many historical errors in this piece, but the most serious problem is its lack of perspective. The biggest mistake that can be made by people who want to decentralize decisionmaking in our country is to view the issue as a liberal-conservative debate.

Do you think the USSC should be a a rubber stamp for congress--liberals?

No, I personally do not mind having a Supreme Court that is willing to exercise some judicial review. Personally, I don't have a problem with Marbury v. Madison. However, I am willing to acknowledge that my view in that regard is at odds with many of the Founding Fathers, particularly those among them (like Jefferson) who were concerned about the growth of the central government. They were opposed to providing the Supreme Court with the power to impose upon Congress the Court's interpretation of the Constitution. They were opposed to having an "activist" Supreme Court.

Wouldn't 'activist' mean non-constitutional?

I would call a "non-constitutional" decision of the Supreme Court (to the extent that that is not by definition an internal contradiction) to be an erroneous decision. An "activist" decision is typically a label applied to a decision in which the Supreme Court concludes that a legislative body (state of federal) has exceeded its constitutional powers.

The big lie/change/spin/bias...

Originally liberals were social conservatives who advocated growth and progess mostly technological(knowledge being absolute/unchanging)based on law--reality...the nature of man/govt. does not change.

Atheist secular materialists through evolution removed the foundations...made the absolutes relative and call all technology evolution(science) to substantiate their efforts--claims...social engineering--PC!

Liberals/Evolution BELIEVE they are the conservatives too!

What's left?

The long and the short of it is that there have always been some liberals who wanted the Federal government to be more larger and some liberals who wanted the Federal government to be smaller. And there have always been some conservatives who wanted the Federal government to be more larger and some conservatives who wanted the Federal government to be smaller. It usually depends upon the specific issue. For example, in the area of health care (an area discussed in this article), Medicare and national health care plans are ordinarily thought of as "liberal" ideas. Conservative Republicans typically oppose such programs on the ground that "one size fits all" Federal programs are inappropriate and that the states should be allowed to experiment on their own. However, when the specific issue concerns litigation in the health care arena, it is the liberal Democrats who want to allow each state to make their own laws and it is the conservative Republicans who insist on a "one size fits all" Federal rule.

None of this is really a liberal vs. conservative issue. Each side just chooses which government they want to make the rules after they make a judgment about what rules each of the governments would implement.

"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,” whose central meaning could be changed, and even reversed, by ingenious interpretation."

I believe what the article--essay--constitution is saying...

when the govt becomes the all and all and end to itself---SOCIALISM/ELITES...

we will be w/o rights/property and G-PC will rule and engineer our lives unvoluntarily...

tyranny!

Before I was on the FR I thought Republican 'tyranny' was ok...like the general public---their preference...right vs left!

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