Thursday, May 15, 2014

Goldwater page 163

 Reply by Mangus Colorado, Moderator on January 1, 2013 at 6:21pm
Delete


WND EXCLUSIVE

SHERIFFS CALLED OUT TO FIGHT THE LAW

Local officers predicted to be key to preventing gun confiscation

Published: 4 hours ago
author-image by MICHAEL CARL Email | Archive
rss feed Subscribe to feed
Michael Carl is a veteran journalist with overseas military experience and experience as a political consultant. He also has two Master's Degrees, is a bi-vocational pastor and lives with his family in the Northeast United States.More ↓

  • Printer Friendly
  • Text smaller
  • Text bigger
Ads by Google
gun4
A high-profile former sheriff who once sued the U.S. government over its gun regulations – and won – says it is the local sheriff who will have to defend Americans when and if the feds start banning and confiscating guns.
Richard Mack, a former sheriff in Graham County, Ariz., joined with then-Ravalli County Sheriff Jay Printz in a lawsuit against Washington when Bill Clinton demanded sheriffs enforce provisions of the Brady Bill gun control law.
Ads by Google
He won. And since then he’s been at the front of a movement that highlights the responsibility of local sheriffs.
Now, as Washington gears up to consider imperious plans to limit guns, require fingerprinting and registration, impose additional taxes and fees, ban particular features or functions outright, and even confiscate weapons of self-defense, Mack has told WND that there’s hope remaining in local law enforcement.
It’s not complicated, he said.
“Gun control is illegal and it’s against the Constitution,” he said. “What people don’t realize is that the Second Amendment was designed to protect us from the power of the federal government.”
He said he would expect sheriffs across the country to defend the rights of ordinary Americans.
“I hope and pray America’s sheriffs won’t allow any more gun control,” Mack said. “The sheriffs need to be united in letting the federal government know that we’re not going to allow it.
“In the ’90s when I was the sheriff of Graham County, Ariz., we worked with other sheriffs and stopped two or three Brady Bills,” he recalled, a fight that he’s been detailing in seminars with sheriffs.
He said the office is critical, as it’s not only in law enforcement, but also is elected directly by the people.
“Out of 200 sheriffs with whom I’ve met, I’ve only had one give me a wishy-washy answer. That one said he would try to take the federal government to court,” Mack said. “Most of them have said they would lay down their lives first rather than allow any more federal control. They also said they would do everything they could to stop gun control and gun confiscation.”
Alan Stang at News With Views wrote about another battle Mack encountered while sheriff. A bridge had washed out and parents were driving children 26 miles to school, which physically was located only half a mile across a river.
The county decided the fix the bridge and the U.S. Army Corps of Engineers warned that an environmental study alone would take 10 years. Mack promised to provide protection for the workers, and said he’d call out a posse if needed.
The bridge was built.
Stang wrote about other close encounter between sheriffs and the feds:
“In 1997, in Nye County, Nevada, federal agents arrived to seize cattle that belonged to rancher Wayne Hage. The sheriff gave them a choice: skedaddle or be arrested. They skedaddled. … In Idaho, a 74-year-old rancher shot an endangered gray wolf which had killed one of his calves. The U.S. Fish and Wildlife Service sent three armed agents to serve a warrant. Lemhi County Sheriff Brett Barslou said that was ‘inappropriate, heavy-handed and dangerously close to excessive force.’ More than 500 people turned out for a rally in the small towns of Challis and Salmon to support the sheriff and the rancher and to tell the federal government to back off.”
Mack, who’s written “The Magic of Gun Control,” said if there is an actual specific plan to start taking Americans’ weapons, he expects a response.
“If the federal government wants to start a new Civil War, all they need to do is go ahead with gun confiscation,” Mack said.
Just a day earlier, WND reported that Firearms Coalition Executive Director Jeff Knox said Second Amendment supporters aren’t planning negotiations with Obama over gun control.
“We are not going to back down. We are not going to give in. And we are not going to concede one more inch,” Knox said.
He was responding to questions about America’s response to plans like those from Sen. Dianne Feinstein, D-Calif., to demand gun registration, bans and fingerprinting in the wake of the Sandy Hook school shooting in Connecticut.
“Unfortunately, the president and other anti-rights politicians are not doing anything to keep what happened at Sandy Hook Elementary from happening again,” he said. “Instead they are going after law-abiding gun owners and targeting commonly owned firearms and ammunition feeding devices. Their proposed restrictions on these items would have had no impact on what happened at Sandy Hook, and, if passed, would not stop the next craven murderer from wreaking just as much havoc and destruction.”
Gun Owners of America Executive Director Larry Pratt shared Mack’s opinion.
“The county sheriffs need to act and make new deputies to stop federal authority in the counties,” Pratt told WND. “This is a defensible idea. He can deputize people to serve since they are the ones who voted for him to represent them. A lot of citizens would stand up for their Second Amendment rights if they were protected by the sheriff.”
He cited a move that already is surging among states to adopt laws and use the Tenth Amendment to curb federal activity. The Tenth Amendment simply reserves to the states and the people all responsibilities not specifically assigned to Washington in the Constitution.
Pratt noted the move that over the past few years has seen eight states adopt laws that exempt firearms made, sold and kept in the state from federal oversight. The federal government has taken the issue to court, where it remains at this point.
“A number of states are passing laws that use the Tenth Amendment to curb federal control. Their law says that if a gun is made in the state and sold in the state, that the federal government has no control over it,” Pratt said.
He provided additional examples of what already has resulted from sheriffs’ disputes with the feds.
“In Elkhart County, Indiana, there was a farmer who produced raw milk. The Department of Justice was investigating the farmer and was trying to shut down the farm,” Pratt said. “Elkhart County Sheriff Brad Rogers defended the farmer by saying that without a warrant signed by a ju...
“Rogers said that if they didn’t leave, he would arrest them. The DoJ threatened to arrest him, but Rogers sent his deputies to defend the farmer,” Pratt said. “The feds have had to back off.”
He also said local officials in New Mexico burned trees from a small parcel of federal land in order to halt a raging forest fire.
“The sheriff is the chief officer in the county even on federal land if the land is in the county,” Pratt said.
But Washington is not idle. Barack Obama says he will put the weight of his office behind gun control and Feinstein even has proposed a federal gun buyback program that has been endorsed by about 40 members of Congress.
Feinstein’s dedication to eliminating the Second Amendment is unquestioned.
The California Democrat was one of sponsors of the so-called “Brady Bill,” the 1995 “assault weapons” ban. Faced with the limitations placed in the version that was making its way through Congress, Feinstein said that, “If I could have gotten 51 votes in the Senate of the Un...
Mack, who is also the founder of the Constitutional Sheriffs and Peace Officers Association, said Feinstein is a “polimagician,” a political leader who believes his or her policies will work magic for their constituents.
“They think they’re special and better than everyone else. Feinstein’s [own] concealed carry permit is the product of this elitist attitude,” Mack said. He said Congress and Obama simply are loading their political agenda onto the backs of the victims of Sandy hook.
He said gun control through history produces one result: “Genocide.”
Pratt warned that Washington’s strategy will accomplish nothing but creating vast new ranks of felons in America.
“A lot of Americans spend an awful lot of money on these guns. I don’t think there will be very many who will willingly accept $200 for a gun that they paid $500 to $1,000 for,” Pratt said.
The last two major gun rights cases that went before the U.S. Supreme Court were decided in favor of gun rights, and as a followup the Second Amendment Foundation has been taking on local and state restrictions.
Recently, a federal judge struck down a North Carolina provision that authorizes a ban on firearms and ammunition outside homes during “a declared emergency,” determining that violates the Second Amendment.
WND reported earlier when residents of King, N.C., were startled by the banishment of firearms during a “declared snow emergency.”
Judge Malcolm J. Howard wrote, “…the court finds that the statutes at issue here are subject to strict scrutiny …While the bans imposed pursuant to these statutes may be limited in duration, it cannot be overlooked that the statutes strip peaceable, law abiding citizens of the right to arm themselves in defense of hearth and home, striking at the very core of the Second Amendment.”
“When SAF attorney Alan Gura won the Heller case at the Supreme Court,” noted SAF Executive Vice President Alan M. Gottlieb, “the gun ban crowd said that we were a ‘one-trick-pony’ and that we would never knock out another gun law. Well, SAF has now knocked out gun laws in Maryland, Illinois and North Carolina.”
Permalink Reply by Mangus Colorado, Moderator on January 2, 2013 at 10:54am
Delete
Notice the comma after respectively.    to the States respectively, ( COMMA )  OR    to the People.    The States are not entities unto themselves - they are inanimate objects.  The citizens of the respective States are the State.   The People,  as used in the Title of our Nation - The United States of America,  is a singular Pronoun.  It is not the United States of the Americas.  The Jeffersonian patriots squawked mightily when this language was used before the ratification and warned of the implications.  Just as today,  the federalists were in the majorty,  and as even Jefferson said,  the majority decision must rule.  Your premise would wipe out every case ever tried,  and then try every single case based on the framework written in 1787. 
You never answer my questions - where does it say there should be six Jurists sitting on the first Supreme Court ?   Where does the Constitution say the power comes from to make that decision ?   That power is implied,  not specifically written,  just as is the majority of the fine print we live by.   Who decides all he rules the Senate,  House and The Presidency must abide by ?  I see no such words written.  What are all the powers given to the Congress ?  Specifically,  it would take volumes of texts to copy all of them.  The Constitution is only 27 pages long,  double spaced in many cases.  I see no specifics whatsoever - only a syllabus. 
" THE CONSTITUTION "  PLEDGED GEORGE WASHINGTON,  " IS A GUIDE WHICH I WILL NEVER ABANDON. "
   " The Constiution delineated the structure of goverrnment and the rules for it's operation,  consistant with the creed of human liberty. "    Edwin Meese III - executive editor of the Heritage Foundation.    DELINEATE - origin - Latin delineare " TO OUTLINE "
     " Fundamental rights exist by nature,  prior to government and conventional laws "  I see no natural laws written specifically,  as brought from the top of the mount by the Framers.
      The Federalist 51 - Madison,  " In framing a government which is to be administered by men over men,  the great difficulty lies in this:  You must first enable the government to controul the governed;  and in the next place oblige it to controul itself.  A dependence on the people is,  no doubt,  the primary controul on the governance;  but experience has taught mankind necessity of auxillary precautions. "
        " THE CONSTITUTION IS OUR MOST FUNDAMENTAL LAW.  IT IS,  IN IT'S OWN WORDS,  THE LAW OF THE LAND.  IT'S TRANSLATION INTO THE LEGAL RULES UNDER WHICH WE LIVE OCCURS THROUGH THE ACTIONS OF ALL GOVERNMENT ENTITIES,  FEDERAL AND STATE.  TH ENTITY WE KNOW AS " CONSTITUTIONAL LAW " IS THE CREATION NOT ONLY OF THE DECISIONS OF THE SUPREME COURT,  BUT ALSO OF THE VARIOUS CONGRESSES AND OF THE PRESIDENT. "  Charles Warren,  " The Supreme Court in the United States History ( 1922)   -   The Heritage Guide to the Constitution  (pg 5)
  ( Cont. )  YET IT IS THE COURT SYSTEM,  PARTICULARLY THE DECISIONS OF THE SUPREME COURT,  THAT MOST OBSERVERS IDENTIFY AS PROVIDING THE BASIC CORPUS OF " CONSTITUTIONAL LAW ".  THIS BODY OF LAW,  THIS JUDICIAL HANDIWORK,  IS,  IN A FUNDAMENTAL WAY,  UNIQUE IN OUR SCHEME,  FOR THE COURT IS CHARGED ROUTINELY,  DAY IN AND DAY OUT,  WITH THE AWESOME TASK OF ADDRESSING SOME OF THE MOST BASIC AND MOST ENDURING POLITICAL QUESTIONS THAT FACE OUR NATION.  THE ANSWERS THE COURT GIVES ARE VERY IMPORTANT TO THE STABILITY OF THE LAW SO NECESSARY FOR GOOD GOVERNMENT.  "
     What we have seen here recently is a complete misunderstanding of the difference between the definitions of the Constitution,  and Constitutional law.   We are a nation of laws,   not people - Washington
     It is this difference I have tried in vain to impart on an individual.  I could give a tome the size of the " Rise and Fall of the Roman Empire ",  just in examples of the most important names in our political history,  all mentioning this Constitution is a framework,  a building block to hold all future acts of Congress and legal decisions made in the Supreme Court and other Courts,  as well as Presidential decrees.  One will never hear a Supreme Court hearing without mention of several precedent cases concerning decisions made from cases of a like nature.  Yet we are to beleve this one man alone knows everyone has been wrong for 224 years.  Where indeed is there wrtten who has the power to author the Judicial Act of 1789 ?   Did it simply,  by Divine intervention,   appear on Washington's desk to sign it into law ?  Did those three ambiguous clauses in section 25 just appear in the endnotes of a loose parchment ?  Why does the term " Implied Powers " appear so frequently in these judicial decisions ? 
   I will repeat the list of criteria the Heritage Foundation legal team uses to decypher as best they can,  the original intent of the words written in 1787.
1.   The evident meaning of the words.
2.   The meaning according to the lexicon of the times.
3.   The meaning in context with other sections of the Constitution
4.   The meaning according to the words by the Framers suggesting the language.
5.   The elucidation of the meaning by debate within the Constitutional Convention.
6.   The historical provinance of the words,   particularly their legal history.
7.   The words in the context of the contemporaneous social,  economic,  and political events.
8.   The words in the context of the revolutionary struggle.
9.   The words in the context of the political philosophy shared by the Founding generation,  or by the particular interlocutors at the Convention.
10.  Historical,  religious  and philisophical authority put forward by the framers.
11.  The commentary in the ratification debates.
12.  The commentary by contemporaneous interpreters,  such as Publius in the Federalists.
13.  The subsequent historical practice by the Founding generationto exemplify the understood meaning.
14.  Early Judicial Interpretations.
15.  Evidence of long standing traditions that demonstrate the people's understanding of the words.
      All of the above and more go into the effort of the greatest conservative minds in America today.  They are and have been the leading advocate of conservatism as a constitutional constructionalist looks at our Constitution and original intent.   The previous quotes and short definitions all come from the Heritage Guide to the Constitution.   If one individual here is smarter than these men,  then he should stop using them as his links for truth.
    
I will say this once more only - it would be impossible to try each case as a totally new event.  We would know who has the power,  but not how,  when,  or where of any of the details of each case.  The thought that there is no appeals process accessable to every citizen or visitor to this nation is repugnant and as unamerican as it gets.
I have given my reasons.  They are not opinion,  they are accepted facts.  If you so choose to be smarter than every other person in the legal profession,  there is nothing else I can say.
Permalink Reply by Mangus Colorado, Moderator on January 2, 2013 at 11:09am
Delete
JT,
I do not pretend to be smarter than anyone - but I can read and comprehend the meaning of the words. Your entire post again is backed only by OPINIONS used to modify or redirect the conversation from the actual ORIGINAL CONSTITUTION - yes it can be changed altered as the PEOPLE through their Representative Republics that you refer to as STATES. These states are separate free standing Republics as called for in the Constitution in this part - [Emphasis below is mine]

Article 4 - The States
Section 1 - Each State to Honor all Others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Article 4 - The States
Section 2 - State Citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State havingJurisdiction of the Crime.
(No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.) (This clause in parentheses is superseded by the 13th Amendment.)

Article 4 - The States
Section 3 - New States

New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within theJurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.
The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Article 4 - The States
Section 4 - Republican Government

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) againstdomestic Violence.

Article 3 - The Judicial Branch
Section 1 - Judicial Powers

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during goodBehavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

Article 3 - The Judicial Branch
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials

(The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.) (This section in parentheses is modified by the 11th Amendment.)
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellateJurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
The above is the actual Constitutional  law regarding the States and the courts of the Article III Federal government - These are the basis of our RULE - BY - LAW system and can not be violated or modified except as allowed in the Constitution - Not one single mention of Case Law Precedent use. Heritage is a good research group but the list you posted above are PURE OPINION after number 4 - item 6 through 15 have no roots in the Actual Constitution not do they even pretend they are included.
Quotes from Washington, The Federalists papers, Madison, letters or notes from the Conventions are just not applicable when reading the actual words of the SIMPLE CONSTRUCTED CONSTITUTION. Past statements by Supreme court Justices and even the fully assembled Court rather it be 5 - 6 - 7 or 9 Justice - which there is not doubt the Congress has the ability in the above parts of the Constitution to change the number of Justices just as FDR threatened to do in 1937+-. Yes the Congress can change form and structure of the court but not POWERS DELINEATED WITHOUT AMENDMENT.
John, I am not trying to be argumentative but yes I am making a legal style argument to defend the sanctity of the Compact called the CONSTITUTION -  I will agree that from the very start the three branches have usurped and have given each other posers that they did not posses individually or collectively. 
This is exactly why I back the repeal of the 14th, 16th, and 17th amendments - the current paradigm is operating without CONSTITUTIONAL authority and they do not even offer any actual language from the Constitution to justify their decisions - it has become Case Law and papers and documents outside the Actual factual language. As, I have continued to point out Ed Meese is not nor has he ever been a Originalist.
As Warren said in your post -
  " THE CONSTITUTION IS OUR MOST FUNDAMENTAL LAW.  IT IS,  IN IT'S OWN WORDS,  THE LAW OF THE LAND.  IT'S TRANSLATION INTO THE LEGAL RULES UNDER WHICH WE LIVE OCCURS THROUGH THE ACTIONS OF ALL GOVERNMENT ENTITIES,  FEDERAL AND STATE.  TH ENTITY WE KNOW AS " CONSTITUTIONAL LAW " IS THE CREATION NOT ONLY OF THE DECISIONS OF THE SUPREME COURT,  BUT ALSO OF THE VARIOUS CONGRESSES AND OF THE PRESIDENT. "  Charles Warren,  " The Supreme Court in the United States History ( 1922)   -   The Heritage Guide to the Constitution  (pg 5)

DO YOU AGREE WITH HIS STATEMENT?

Permalink Reply by Mangus Colorado, Moderator on January 2, 2013 at 12:06pm
Delete

posted on January 2, 2013 by Gary DeMar Filed Under Constitution, First Amendment, Morality, Politics, Second Amendment, Taxes

Does Congress Have the Authority to Tax Americans At Different Rates?

0

The 16th Amendment gave the Federal Government the authority and power to tax every citizen. Here’s the wording of the Amendment:
“The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”
Please note that there is no provision in this amendment that Congress is given the right to unequally apply this power. In looking over all the Constitution’s amendments, I don’t see an unequal distribution of either a freedom or limitation.
Equality under the law requires that as each of us stands before the courts or the Constitution, no one should be treated in an unequal way. The law applies to every citizen equally, except, it seems, when it comes to apply the 16th Amendment.
Does the First Amendment parcel out its freedoms in percentages? Doesn’t every person have the same right to speak, write, and assemble? Rich people and poor people have the same percentage of these rights — 100 percent. The same is true of religion. In constitutional terms, all religions are to be treated equally.
The same is true of the Second Amendment. Everybody has a right to “keep and bear arms” at the same rate. Rich people and poor people have a right to purchase as many guns as they want. Because the rich can afford more guns does not mean that they have to pay more for those guns.
The quartering of troops is similarly equal in the distribution that “No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” No one could argue that because rich people have larger houses that they should be required to open their house to soldiers.
The same is true about the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. Read them over and try to apply the percentage differences to them like Congress and the President do with the 16th Amendment.
The 8th Amendment might apply in the case of increased percentages in taxation because the practice could be considered to be “cruel and unusual punishment.” Liberals regard taxation at ever higher rates as punitive. High taxes are designed to punish the rich. Sen. Rand Paul notes the law of diminishing returns on raising taxes. Taxation is not about increased revenue:
“You may not get any more revenue. You may not get any more economic growth. But you can say, ‘I stuck it to the rich people.’”
A progressive income tax is “cruel and unusual punishment.”
The 14th Amendment could also apply. No State “shall . . . deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” “Equal protection.” Our government is not permitted to treat people in an unequal manner. In Plessy v. Ferguson (1896), Justice John Marshall Harlan argued the following in his “Great Dissent”:
“[I]n view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
The rich are considered a “class” in American politics. We speak of “class warfare” on a regular basis. Why are the rich classes treated unequally when it comes to legislative law? The taxation of income at unequal levels deprives people of liberty and property.
All we need now is some lawyer or group of lawyers to make this point in the courts. We need to have the same fortitude as those who have worked for decades to overturn capital punishment.
GoodBusiness • a few seconds ago

Great question let me provide you with the Constitutional paradox - variable rate income tax using the 16th amendment to apply is wrong and as you point out UNAUTHORIZED in any of the equal treatment requirements of the RULE - BY - LAW.
Here is the proof you are correct:
Amendment 5 - Trial and Punishment, Compensation for Takings
back contents="" next="" of="" table="" |="">>
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in anycriminal case to be a witness against himself,
[nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.]
The "TAKING CLAUSE" say if they take my property and money is property and so is income, profit or gains for work/investments - The government can not redistribute wealth as the TAKING CLAUSE says - the current taxing system is therefore UNCONSTITUTIONAL.
I have for 40 years made this argument and not one single Lawyer, Judge or Politician will address the conflict. They invent all kinds of excuses like income is not property?</back>
Permalink Reply by Mangus Colorado, Moderator on January 2, 2013 at 1:00pm
Delete
Permalink Reply by Mangus Colorado, Moderator on January 3, 2013 at 11:07am
Delete
The Courts have been cooped since Marbury V. Madison and then McCullough V. Marland - they have been of no use since then. Just look at the ACA and the Roberts new Taxing authority - no Article I section 8 enumerated power to permit the tax.
I have studied case law and the theory thereof since University in the 60s - IMO it is all for not as the entire system is corrupt and biased by Precedent. There is also no real support in the Constitution for the concept of checks and balances. I have ask all lawyers and Judges to provide some language in the constitution that would support that theory - not one has ever found any words except in letters, papers, act of legislatures, DOI, State resolutions, court cases, Locke theory, Parliamentary forms, and all such waste of words for they are all just a smoke screen to protect usurped powers.
Permalink Reply by Mangus Colorado, Moderator on January 3, 2013 at 4:20pm
Delete

Let’s Abandon the Constitution, Says Professor

Bookmark and Share
Posted by Thomas Woods
constitution_redacted1No, not because it cedes too much power to the federal government. Surely that opinion would not be allowed in the New York Times.
Anticipating objections, I agree with the Spoonerite criticism of the Constitution, but in what follows I am acting as a historian and a logician evaluating claims.
“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago…. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
The issue is not what Madison would have wanted. The point is that republican government is premised on the idea of consent. The people consented to the interpretation of the Constitution that was presented to them in the ratifying conventions. If in the interim no formal change in the Constitution has been forthcoming from the people, then the understanding that was presented at the ratifying conventions must be presumed to stand. Otherwise, professors at Georgetown University could impose their own preferences on the public instead.
As even Alexander Hamilton put it, “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
Back to Seidman:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
So two wrongs make a right?
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.
But because there was a First Amendment (and a Tenth Amendment; you didn’t expect Seidman to mention that it was also on Tenth Amendment grounds that dissidents objected to the Alien and Sedition Acts, did you?), it was easier to criticize Adams. The government isn’t even following its own rules, people could say.
Thomas Jefferson thought every constitution should expire after a single generation.
Not true. He mentioned an idea similar to this exactly one time, and then, when its logical problems and impracticalities were described to him, never brought it up again.
He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
In this he was virtually alone among his party, members of whom assured him that the treaty power included the power to purchase additional territory.
Seidman then lists a bunch of examples of presidents who disobeyed the Constitution. This is supposed to amount to an argument for doing so now. Couldn’t it just as easily be an argument for deciding, once and for all, to abide by the principles of republican government and actually obey the Constitution? Surely we wouldn’t say that the Soviet Union’s long list of atrocities became more legitimate over time because of customary practice.
The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled.
They cannot be reconciled. That is true. Could one of them be right and the other wrong? This possibility Seidman does not consider. In which of the ratifying conventions were the people told that they would be governed by judges’ subjective decisions as to how the Constitution ought to be adapted to “modern demands”? Nowhere. Therefore, this theory is at odds with republican government, and thus the existence of competing theories does not mean that application of constitutional principles to current issues is a hopeless task. It means some people are right and others wrong, as in any other field of endeavor.
Note, too, how Seidman describes originalism with the word “divining,” as if in order to figure out that most decisions were intended to be left to the states we would need tea leaves, Tarot cards, or sheep entrails.
Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
One might cite the incarceration of the Japanese, the sedition decisions after World War I, and other obvious cases, or even the civil-liberties problems of today, but “helped us to grow and prosper”? FDR, who scarcely even pretended to follow the Constitution, gave us the slowest recovery from a depression in U.S. history. The post-Civil War growth in the U.S. economy was the most robust ever, and most Americans can barely name two of the presidents from that period.

Get the New Documentary Today!
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
So it would be better not to have written rules for government in these cases, and just rely on our wise leaders’ good judgment? If we’re going to have a federal government, I’d rather have explicit rules governing its behavior, since when it violates those rules an important pedagogical moment presents itself to us: see, the thing won’t even obey its own rules. What does that tell you about this institution?
The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.
Seidman has been a constitutional law professor for 40 years (which explains a lot), and he actually thinks the issue of presidential war powers is debatable, or that it’s the Constitution that is causing our problems when the president asserts robust powers over foreign policy. He is saying that if only we could get the Constitution behind us, we could have a discussion about this issue. To the contrary, it is the Constitution and the whole testimony of American history through the mid-20th century that stand against the president. See my treatment of presidential war powers.
OK, that’s all I can do.
Thomas E. Woods, Jr. [send him mail; visit his website], a senior fellow of the Ludwig von Mises Institute, is the author of eleven books, most recently Rollback: Repealing Big Government Before the Coming Fiscal Collapse and Nullification: How to Resist Federal Tyranny in the 21st Century, as well as the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the... and The Politically Incorrect Guide to American History. He is also the editor of five other books, including the just-released Back on the Road to Serfdom.
Permalink Reply by Mangus Colorado, Moderator on January 5, 2013 at 11:07am
Delete

Let’s Abandon the Constitution, Says Professor

Bookmark and Share
Posted by Thomas Woods
constitution_redacted1No, not because it cedes too much power to the federal government. Surely that opinion would not be allowed in the New York Times.
Anticipating objections, I agree with the Spoonerite criticism of the Constitution, but in what follows I am acting as a historian and a logician evaluating claims.
“Our obsession with the Constitution has saddled us with a dysfunctional political system, kept us from debating the merits of divisive issues and inflamed our public discourse. Instead of arguing about what is to be done, we argue about what James Madison might have wanted done 225 years ago…. Imagine that after careful study a government official — say, the president or one of the party leaders in Congress — reaches a considered judgment that a particular course of action is best for the country. Suddenly, someone bursts into the room with new information: a group of white propertied men who have been dead for two centuries, knew nothing of our present situation, acted illegally under existing law and thought it was fine to own slaves might have disagreed with this course of action. Is it even remotely rational that the official should change his or her mind because of this divination?
The issue is not what Madison would have wanted. The point is that republican government is premised on the idea of consent. The people consented to the interpretation of the Constitution that was presented to them in the ratifying conventions. If in the interim no formal change in the Constitution has been forthcoming from the people, then the understanding that was presented at the ratifying conventions must be presumed to stand. Otherwise, professors at Georgetown University could impose their own preferences on the public instead.
As even Alexander Hamilton put it, “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
Back to Seidman:
Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience.
So two wrongs make a right?
No sooner was the Constitution in place than our leaders began ignoring it. John Adams supported the Alien and Sedition Acts, which violated the First Amendment’s guarantee of freedom of speech.
But because there was a First Amendment (and a Tenth Amendment; you didn’t expect Seidman to mention that it was also on Tenth Amendment grounds that dissidents objected to the Alien and Sedition Acts, did you?), it was easier to criticize Adams. The government isn’t even following its own rules, people could say.
Thomas Jefferson thought every constitution should expire after a single generation.
Not true. He mentioned an idea similar to this exactly one time, and then, when its logical problems and impracticalities were described to him, never brought it up again.
He believed the most consequential act of his presidency — the purchase of the Louisiana Territory — exceeded his constitutional powers.
In this he was virtually alone among his party, members of whom assured him that the treaty power included the power to purchase additional territory.
Seidman then lists a bunch of examples of presidents who disobeyed the Constitution. This is supposed to amount to an argument for doing so now. Couldn’t it just as easily be an argument for deciding, once and for all, to abide by the principles of republican government and actually obey the Constitution? Surely we wouldn’t say that the Soviet Union’s long list of atrocities became more legitimate over time because of customary practice.
The fact that dissenting justices regularly, publicly and vociferously assert that their colleagues have ignored the Constitution — in landmark cases from Miranda v. Arizona to Roe v. Wade to Romer v. Evans to Bush v. Gore — should give us pause. The two main rival interpretive methods, “originalism” (divining the framers’ intent) and “living constitutionalism” (reinterpreting the text in light of modern demands), cannot be reconciled.
They cannot be reconciled. That is true. Could one of them be right and the other wrong? This possibility Seidman does not consider. In which of the ratifying conventions were the people told that they would be governed by judges’ subjective decisions as to how the Constitution ought to be adapted to “modern demands”? Nowhere. Therefore, this theory is at odds with republican government, and thus the existence of competing theories does not mean that application of constitutional principles to current issues is a hopeless task. It means some people are right and others wrong, as in any other field of endeavor.
Note, too, how Seidman describes originalism with the word “divining,” as if in order to figure out that most decisions were intended to be left to the states we would need tea leaves, Tarot cards, or sheep entrails.
Our sometimes flagrant disregard of the Constitution has not produced chaos or totalitarianism; on the contrary, it has helped us to grow and prosper.
One might cite the incarceration of the Japanese, the sedition decisions after World War I, and other obvious cases, or even the civil-liberties problems of today, but “helped us to grow and prosper”? FDR, who scarcely even pretended to follow the Constitution, gave us the slowest recovery from a depression in U.S. history. The post-Civil War growth in the U.S. economy was the most robust ever, and most Americans can barely name two of the presidents from that period.

Get the New Documentary Today!
This is not to say that we should disobey all constitutional commands. Freedom of speech and religion, equal protection of the laws and protections against governmental deprivation of life, liberty or property are important, whether or not they are in the Constitution. We should continue to follow those requirements out of respect, not obligation.
So it would be better not to have written rules for government in these cases, and just rely on our wise leaders’ good judgment? If we’re going to have a federal government, I’d rather have explicit rules governing its behavior, since when it violates those rules an important pedagogical moment presents itself to us: see, the thing won’t even obey its own rules. What does that tell you about this institution?
The president would have to justify military action against Iran solely on the merits, without shutting down the debate with a claim of unchallengeable constitutional power as commander in chief.
Seidman has been a constitutional law professor for 40 years (which explains a lot), and he actually thinks the issue of presidential war powers is debatable, or that it’s the Constitution that is causing our problems when the president asserts robust powers over foreign policy. He is saying that if only we could get the Constitution behind us, we could have a discussion about this issue. To the contrary, it is the Constitution and the whole testimony of American history through the mid-20th century that stand against the president. See my treatment of presidential war powers.
OK, that’s all I can do.
Thomas E. Woods, Jr. [send him mail; visit his website], a senior fellow of the Ludwig von Mises Institute, is the author of eleven books, most recently Rollback: Repealing Big Government Before the Coming Fiscal Collapse and Nullification: How to Resist Federal Tyranny in the 21st Century, as well as the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the... and The Politically Incorrect Guide to American History. He is also the editor of five other books, including the just-released Back on the Road to Serfdom.
Permalink Reply by Mangus Colorado, Moderator on January 5, 2013 at 11:07am
Delete
The Founders were well endowed with rational thought and reasoning, which enhanced their judgment in the practical operation of governing and stabilizing the populous. You and I and other believers in the greatness of this country are desperately searching for solution to the grave danger our country is facing. We are trying to read between the lines, hoping to find some different wording that might lead us to a different conclusion, of our likings. Even if we are questionably able to justify our conclusions, what stops the future generations from justifying a different conclusion? Article 5 was debated and voted on and debated and voted on, until it was ratified.
My goal is to justify in my mind the final conclusion that the Founders and Ratifiers, justified in theirs, when they place their signatures on those covenants of the whole. If I am just in my reasons, others will follow and in turn their echoes will summons a majority that will carry the Founders words for another 200 years.

The further we move forward from the past the more obscure the past becomes. We must re-enforce their words.

Here are some words from the past, straight from the horse’s mouth, so to speak.


Article 5th. It was moved to amend the article so as to require a convention on application oftwo thirds of the states; which passed in the affirmative.
It was moved and seconded to amend article 5th, so as to require a convention on the application of two thirds of the states. Passed in the affirmative.
Yeas: Connecticut, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, 8. Nays: New Hampshire, Massachusetts, New Jersey, 3.


Mr. Sherman expressed his fears that three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate. He thought it reasonable that the proviso in favor of the States importing slaves should be extended so as to provide that no State should be affected in its internal police, or deprived of its equality in the Senate.
Col: Mason thought the plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive, as he verily believed would be the case.8
[Note 8: 8 In the margin of his copy of the draft of September 12, Mason had written:
"Article 5th --By this article Congress only have the power of proposing amendments at any future time to this constitution and should it prove ever so oppressive, the whole people of America can't make, or even propose alterations to it; a doctrine utterly subversive of the fundamental principles of the rights and liberties of the people."
See also Appendix A, CCLXIX.]
Mr. Govr. Morris & Mr. Gerry moved to amend the article so as to require a Convention on application of 2/3 of the Sts

Mr. Naudain presented a preamble and resolutions of the Legislature of the State of Delaware, as follows:
Whereas, certain resolutions, passed in December last, by both branches of the Legislature of South Carolina, declaring "that it is expedient that a Convention of the States be called as early as practicable, to consider and determine such questions of disputed power, as have arisen between the States of this confederacy and the General Government"--have been transmitted by the Executive of that State to the Governor of this, and by him laid before the General Assembly for an expression of its sentiments: Therefore,
Resolved by the Senate and House of Representatives of the State of Delaware, in General Assembly met, That the Constitution of the United States of America, which is a form of government established by the people of the United States of America, has expressly provided a tribunal in the Supreme Court of the United States, for the settlement of all controversies between the United States and the respective States, and of all controversies arising under that instrument itself.
Resolved, That the Constitution of the United States of America does not recognize any such tribunal or political assemblage as a Convention of the States; but has expressly provided for modes of amendment, if amendment be necessary, in the fifth article, as follows: "TheCongress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing amendments, which, in either case, shall be valid, to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof, as the one or the other mode of ratification may be proposed by the Congress." Any other mode must therefore be repugnant to its provisions.
Resolved, That such a Convention to propose amendments, when called by Congress, must be, in the nature of things, a Convention of the people from whom the Constitution derived its authority, and by whom alone it can be altered, and not a Convention of the States.
Resolved, That no such political assemblage as a Convention of the States, could take place as a constitutional organ of Government; and that, if assembled, it could have no such power as that set forth by the resolution of South Carolina, "to consider and determine such questions of disputed power as have arisen between the states of this confederacy and the General Government."
Page 158 | Page image
Resolved, That it is not expedient for Congress to call "a Convention for proposing amendments" at this time. But that if any amendments be necessary, it comports with the views of the General Assembly of this State, that they should be proposed in the other mode provided by the Constitution--"by two-thirds of both Houses of Congress."
Resolved, That the Governor be requested to transmit copies of these resolutions to the Governors of the several States, with a request that they may be laid before the Legislatures of the respective States; and also to our Senators and to our Representative in Congress, to be by them laid before Congress for consideration.
JOSHUA BURTON,
Speaker of the Senate.
THOMAS DAVIS,
Speaker of the House of Representatives.
Passed at Dover, January 25, 1833.
The preamble and resolutions were read; and
Ordered, That they be laid on the table, and printed.
Permalink Reply by Mangus Colorado, Moderator on January 5, 2013 at 11:28am
Delete
ED, History is interesting and the extent of debate shows that the FF&R thought out the wording of Article V and said what they meant and meant what they said in very simple clear concise language.
Many attempt to create fear of the Article V State Amendment procedure as they all believe that a CONVENTION is required. Please keep in mind that a CONVENTION in those times was just a meeting of two or more individuals. 
The Proposed State Amendment being presented is very concise and simple in word but powerful in Restoration of a small - weak limited powers Federal Government and a Strong Powerful State governments with all powers not given in the Article I section 8 enumerated powers.
Clearly the FF&R intended this construction by the 5th amendment, the 10th amendment and others. Please keep in mind that the ACTUAL WORDS OF THE CONSTITUTION MAKE UP THE FOUNDATION OF OUR REPUBLIC - 
Permalink Reply by Mangus Colorado, Moderator on January 6, 2013 at 1:10pm
Delete

The First Conservatives: The Constitutional Challenge to Progressivism

By Johnathan O'Neill
July 5, 2011

SHARE

Abstract: Although it is readily apparent that conservatism is united in its principled hostility to modern Progressive Liberalism, it is often more difficult to pin down just what the movement stands for. Johnathan O’Neill suggests that a focus on defending and preserving the Constitution could unite the otherwise fractious conservative movement. In this spirit, he examines four early conservative responses to Progressivism, all of which continue to have supporters today: Burkean traditionalism, Southern Agrarianism, libertarianism, and constitutional conservatism. While the first three had a strained, ambiguous, or hostile relationship to the constitutional order that limited their ability to respond to Progressivism, the latter offered informed and forthright resistance to Progressivism based on an affirmation of American constitutionalism. These conservatives met Progressivism with principled arguments rooted in the constitutional tradition, and they give us a historical example that can offer guidance to today’s conservatives.
Electoral defeats and long-standing differences of principle have separated the strands of conservatism held together for so long by the leadership of William F. Buckley and Ronald Reagan. Libertarians, who value individual liberty above all, have gained adherents due to dissatisfaction with the steadily increasing power of modern government. Traditionalist conservatism, often informed by religion, has invigorated opposition to abortion and remains vibrant, but its emphasis on virtue and moral restraint distances it from the moral relativist orientation typical of libertarianism. The neoconservative understanding of human nature and dedication to an activist foreign policy, both built on a version of American exceptionalism, are sometimes rejected by libertarians and traditionalists.
Yet all of these enduring schools of contemporary conservatism treat the Constitution as a good and generally politically sound document, even if they might question aspects of it or disagree among themselves on other matters. This truth suggests that one way toward another era of practical accord among the different types of conservatism is a focus on defending and preserving the Constitution.[1]Whatever the ultimate principles and immediate aims of the various types of conservatism, they have more to gain from focusing the political conversation on the Constitution than do their adversaries, contemporary liberals or progressives, who more likely would prefer to abandon it.
How might politics look if conservatism oriented itself around preservation of the Constitution? We can gain historical perspective on this question by considering how conservatives responded when Progressivism challenged the established constitutional order in the early 20th century.
Progressivism was an intellectual and political reform movement that aimed to alter the American constitutional system.[2] At the deepest level, as expressed especially in the thought of Woodrow Wilson and Herbert Croly, Progressives aimed to refound America based on the managerial–administrative political philosophy of the European state. Consequently, Progressives typically rejected the foundational American principles of natural rights and limited government for their own understanding of “progress,” defined as governmental experts’ management of social change toward an ever more just and essentially socialist future.
Progressives called for more activist regulatory power in the federal government via administrative bureaucracies and more direct democratic control of political decision making to wrest it from the supposedly corrupt hands of big business and the party system. Progressives were confident that they knew the direction of history and could tutor and direct Americans in what was required to be in harmony with it, so they zealously attacked or redefined aspects of constitutionalism that they regarded as outmoded or simply false.
Accordingly, for Progressives, the local self-government protected by federalism was an obstacle to be overcome, as was the Supreme Court’s resistance to many of their desired regulations. The President would become the representative of a properly instructed public opinion and then would oversee the bureaucracy that would effect the will of the masses.
As this description suggests, in many respects, Progressives created the world we now inhabit, and Progressivism’s modern Liberal incarnation remains very much with us. Those who would resist the further elaboration of the Progressive vision would do well to study the arguments and limitations of those who first opposed it.
It is in this spirit that we will examine several noted conservatives who criticized Progressivism and who yet had a strained, ambiguous, or hostile relationship to the constitutional order. This discussion will analyze the period’s most noted exemplars of Burkean traditionalist conservatism, Southern Agrarianism, and libertarianism, all of which continue to have supporters among today’s conservatives. These groups’ principles, though considered and sometimes profound, limited their commitment to American constitutionalism and thereby prevented a stronger and more coherent conservative response to Progressivism. Their insufficient attachment to the Constitution, at the time when it most needed them, should serve as a warning to today’s conservatives.
We will then examine a now-neglected group of conservatives who also rejected Progressivism but did so precisely by rededicating themselves to American constitutionalism. This group articulated the classic constitutionalist arguments for federalism, for an independent judiciary dedicated to the rule of law but not somehow superior to the Constitution, and for a presidency checked by and moored to other institutions of government rather than to mere public opinion.
Conservatives Alienated from American Constitutionalism
Humanism and the Limits of Burkean Conservatism
In the 1920s, Irving Babbitt (1865–1933), a professor at Harvard University, began a movement of conservative cultural criticism known as Humanism. Led by Babbitt’s influential writing and his popularity as a university instructor, Humanism rejected the wooly-headed utopianism and crude self-indulgence it saw as degrading modern culture, especially literature.
Humanism steadily gained adherents among conservatives, and Babbitt remains an abiding referent for traditionalists who cast a wary eye on American culture. His deepest intellectual loyalty was to Edmund Burke, whose thought informed Babbitt’s brief but pointed attack on Progressivism. Though Babbitt was not primarily a political thinker, his Democracy and Leadership (1924) is a fine example of a Burkean approach to the political and constitutional questions of the day.
Babbitt condemned Progressives’ confiscatory reform schemes and defended the absolute necessity of property rights for any decent society (though always remaining critical of crude materialism). He praised the Supreme Court as the institutional embodiment of the principled restraint central to his thought. He also cautioned against increased presidential power, ridiculed Prohibition as a characteristic modern intrusion on liberty, and warned that the Progressives’ zeal for direct democracy was profoundly dangerous to republican government. Moreover, Babbitt valorized Washington and Lincoln as paragons of principled leadership who knew that ethical restraint was needed if democracy was to endure.
In the teeth of Progressivism, then, Babbitt’s deep learning generated a kind of constitutional conservatism, yet his Burkean orientation ultimately distanced him from America’s foundational principles. Babbitt held that on one side of man’s dual nature stood insatiable appetite and passion; on the other, moral self-restraint and willed moderation that constituted the “inner check” or “veto power” on the former. He deployed this dualism, which he knew had a long history in Western thought, as a powerful critique of democratic culture, materialism, and politics. Drawing somewhat on Aristotle and more on Burke, Babbitt argued that only an aristocracy could orient society toward ethical standards and self-restraint, thereby moderating the selfishness, vulgarity, and redistributionist meddling loosed by modern mass democracy.
But his Burkean distaste for democracy distanced him from the natural rights and popular sovereignty principles announced in the Declaration of Independence and sustained by the constitutional order. Focused on ethical standards and self-restraint, Babbitt saw in Locke and in Jefferson’s Declaration only the assertion of “abstract rights” shorn of duties and thus the inevitable modern slide into vulgarity and petty self-interest. “The liberty of the Jeffersonian,” he wrote, “makes against ethical union like every liberty that rests on the assertion of abstract rights.” With more than an echo of Burke, Babbitt too quickly conflated the French and American Revolutions, dismissing the “supposed rights of man” as serving only the destructive leveling of democracy.[3]
Babbitt hoped that aristocratic leadership and ethical standards could be revived, but this was a hope against what he viewed as the low and irredeemably appetitive character of American principles. Consequently, his conservatism backed into a defense of important aspects of the constitutional order yet rejected its foundation in the early modern liberal theory of natural rights, popular sovereignty, and social contract.
Babbitt denied himself recourse to America’s foundational ideas just at the time the Progressives were severely undermining them. This limitation was encapsulated in his juxtaposition of antebellum abolitionists’ appeal to natural rights (and that of Lincoln, one might add) with the states’ rights claims of Calhounite fire-eaters. He said both sides took equally “extremist” positions. So “the whole question of union, instead of being settled on ethical lines, had to be submitted to the arbitrament of force.”[4] But Babbitt’s form of conservatism, as has been noted, “could not determine whether some rights supercede some duties; his argument gives the impression that a stable social order is all-important, even though it mean some men and women live enslaved.”[5]
After the New Deal victory, some Burkean traditionalists reconsidered whether their position might form a closer attachment to the American Founding than Babbitt had managed in the Progressive era. Russell Kirk, the Burkean giant of post–New Deal conservatism so influenced by Babbitt, initiated this shift by lauding the Constitution as a conservative bulwark for the American Revolution’s vindication of traditional English liberties—but not natural rights.[6]
Kirk keenly appreciated that American conservatism depended on the achievements of Western civilization and that the Americans would be aided and sustained by recovering this broader historical context. Yet Kirk and Burkean conservatism more generally were never fully reconciled to the idea of natural rights and persisted in viewing America as a somewhat disappointing offshoot of English civilization. Engagement with this set of problems, inherited from Babbitt, gradually helped form major fault lines among traditionalism and other strands of post–New Deal conservatism as they related themselves to America’s principles and Constitution.
The Limits of Southern Agrarian Conservatism
Another significant strand of conservatism in the early 20th century was Southern Agrarianism, whose founding manifesto was an essay collection published in 1930 and titled I’ll Take My Stand. Southern Agrarians’ basic claim was that the South was a culturally distinct section, based on agriculture, which must be liberated from the alleged domination of the mercantile, industrial, and crudely materialist North.
As a group, Agrarians were devoted to individual liberty, local self-government, and Southern culture. They typically argued that the real reason for the Civil War was the North’s oppression of the South, not slavery’s offense to natural rights. Over time, this separation from the American idea of natural rights, and from the Constitution, increased as advocates of “states’ rights,” influenced by the Agrarians, defended secession and the Confederacy.
Frank L. Owsley (1890–1956) was an original Agrarian and influential historian who taught at Vanderbilt University and the University of Alabama. He influenced M. E. Bradford, a major figure in post–New Deal Southern Agrarianism, who wrote that Owsley articulated “better than the rest” of the movement’s early figures its combination of libertarian localism and communitarian traditionalism.[7]
While Agrarianism did not arise in direct response to Progressivism, several of its principles opposed the collectivist and regulatory tendencies of Progressivism and the New Deal. Ultimately, though, Owsley’s conception of sectionalism, skillfully elaborated from the famed historian Frederick Jackson Turner, outweighed all else in his thought. It fostered his acceptance of the quasi-Marxist analysis of the Progressive historian Charles Beard, which led Owsley to view the Constitution as just one more tool of the Northern mercantile elite.[8] Accordingly, the New Deal ultimately revealed how tenuous was Owsley’s connection to the Constitution, and hence the limitations of Agrarianism as rejoinder to the Progressive program.
Simply put, Owsley’s sectional, Agrarian loyalties trumped constitutional principles. Indeed, he regarded even states’ rights as something of a shibboleth: Antebellum Southerners, he said, used it tactically as a defense of their section against the North more than they regarded it as a foundational constitutional principle. Likewise, fixation on states’ rights undermined the shared Southern identity and unity necessary for the South to have won the Civil War.
So when in the Progressive and New Deal periods Northerners appealed to states’ rights or federalism against centralizing statism, he could not take them seriously. Tutored by Beard’s view of the Constitution, he saw in such appeals only the obfuscation of corporate greed so that the North could continue to dominate the South. Moreover, when the early New Deal undertook some agrarian land reform and threatened Northern industrial elites, Owsley welcomed the increased federal power and called for more to revive the Agrarians’ yeoman farmer ideal.
Just how fundamentally Owsley set Southern sectionalism over the Constitution was evident in “The Pillars of Agrarianism,” an essay published in 1935. Since the “United States is less a nation than an empire made up of a congeries of regions marked off by geographic, climatic, and racial characteristics,” the South would never be treated fairly under current governing arrangements. What was needed was “a new constitutional deal” that accounted for the conflicting regional interests and mores. Owsley then sketched a “new set-up [for] the federal government” that would have utterly redefined the constitutional order in keeping with his regionalism and Agrarianism.[9] For Owsley, the New Deal was to be used on behalf of the South, not resisted on behalf of the Constitution.
Even so, the Jeffersonian in Owsley could never quite abandon the American idea of natural rights as the basis for individual liberty and limited, responsible government. He defended natural rights before the New Deal and afterward as part of a switch-of-course defense of constitutionalism as sound as any at mid-century. But he also vehemently denied that natural rights had any bearing on the issues of slavery and the Civil War, and his racism obviated any suggestion that natural rights might underlie a just approach to American race relations. Nor did he recognize any tension between his defense of natural rights and his emphasis on regional economic competition and class struggle as the driving forces in American history.
Given such large inconsistencies, most post–New Deal Southern Agrarians opted for a more Burkean traditionalist conservatism that openly rejected natural rights.[10] Thus, despite Owsley’s proffered loyalty to America’s founding doctrine, his primary devotion to Southern regionalism prevented a strong defense of American constitutionalism amid the challenges of Progressivism and the New Deal. When post–New Deal Southern Agrarianism altogether abandoned natural rights, its connection to American constitutionalism became even more doubtful than it had been for Owsley.
The Limits of Libertarianism
Modern libertarianism, with its defense of individual liberty above all else, formed in direct response to the increase in centralized regulatory government under Progressivism and the New Deal. One of its leading lights was Albert Jay Nock (1870–1945), a journalist and author.
Variously a minister, professor, and full-time writer, from the late 1910s until his death, Nock published in the most important magazines of his era. With erudition and wit he railed against the growth and centralization of state power, bureaucratization, and corrupt legislation that was beholden to private interests (including those of big business). Murray Rothbard, a major figure in the post–New Deal libertarian movement, wrote that “more than any other person [Nock] supplied twentieth-century libertarianism with a positive, systematic theory.”[11] Nock’s anti-statist critique remains influential, despite his unsavory Darwinian and anti-Semitic leanings in his final embittered years.
In his journal The Freeman (1920–1924) and the elaboration of its perspective in Our Enemy, the State(1935), Nock described himself as a “philosophical anarchist.” He tolerated only a severely constricted role for state authority—a radical version of the classical liberal or libertarian position. While “government” had always existed in some form to manage the concerns natural to any community, brigands founded the “state” in conquest and confiscation to seize the land and exploit the production of others. The state was in essence a criminal enterprise, the “political means” for expropriation from honest folk who made their living by productive “economic” means.
Nock applied these ideas to American constitutionalism. He built explicitly on Charles Beard’s quasi-Marxist claim that the motor of history was conflict between economic classes, although he eschewed Beard’s socialism. Beard’s supposed revelation of the Constitution as a coup d’état on behalf of property interests proved that Nock’s own view applied to America: It was no different from any other inherently exploitative state.[12]
Unsurprisingly, then, and despite his zeal for human liberty, Nock did not think much of the Constitution and had little patience with any claim of a principled politics in defense of it. Early in his career, he observed that The Freeman was “never very strong for the Constitution…. We sometimes think that it is the appointed function of the United States to clear the way for a regime of philosophical anarchism elsewhere in the world.”[13] The doctrines of natural rights and popular sovereignty announced in the Declaration of Independence quickly had come to justify merely “an unlimited economic pseudo-individualism on the part of the State’s beneficiaries,” who served themselves while only appearing to act in the name of the public.[14]
Equally fundamental, Nock denied the possibility of politics as classically understood. What masqueraded as principled deliberation about common things only obscured the battle for control of the state. America’s republican, representative politics derived from natural rights and popular sovereignty was “futile.” “Our nominally republican system is actually built on an imperial model, with our professional politicians standing in the place of the praetorian guards; they meet from time to time, decide what can be ‘got away with,’ and how, and who is to do it; and the electorate votes according to their prescriptions.”[15] Indeed, Lincoln’s “‘of the people, by the people, for the people’ was probably the most effective single stroke of propaganda ever made in behalf of republican State prestige.”[16]
Especially fraudulent was any politics “put on show as ‘constitutional principles.’” Such constitution talk was only “an elaborate system of fetiches,” so much “sophistry” and “agonized fustian” that hid the “only actual principle of party action—the principle of keeping open the channels of access to the political means.”[17]
Thus, as Progressivism lurched toward the New Deal, Nock condemned American government along with all other government. The stinging critique of statism drawn from his libertarian and sometimes anarchist views alienated him as much from American constitutionalism as from everything else. As a consequence, Nock was unable to respond adequately to the fundamental constitutional challenges of Progressivism and the New Deal. Whether libertarianism could be reconciled to American constitutionalism would become another important question for post–New Deal conservatives.
Constitutional Principles and the Progressive Challenge
Another group of conservatives did offer informed and forthright resistance to Progressivism based on explication and affirmation of American constitutionalism. Most of these intellectuals, scholars, and politicians were loosely affiliated with the National Association for Constitutional Government (NACG) and its publication Constitutional Review. Their constitutional conservatism proceeded without the reservations or fixed aversions evident in Babbitt, Owsley, and Nock, and in them we have a historical example of how such a program might proceed.
In 1913, David Jayne Hill, a former ambassador to Germany and former university president, proposed the NACG in a galvanizing article attacking socialism, Progressivism, and proposals for constitutional change that had circulated in the election of 1912.[18] The organization was founded that year with Hill as its president and included among its honorary members Elihu Root, an influential former Secretary of State, Secretary of War, and Senator.
In 1917, the NACG began publishing Constitutional Review, which ran through 1929 and included work by Supreme Court Chief Justice William Howard Taft; former Senator and soon-to-be Justice George Sutherland; Galliard Hunt, the biographer and editor of the papers of James Madison; Max Farrand, the compiler of The Records of the Federal Convention of 1787; and Nicholas Murray Butler, the president of Columbia University. The Review was edited by Henry Campbell Black, an established legal writer known most widely for Black’s Law Dictionary, who contributed detailed editorials to most issues. After Black’s death in March 1927, the Review’s editorial board included Charles Warren, the leading constitutional historian of the era, and James M. Beck, a former Solicitor General, Congressman from Pennsylvania, and noted author.
The publication’s circulation was never large, but NACG, the Review, and a few other like-minded public figures articulated an informed constitutional conservatism throughout the 1920s. They expressed themselves in the statesmanlike idiom of constitutional principle and in more popularly accessible and persuasive writing and speech. Drawing from the Founding, they focused on four key principles:
  • Natural Rights. The traditional American understanding of natural rights was foundational for these constitutionalists. Perhaps the period’s most famous such articulation was President Calvin Coolidge’s sesquicentennial speech on the Declaration of Independence. [19] Leading figures such as Beck, Root, and Hill often made similar statements. Contributors to the Review used the logic and language of natural rights in holding that a core purpose of constitutionalism was protection of the individual from arbitrary or illegitimate authority. Likewise, they often referred to man as a created and ensouled being whose dignity and protection demanded unmoveable limits on government.[20]
  • Limited Government. This natural rights basis for liberty accepted the old republican point that government must be limited because of the lower, appetitive, and irrational side of human nature. This idea was expressed through defense of established American conceptions of limited government and religious notions of creation and fall. For example, Hill treated American constitutionalism as a “system of voluntary renunciation of arbitrary power.” The American people, as the popular sovereign, had done “what no other sovereign had ever before voluntarily done in the history of the world—they freely and formally renounced the power to impose their personal arbitrary will upon the organs of government or upon one another.”[21] Others observed that “self-government, if it means anything, means the exercise of sufficient self-restraint on the part of the people to uphold their own fundamental law against every temptation to subvert it.”[22] Americans were “a self governing people because we are a people of self imposed limitations.”[23]
  • Equal Rights for All and Special Privileges for None. Objections to “class legislation”—laws that privileged some groups of citizens over others—abounded in conservative constitutional discourse, as they did in the era’s Supreme Court decision making. The NACG’s statement of founding purposes emphasized this point, and Constitutional Review frequently defended “equal rights for all and special privileges for none.”[24] Often, such statements occurred with criticisms of union violence, socialism, or Communism, the latter two being regarded as the ultimate destructive expression of class legislation. Thus, the growing conservative resistance to the collectivist notion of class emerged from and built on a key principle of America’s natural rights: limited-government constitutionalism.[25]
  • Republicanism, not Democracy. Closely related to the focus on rights, restraint, and class legislation was the often reiterated statement that America was “a republic, not a democracy.” This point informed opposition to Progressivism’s call for more direct and plebiscitary popular rule. Like the Founders, constitutionalists defended representative government for its ability to foster deliberation and moderation, and America’s institutional arrangements because they put some distance and delay between public opinion and the creation of law. In the words of Henry Cabot Lodge, the Founders’ goal was that there “should be abundant time for discussion and consideration, that the public mind should be thoroughly and well informed, and that the movements of the machinery of government should not be so rapid as to cut off due deliberation.”[26]
Examples could be multiplied of how constitutional conservatism cohered around America’s foundational conceptions of natural rights, limited government under the rule of law, and republicanism. Of course, individuals sometimes disagreed on particulars or supported specific reforms as consistent with their principles. The point to be emphasized here, however, is that conservatives met Progressivism with principled arguments rooted in the constitutional tradition.
Although recent scholarship has delved more deeply into the philosophical core of Progressivism than did most conservatives of the time, it is important to note that they saw its basic challenge to American constitutionalism. Hill recognized the roots of Progressivism in modern European theories of the state, despite the older trend in Western civilization toward limitations on absolutist conceptions of politics. America’s natural rights, limited-government constitutionalism clearly opposed the idea that “there exists somewhere an exclusive sovereign power, whose sphere is undefined, whose operation is incessant, whose decrees are materially irresistible, and whose authority is, therefore, not to be questioned.” [27]But now modern mass democracy, including Progressivism, threatened a return to absolutism.
Hill developed this argument in numerous scholarly yet politically pointed writings. Others atConstitutional Review routinely bemoaned the “paternalist” trend of modern statism, sometimes linking it to the “Hegelian conception of the incarnate state” and urging Americans to excise from their political science the “alchemy and astrology that Europe has interwoven into it.”[28]
Reflective conservatives also recognized that the endurance of any regime required education in its principles—as well as loyalty to those principles among people not necessarily able fully or theoretically to articulate them. Beck often reiterated this point, sometimes calling on Aristotle (as in this somewhat truncated quotation): “‘The best laws [, though sanctioned by every citizen of the state,] will be of no avail unless the young are trained by habit and education in the spirit of the Constitution.’” He rejected attributing to the Constitution some kind of “magical effect” whereby it could maintain itself. In reality, it “would have been a failure if there had not been a people with a sufficient genius for free government to maintain its principles.” Ignorance of constitutional principles and disengagement from political life would bring the end of the republic.[29]
Permalink Reply by Mangus Colorado, Moderator on January 6, 2013 at 1:12pm
Delete
Charles Warren agreed, stating that “our political system will break down, only when and where the people, for whom and by whom it was intended to be carried on, shall fail to receive a sound education in its principles and in its historical development.” Warren knew that this idea was central to the American Founding and restated it in that era’s famous formulation: The preservation of free government required “frequent recurrence to fundamental principles.”[30] Warren’s large scholarly output advanced this goal, in part by amassing detailed primary source evidence to refute Progressive historians such as Charles Beard.[31]
A major aim of the NACG and Constitutional Review, therefore, was to remedy the ignorance that had made citizens susceptible to radical and Progressive schemes. Preservation of constitutionalism necessitated “dissemination of knowledge regarding theories of government and their practical effects” and wider “comprehension of the distinctive principles upon which our political institutions are founded.” Together, these would create a “higher type of American patriotism though loyalty to those principles.”[32] The NACG and the Review supported state-level movements to require the teaching of constitutional principles and history in colleges and public schools, oratorical contests, and the first celebration of “Constitution Day” on September 17, 1919. The NACG also distributed some of the first pocket-sized copies of the Constitution.[33]
These efforts aided those of the American Bar Association, then still a conservative organization, which created a Committee on Citizenship to help lawyers communicate constitutional principles to popular audiences at the local level. Leaders of the bar frequently urged lawyers to this kind of public service.[34]
Such efforts, as the people organizing them intended, not only transmitted a basic understanding of constitutional principles, but also fostered patriotic and affectionate attachment to them. Such educational efforts were sometimes dismissed by critics then and since as a boosterish “cult of the Constitution.”[35] Perhaps for some it amounted only to that, but Aristotle’s insight is not so easily dismissed. Amid the era’s mass democracy and mass immigration, constitutionalists did not commit the error of believing that an elite or theoretical education alone was adequate to the maintenance of their regime.
Constitutional Conservatives Respond to Progressivism
Progressivism presented particularly sustained challenges to established understandings of federalism, the judiciary, and the presidency. Progressives wanted to diminish the power of the states in order to achieve a regulatory and redistributive regime centralized in the federal government. The new-modelled President was to be the voice of the people, who would lead them in “progress” toward this regime through his vision of the future and his command of the federal bureaucracy. When the judiciary resisted significant portions of this program, it too became a target of the Progressives.
As a result, constitutional conservatives found it necessary to come to the aid of state and local self-government, an independent judiciary bound to the rule of law and constitutional limits, and a presidency tied to and constrained by other elements of the constitutional system.
Defending Federalism
Although Progressives welcomed local initiatives that served their ends, they ultimately favored centralized power. Consequently, they attacked the established understanding of federalism with approaches that tended toward elimination of any restraints on the federal government.[36]
Federalism was the heart of many of the jurisprudential and constitutional controversies surrounding major Progressive measures: the era’s four Amendments (XVI–XIX); the expansion of regulation under the Commerce and General Welfare Clauses; the growth of federal grants-in-aid and regulatory commissions (whose genesis preceded Progressivism); the regulation of child labor; and the move to create a federal department of education. Not all of the details of these issues can be addressed here, but I emphasize that when approaching them, conservatives defended federalism on principle. Partisanship was present, as always in constitutional politics, but so were considered arguments about the place of federalism in the constitutional order.
Constitutional conservatives adhered to the foundational American understanding of federalism as the division of authority and responsibility between levels of government for the sake of individual liberty and local self-rule. They condemned ongoing centralization as a grave threat. Indeed, “centralization” resounded as a pejorative throughout their constitutional commentary, as did “bureaucracy,” “regimentation,” “standardization,” “usurpation,” and “collectivism.”[37]
A major theme of anti-Prohibitionism was opposition to the federal takeover of an issue long subject only to local regulation.[38] For the same reason, Charles Warren defended judicial review against congressional attacks yet also criticized the Court’s due process jurisprudence (both treated in more detail below).[39]
Federal grants-in-aid, whereby the federal government gave states money on the condition that they abide by federal policy mandates, were typically based on a broad interpretation of the General Welfare Clause and faced sustained opposition from Governor Albert C. Ritchie of Maryland and Senator James W. Wadsworth of New York. Not only did these programs financially entice states to trade their own authority for federal supervision, but they also were bad policy, inequitably redistributing wealth and resulting in maladministration by functionaries ignorant of local conditions. Critics also echoed Tocqueville’s crucial point: Continued compulsion by a distant central authority “shall most certainly smother the ability of our people to govern themselves in the several states and in their home communities.”[40]
Many critics also attacked centralizing Progressive initiatives as irresponsible and costly bureaucracies that tended toward socialism and perhaps Bolshevism.[41] Constitutional conservatives were part of a coalition that defeated a proposed child labor amendment. They did so by advocating local control as necessary to accommodate diverse circumstances and by emphasizing the measure’s heavy-handed statist intervention into a traditionally private issue.[42] Henry Campbell Black and many others similarly regarded the proposed department of education as “the entering wedge for national centralization and standardization of education.”[43] Only the continued vitality of the states could halt the drift toward a stifling yet remote government that reduced self-governing citizens to dependent subjects.
Defense of federalism was no mask for inaction: Many conservatives thought that averting centralized federal control required constructive responses in the states, both individually and collectively. Elihu Root made this point in a 1906 address that was discussed and echoed by major figures throughout the period. Modern economic and technological developments created problems that ignored state lines, he said, and citizens who demanded solutions would have them one way or another. States could maintain their established governing authority only by awakening to “their own duties to the country at large.” A state whose laws or inaction flouted widespread calls for reform undermined “the conditions upon which alone its power can be preserved” and promoted “the movement for national control and the extinction of local control.”[44]
This logic informed the movement for uniform state legislation, led initially by the American Bar Association and then by the National Civic Federation, which involved Root, Taft, and other conservatives. The movement was fundamentally conservative because it aimed to preserve the inherited federal structure from more far-reaching centralization by convincing states to cooperate in enacting model reform statutes. It had some success across a range of policy areas but ultimately was swept aside by the New Deal.[45]
Though some prominent conservatives supported individual centralizing initiatives, in general they regarded the centralizing tendency in so many policy areas at once as an unsound alteration of American constitutionalism.[46] In a speech hailed by conservatives, President Coolidge warned at length that nothing less than liberty and self-government were at stake. People who asked more of the federal government “than it was ever intended to provide” should recognize that “if we permit some one to come to support us, we cannot prevent some one coming to govern us.”[47]
Conservatives repeatedly quoted a famous sentence from Texas v. White (1869): The Constitution looked to “an indestructible Union, composed of indestructible States.”[48] When first announced, this decision brought some closure to the constitutional tumult of the Civil War, holding that the perpetuity of the Union made secession legally impossible. Yet the constitutional conservatives examined here used this passage to protest that local self-government in the states was being destroyed by federal regulation. Nicholas Murray Butler spoke for many in observing that while “states’ rights” had once meant nullification and secession, it “now signifies the preservation of that just and wise balance between local self-government and central authority upon which our social order and our system of government itself have alike been built.”[49]
A Proper Role for the Judiciary
Constitutional conservatives confronted attacks on the judiciary by Progressives who were dissatisfied with its resistance to some (but not all) aspects of their agenda. Progressives wanted courts to be more immediately receptive to their demands, but conservatives responded that judicial review was designed precisely to limit majorities within the bounds of the Constitution. Courts should not capitulate to whatever a majority may want at a given moment.
Crucially, conservatives made this argument in defense of judicial review without endorsing the late 20th century’s unsound idea of judicial supremacy—the claim that the Supreme Court is the only or final expositor of constitutional meaning.
Defending Judicial Review
Since the late 19th century, reformers and radicals had been alleging that judicial review—the courts’ power to overturn legislation—was constitutionally illegitimate. Charles Beard’s famous historical studies refuted this charge, but only by concluding that judicial review was originally intended as protection for capitalist greed from the democratic masses. This intellectual and political atmosphere encouraged several direct attacks on courts in the Progressive era.
  • Theodore Roosevelt advocated recall of judicial decisions and judges in 1911–1912.
  • Senator Robert L. Owen and Walter Clark of the North Carolina Supreme Court advocated varying plans to curtail judicial review, including abolition (most intensely in 1913–1917).
  • In the 1920s, other Senators proposed bills to withdraw federal question and diversity jurisdiction and to prevent federal district court judges from instructing juries.
  • The American Federation of Labor advocated abolishing judicial review or permitting Congress to re-enact overturned statutes.
  • In 1922–1924, Senator William Borah proposed that overturning an act of Congress should require the votes of at least seven of nine members of the Court, while Senator Robert M. La Follette proposed that Congress should be able to re-enact any statue overturned by the Court and that lower federal courts should be unable to overturn them at all.[50]
Constitutional conservatives responded by defending judicial review and the Supreme Court as integral to the constitutional order. They saw recall of judges or judicial decisions especially as a threat to individual liberty and the rule of law. In the name of unfettered majoritarianism, the recall movement would abandon the republicanism, restraint, and deliberation central to constitutionalism. Leading constitutional conservatives often used a passage from Lincoln’s first inaugural as a statement of their own position: “A majority held in restraint by constitutional checks and limitations and always changing easily with deliberate changes of popular opinion and sentiment is the only true sovereign of a free people. Whoever rejects it, does of necessity fly to anarchy or to despotism.”[51]
On these principles, Elihu Root opposed a judicial recall provision in the proposed Arizona constitution, and in 1911, President Taft likewise vetoed the legislation admitting Arizona to the union. Taft also repeatedly denounced Roosevelt’s anti-judicial position in the presidential election of 1912. In a speech accepting the nomination, Taft stated that preserving the Constitution “as it is” from attacks on the judiciary was “the supreme issue” of the campaign.[52]
Like Taft, Root and Henry Cabot Lodge argued during the 1912 campaign that recall of judges or decisions ultimately would elevate the will of majorities above the rule of law, limited government, and natural rights. [53] Both men withdrew support from their friend Roosevelt in 1912 because of his attack on the courts—despite recognizing the increased likelihood of victory for Woodrow Wilson.
Recall proposals provoked Charles Warren to rebut the claim that the Supreme Court routinely used the Fourteenth Amendment to overturn regulatory or “social welfare” legislation passed under the states’ police powers. In two influential articles examining such decisions from 1887 to 1911, Warren found only three statutes overturned. He concluded that demands for fundamental constitutional change such as the recall were not only unwise, but unnecessary: In fact, the Supreme Court was often “progressive” and a “bulwark to the state police power.”[54]
In widely publicized writings, Warren also responded to the Borah and La Follette proposals of 1922–1924. He showed that from 1789 to 1923, the alleged scandal of five-to-four decisions overturning federal statutes, which so exercised Borah in his goal of requiring a supermajority of seven out of nine votes, actually reached a grand total of nine decisions. Other decisions that Progressives welcomed were by five-to-four margins, while still others that angered them were by larger margins, including the second child labor decision (with the votes of Holmes and Brandeis in the majority). Warren had little difficulty concluding that the five-to-four line of argument was unprincipled: mere “camouflage” for Progressive dislike of a few recent decisions. It did not justify the “radical” constitutional change represented by the proposals.[55]
Dismissing the La Follette proposal that a statute repassed by Congress after rejection by the Court should become constitutionally valid, Warren observed that “a bad statute shall become good by repetition.” He then listed 25 explicit constitutional limitations, including the guarantees of the Bill of Rights, that Congress could overcome with a twice-passed statute, as well as several acts of Congress affecting individuals that the Court had held to be violations of the Constitution. Warren emphasized throughout that first principles were at stake: La Follette’s proposal would be a “change in our whole system of government” and would put an end to constitutionalism: “To make Congress absolute and final judge of the extent of its own power is to give it unrestricted power.”[56] Disagreement with particular decisions could not be a reason for permitting the legislature to control the judiciary.
Amid these developments, Warren published two books—one of which won a Pulitzer Prize—which aimed in part to quell attacks on the Court. They showed that Progressive proposals were merely the latest in a long line of condemnations and ill-advised nostrums motivated by dissatisfaction with particular recent decisions rather than by constitutionalist principle. Recognizing that such efforts still benefited from earlier Populist and Progressive claims that judicial review itself was illegitimate, Warren again displayed much of the countervailing evidence from the Founding era. He thus used his considerable skill and reputation as a historian to resist attacks on the judiciary. Other constitutional conservatives reiterated, in varying levels of detail, the historical case for the legitimacy of judicial review and the soundness of Marbury v. Madison.[57]
Taft became Chief Justice in 1921 and grew more circumspect in his public defense of the Court, but he still declared that “a judiciary whose judgments must be made to follow popular clamor and the inconstancy of mob opinion indicates a people lacking that conservative and conserving self-restraint without which popular government is foredoomed to failure.”[58] He thought the Borah and La Follette proposals unlikely to succeed but was concerned enough privately to encourage members of the bar and journalists to resist them. He praised those who did (including Warren, who received the thanks of several other Justices).[59]
Additionally, Taft was able to use his long-pursued and largely successful program of jurisdictional, procedural, and administrative reform of the judiciary to shield the Court from attack. Culminating in the Judiciary Acts of 1922 and 1925, his efforts were both sincere and strategically intended to preserve the established constitutional order. For nearly two decades, he had been calling for reform in the name of efficiency and fairness to poorer litigants.[60] He reiterated this point before, during, and after the 1912 campaign while also arguing that reform would increase respect for the law and courts, thereby undermining movements for more radical change.
Taft aimed to take “away from the enemies of constitutional government and the institutions of civil liberty, the only real arguments they have against our judicial system.”[61] In the 1920s, he also worked behind the scenes, somewhat counter to the norm of judicial neutrality, to defeat bills that he believed would have undermined judicial independence.[62]
Opposing Judicial Supremacy
Despite the Court majority’s traditional self-understanding and consequent commitment to constitutional limitations and the rule of law, in the early 20th century, elements of its jurisprudence were moving toward the highly discretionary and essentially legislative form of modern judicial review and the allied idea of judicial supremacy.[63] These intellectual seeds would not come to full fruition until after the New Deal, when the Court routinely announced itself as the ultimate and final arbiter of a now highly amorphous Constitution.
Yet for the constitutional conservatives of the Progressive era, judicial supremacy as we have come to know it was an alien idea. This was due partly to historical studies which illustrated that the separation of powers had long been a strong limit on courts’ understanding of their function and partly to the related history of non-judicial constitutional interpretation.
William Meigs, a respected attorney and conservative critic of Progressivism, argued that judicial supremacy reflected neither the original understanding nor the early practice of American constitutionalism. Rather, the judiciary had thought of itself as a coequal constitutional interpreter whose decisions bound litigants in a dispute, but not as an authority able to issue decrees that were “absolutely final, and must be accepted by all, — Departments of Government as well as individuals.”[64]
Other constitutional conservatives did not hesitate to criticize the Court, sometimes directly rejecting the idea of judicial supremacy. As one contributor to Constitutional Review maintained, there was a “vital distinction between criticising the Supreme Court because it does not sustain Congress” and criticizing it when “it has failed to sustain the Constitution.” Respect for the Court was “consistent with a lack of belief in its infallibility and with an even greater admiration and respect for the fundamental law.”[65]
Conservatives frequently opposed the Court’s validation of increased regulation through expansion of the Commerce Clause, while its due process jurisprudence was so vague and unpredictable that litigants were left with a mere “gambler’s chance.” Charles Warren warned (accurately, as it turned out) that the incorporation doctrine as used in Gitlow v. New York (1925) was an ominous harbinger of how the Court’s vague notion of liberty might be used to eviscerate federalism. Additionally, the Court’s rapid rejection of challenges to the Eighteenth Amendment meant that it could not be “looked to for redress” on other pressing federalism issues.[66]
Henry Cabot Lodge similarly defended the judiciary but rejected judicial supremacy by returning to Lincoln’s response on Dred Scott. In one of the period’s most insightful and extended engagements with Lincoln’s statesmanship, Lodge defended the true constitutionalist principle by analyzing Lincoln’s speeches, debates with Stephen A. Douglas, and first inaugural. While an individual Court decision resolved the litigants’ particular dispute, it was not “a rule of political action for the people and all the departments of government.” On the contrary, if the Court’s decisions “irrevocably fixed” government policy “upon vital questions affecting the whole people,” then “the people will have ceased to be their own rulers, having to that extent having practically resigned their government into the hands of that eminent tribunal.” Lodge emphasized the contrast between Lincoln’s “calm words, uttered under the greatest provocation, with the violent attacks now made on the courts” and concluded that Lincoln had in fact offered the “strongest arguments for an independent judiciary that can be found anywhere.”[67]
Conservatives further held that leaving to courts all considerations of constitutionality shirked legislative duty and fostered a dangerous ignorance and apathy among both legislators and citizens. The “duty of upholding the Constitution does not devolve upon the Supreme Court alone. It rests upon all departments of government and, in the last analysis, upon the people themselves.”[68]
This understanding of the limited authority and efficacy of the judiciary derived from the more fundamental view that maintaining the constitutional order required citizens educated in and dedicated to the principles and ethos of constitutionalism. Hence, the “battle for preservation of American political institutions must be fought out, not in the courts[,] but in the forum of public opinion.”[69] Such thinking shows that the tendency toward judicial supremacy had not yet wholly displaced the older, sounder understanding of the Court’s role in the constitutional system.
Constitutional conservatives respected the separation of powers and the deliberation it was intended to foster, knew that the Court often upheld intrusive regulations, and insisted that constitutional maintenance required education in first principles rather than uncritical acquiescence to any department of government. It is not too much to suggest that some of their expressions that tended toward modern judicial supremacy were compensatory overstatements in favor of a sound institution that was under attack rather than firm commitments to the doctrine as we now know it.
The Limits of Presidential Power
Constitutional conservatives, led at first by Taft, confronted the beginning of the modern presidency in Theodore Roosevelt’s “stewardship” theory. It held that the President legally could do “whatever the needs of the people demand, unless the Constitution or the laws explicitly forbid him to do it.”[70] This view broke with the tenets of American constitutionalism by locating the source of the President’s power in his own assessment of public opinion rather than in the Constitution. Roosevelt’s Autobiographyexemplified the theory’s accrual of discretionary power in the executive, as in his plan to use force in the Pennsylvania coal strike of 1902 and his circumvention of Congress by means of executive orders and advisory commissions.
According to Senator James Watson’s memoir, Roosevelt’s views surfaced abruptly when the possible unconstitutionality of his Pennsylvania plan was raised. Roosevelt supposedly responded: “To hell with the Constitution when the people want coal!”[71] Roosevelt allied his theory with Andrew Jackson’s and Lincoln’s strong, statesmanlike conception of the presidency while associating Taft with James Buchanan’s inaction on the eve of the Civil War. The “Buchanan–Taft” model of the presidency was weak, timidly legalistic, and too deferential to party and Congress.
Taft responded that constitutionalism required that all power be checked and limited. Roosevelt’s theory was “unsafe” and “a little startling in a constitutional republic”—ultimately, it could not be regarded “as anything but lawless.” The “true view of the executive functions” was that the President had no power “which cannot be fairly and reasonably traced to some specific grant of power or justly implied and included within such express grant.” Contrary to Roosevelt, there was no “undefined residuum of power which he can exercise because it seems to him to be in the public interest.”[72]
Taft clearly regarded the stewardship theory as dangerously anti-constitutional. Therefore, he also rejected Roosevelt’s appropriation of Lincoln. Judging Lincoln’s justification for the suspension of habeas corpus as “well founded” and impressed with the “great weight” of his legal arguments for emancipation, Taft pointed out that in these instances and others, Lincoln, unlike Roosevelt, “always pointed out the source of the authority which in his opinion justified his acts” and never claimed that “whatever authority in government was not expressly denied to him he could exercise.” Taft thus showed that a proper understanding of Lincoln required the distinction between an energetic executive whose discretion and dispatch were exercised in emergencies—and yet on behalf of constitutionalist principle—and the Rooseveltian view in which “the Executive is charged with the responsibility for the welfare of all the people in a general way, that he is to play the part of a Universal Providence and set all things right, and that anything that in his judgement will help the people he ought to do, unless he is expressly forbidden not to do it.”[73]
Supporters of the modern presidency have long endorsed Roosevelt’s dismissal of Taft. However, careful analyses have shown that Taft held a broad view of the Constitution’s “take care” clause,[74] which permitted ample executive discretion in the interpretation of statutes, rule-making in administrative agencies, and enforcement of treaty obligations absent congressional approval.[75] As President, he made executive agreements with foreign governments and instigated a national budgeting system in the executive branch against the wish of Congress.
To be sure, Taft was not particularly charismatic or adept at public relations, but his conception of the presidency was not the timid or narrowly legalistic caricature propagated by his Progressive adversaries.[76] As Chief Justice, Taft also wrote the detailed and scholarly majority opinion in Myers v. US (1926), which remains one of the strongest articulations of the “unitary executive.” It held that the President alone (without the consent of the Senate) could remove at will officials in the executive branch—a position Taft had long supported.
What stands out in Taft’s constitutionalist understanding of the presidency, then, is not the Rooseveltian canard of weakness or immobility. Rather, it is fidelity to what was being undermined by Roosevelt (and then Wilson): a principled awareness that the office of President had limits, as did every other office; its occupant could not legitimately claim as much power and discretion as his temerity or guile permitted.
Another of Roosevelt’s legacies was what is now called the direct or “plebiscitary” connection between the presidency and the electorate. This shift advanced a fundamental aim of Progressivism: replacement of the locally based party system with an unmediated relationship between the individual and the modern regulatory state.
At the time, clear-sighted conservatives recognized this change.[77] Taft opposed it, and Roosevelt’s part in it, based on his understanding of how parties and the presidency should serve the moderating, deliberating, and limiting functions of constitutionalism. As one study put it, Taft’s “major concern [was] that parties and elections should play the role assigned the presidency by the Rooseveltian view.”[78] In the 1912 campaign, Taft warned that Roosevelt so “lightly regard[ed] constitutional principles” and so “misunderstood what liberty regulated by law is” that he could not be trusted with a third presidential term—and was unlikely to stop at just one more. Americans had not given “into the hands of anyone the mandate to speak for them peculiarly as the people’s representative.”[79]
Taft held that parties were crucial for the safe and successful operation of constitutional government while acknowledging that corruption and bossism afflicted the two-party system and required reform. Parties integrated the diverse interests and priorities of various social strata across a vast country, cohering the electorate around shared principles and policies. “Without them, the proper interpretation of the popular will into effective governmental action becomes very difficult.” Because of their integrative and deliberative function, parties tended to neutralize “class and selfish spirit” and were “more likely to be American in their view and purpose, much more likely to be considerate of the whole country, and much less likely to be narrowly moved by the ambition of a selfish faction.” In short, the maintenance and discipline of parties were “essential to the carrying on of any popular government.”[80]
Taft never doubted that the President must be the primary voice of his party in defense of its policies and in working with Congress for their enactment, but the President also represented a program that had been deliberated and mediated by a party acting as a cohesive and integrating force in national life. He was not the embodiment of some vague national destiny or harbinger of historical progress on behalf of “the people.” The latter view, apparent to Taft in Roosevelt, tended toward the demagogy and executive usurpation that historically had ended popular government.[81]

Posted by at

No comments:

Post a Comment

Subscribe to: Post Comments (Atom)