Part One: Of Penumbras
Recently, the United States Supreme Court had two huge opportunities to reaffirm (or, rather, re-establish) our founding-era philosophy of Federalism. In both instances, they got caught with their emanations down, allowing their collective (and grossly deformed) penumbras to hang out in full public view.
Some of the damage from Helvering & Wickard has been mildly mitigated in subsequent SCOTUS rulings, while other decisions since have more firmly entrenched the fallacious premises, resulting in what is now tanatamount to a draw.
As I’ve laid out at length, on my Sons Of Liberty Show podcasts, both US v. Arizona and Florida (et al) v. US HHS presented multi-faceted issues to the court. But central among them were questions of Federal powers versus those of the states.
For a more in-depth explanation of powers versus rights, relative to governmental bodies, see my rant on the topic from the last week of June.
Simply put, rights can only belong to, and thus be exercised by, individuals. In any society, there are greater functions that impact entire groups of citizens. These functions are carried out by some layer of government, whether tribal elders, city councils, county boards, parliaments, or national legislatures.
The beauty of our American system of Federalism, which was (and largely still is) unique in the storied history of humanity, was a simple yet brilliant reliance on limited powers granted only by the citizen’s consent. Up to that point, despite outward appearances of “Democracy” or “Republic”, every single nation or state or empire had, underneath it all, essentially relied on brute force.
We changed all that. America was the first nation to establish, in no uncertain terms, and codify into its governmental structure, the imperatives of Nature’s Laws. This is what is meant by the term, “American Exceptionalism,” that we were establishing a new precedent (the rule of law via consent of the governed), as a glaring exception to the old forced “order” of the rule of men.
The Framers, instead, trusted to the ordered Liberty which arises spontaneously from a civil society franchised with personal property. A society which is comprised of individual citizens, held accountable to the rule of the only laws that can truly be *just*: those in harmony with the laws of Nature.
John Locke and Charles de Montesquieu (among many others) laid out these principles of natural law and ordered liberty, as pertains to human interactions, far more eloquently than I ever could, so I refer you to them for greater context.
The fact of the matter is, folks, we saw the last vestiges of Federalism slip away in the last week of June. This was not done by the hands and minds of nine mortal justices on the High Court (who, in turn, were appointed and confirmed by mortals), but by the incremental repeal of portions of our Constitution, which has been taking place for well over a century.
Some will view that statement as controversial, others as pessimistic. It is neither. I have merely made a statement of objective fact. Admit it or not, our founding document, which is the very legal basis for this first experiment in true self-government, has been intentionally bastardized, trampled, and shredded beyond recognition. This willful usurpation of the ideals of the Framers is couched in the modern-day feel-good lingo of “progress” and “fairness,” but, in fact, has its foundations in neither of these purportedly noble ideas.
Its roots are far less benevolent, to the point of being properly labeled as sinister. For men and women to be individually sovereign, bearing equal responsibility and acclaim for their failures and successes, respectively, is a dire threat to the very governmental powers that were rightly limited by the Constitution. Thus, the Constitution itself must be undermined, in a myriad of ways, in order for governments to subdue and establish dominion over the citizenry who initially granted them power.
This fact was recognized early on by the Founders and Framers, who intimately understood the nature of man. Many of them sought to put in place checks on governmental powers, while others strove to exploit man’s nature for their own benefit, attempting to set themselves up as grand philarchs.
We can see this contrast clearly, by comparing the writings of Madison and Hamilton. The latter wrote, in Federalist #27, of a “general government” so involved in the everyday lives of every citizen that they would soon no longer notice its encroachments, or that they would be unable to distinguish one layer of government (i.e. local) from the next (i.e. state or federal).
In writing this way, in the Federalist Papers, one wishes to give the benefit of the doubt and presume Hamilton meant this as a warning. But the tone of the writing (coupled with his later actions in positions of influence and power within our Federal framework) suggests, instead, a sort of wistfulness or longing for this scenario to play out.
And, indeed, it has. One need only look at the “Ten Thousand Commandments.” This term was applied to the Code of Federal Regulations over a decade ago and, since then, the number of pages in this monstrosity has soared to an untenable 85,000. To my knowledge, even the rigid UCMJ doesn’t contain punitive measures for soldiers who put on their left boot before the right one, or vice versa, because the idea is to put on BOTH boots, in whatever order you deem fit. Yet the CFR assumes the role of telling a sole-proprietor baker how many raisins must be present in a loaf of raisin bread. And, yes, this absurd regulation has been enforced.
But legislative malfeasance has been present since our 3rd Federal Congress, and rule by executive fiat reared its ugly head around the same era. Now, with the opinions of the High Court (and they must have been very high, indeed, to have issued such inanities) over this prior session, the absolute fact of judicial tyranny has been cemented.
“If the judiciary is the last resort in relation to the other departments of the government, then indeed is our Constitution a complete felo de se. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please. It should be remembered, as an axiom of eternal truth in politics, that whatever power in any government is independent, is absolute also; in theory only, at first, while the spirit of the people is up, but in practice, as fast as that relaxes. Independence can be trusted nowhere but with the people in mass. They are inherently independent of all but moral law …”
- Letter from Jefferson to Judge Spencer Roane, Nov., 1819
With the first three articles of our Constitution, for all intents and purposes, repealed in toto, and the Bill of Rights largely emasculated, what conclusion can we draw but that all these outcomes are not the product of mere happenstance?
“You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves…. When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.”
- Letter from Jefferson to Jarvis, Sept., 1820
When a body of government, which was itself created by the Constitution, places itself in the position of supreme arbiter over the meaning of the Constitution, can we not conclude that tyranny is afoot and the Republic is, in essence, lost?
Reasonable people should be able to agree on this point, and work together toward resolving this imbalance.
“The tenure by which the judges are to hold their places is, as it unquestionably ought to be, that of good behavior.”
- Madison: Federalist #39, 1788
But some, instead, have chosen to use the opportunity to their advantage in pursuing personal dislikes. And we’ll explore who they are, and where their motivations lie, in the next two installments.