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The New/Old Common Sense and The Rights of Human Beings - Part 4
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Some commentators note that the Supreme Court was not very consistent in its rulings concerning the Tenth Amendment during most of the first several decades of the Twentieth Century. For example, although the Supreme Court upheld the right of Congress to regulate interstate commerce and to provide for the general welfare through such statutes as the 1906 Pure Food and Drug Act, the Meat Inspection Acts of 1906-1907, the 1910 White Slave Traffic Act, the Phosphorous Match Act of1912, and the 1914 Harrison Anti-Narcotics Act (despite the fact that Tenth Amendment arguments frequently were voiced in opposition to such statutes), nonetheless, the Supreme Court also ruled in Keller v. United States that it was a violation of a state's Tenth Amendment rights for the federal government to seek to place restraints on the trafficking of women for immoral purposes.
A distinction needs to be made between, on the one hand, acts of Congress which seek to institute laws that are constructively designed to enhance the general welfare in ways with which the vast majority of people might agree – such as ensuring that foods and drugs are unadulterated, or that meat is fit for consumption and not likely to be injurious to those who purchase it, or that the construction of matches do not pose a threat to public safety, or that human beings (of whatever color or gender) should not be enslaved or treated as commodities to be trafficked to the highest bidder – and, on the other hand, acts of Congress which are intended to police morality and, potentially, violate the Ninth and Tenth Amendment rights of individuals or which potentially violate a person's right to be free from "involuntary servitude."
For example, rather than having Congress just pass laws which seek to abolish any form of the slave trade, and rather than having members of the Supreme Court enter into philosophical debates about whether the federal or state government should have the right to pass laws concerning the trafficking of women for immoral purposes, perhaps, Congress and the Supreme Court should busy themselves with enacting provisions which assist women – or anyone -- to never have to be in a position of becoming vulnerable to various forms of 'involuntary servitude' – whether in the form of slave trade or prostitution. If the tax money that is levied on citizens were used, among things, to directly assist women to improve their lives through education, starting a business, gaining stable employment, acquiring housing, having access to counseling services, and being protected from predators rather than having tax money just being used to fund the bureaucratic, law enforcement, court, and prison/jail systems which are perceived to be necessary to regulate the constitutional and the unconstitutional, then, perhaps, Congress and the Supreme Court might find more effective and efficient ways of helping people without simultaneously undermining the basic rights, liberties, and powers of the latter.
In many cases, the solutions which Congress poses in an attempt to fix what are perceived to be moral problems affecting the general welfare often turn out to be more onerous than are the problems which supposedly are being addressed. Rather than using tax monies to subsidize bureaucracies in an attempt to control and police issues of morality, maybe public money should be spent directly on helping people learn how to solve their own moral issues in a way that is beneficial to them but does not spill over into adversely affecting the rights and liberties and powers of others.
Furthermore, one of the reasons why the Supreme Court may not be consistent with respect to its various rulings on, for example, the Tenth Amendment is because the Justices who sit on the Court tend to use completely arbitrary and artificial theories of judicial review in order to generate judgments concerning the alleged meaning of the Constitution. Irrespective of whether a given Supreme Court Justice is a champion of some form of constructivism (e.g., seeking to balance competing interests) or a champion of some kind of originalism (e.g., the original intent of the framers of the Constitution) they are seeking to impose their legal philosophy onto the people … legal philosophies which have potentially destructive ramifications for the Ninth and Tenth Amendment rights of the people … legal philosophies that have potentially destructive ramifications for the right of people to be free of religions being established by the state (and many forms of legal philosophy amount to the establishment of a religion to which people must bow down and submit on penalty of hell fire and damnation -- i.e., state sponsored forms of punishment) … legal philosophies which have potentially destructive ramifications for the right of people to be free of all forms of "involuntary servitude" other than what is minimally necessary to live in peace with one another and secure domestic tranquility thereby … legal philosophies that have potentially destructive ramifications for the right of people to establish forms of republican governance which are not oppressively dependent on some Justice's theory of legal philosophy concerning what such republican governance must mean to the people who would like to negotiate with one another and establish their own mutually agreeable arrangements for giving expression to republican governance.
There is not one Supreme Court Justice -- living either in the present or in the past -- who can start from first principles of justice, powers, rights, and liberties concerning individuals and, then, go on to justifiably demonstrate (except to themselves perhaps) how or why such individuals should give up those principles, powers, rights, and liberties so that governments may make permanent wards of them through centralized forms of power (whether local, state, or federal) which mysteriously become entitled to tell those individuals how they must live their lives. People existed before governments, and, therefore, unless governments oppress the people, then, everything which a government can and cannot do is derivative from the consent of the people rather from government … and especially not from jurists who are working as agents of that government because they are part of the central structure of power … the very fact that it is the Executive Branch which selects them and it is the Senate which confirms them gives very clear indication that the process is controlled by centralized power from beginning to end.
Supreme Court Justices are not neutral moral entities who are umpiring the game of life in an impartial and fair manner for all concerned based on a rule book which everyone agrees upon. Supreme Court Justices are biased individuals who invent the rule book as they go along based on a variety of legal fictions – such as that corporations are 'persons' – which are rooted in their own personal legal philosophies of life … complete with assumptions, interests, likes, dislikes, vested interests, conjectures, hypotheticals, and artificial forms of legal logic.
Shamelessly -- and in a rather preemptory, imperialistic manner -- Supreme Court Justices hand down their edicts from on high as if they were dispensing indisputable wisdom and truth. But, like the individual hidden behind the curtain in the Wizard of Oz, the Justices fear (or, at least they would if they weren't so mesmerized and impressed with their own legal slights of hand, mind, heart, and soul) that the people will discover the bells and whistles of democracy which are being manipulated from behind a curtain are little more than a dog and pony show of individuals who, unfortunately, all too frequently have a pathological-like ambition to control others in order to satisfy their own self-serving ideas about legal philosophy … and this is true irrespective of whether these Justices are liberal, conservative, libertarian, independent, or something else.
It would be one thing if the members of the Supreme Court were to serve as consultants for the people in order to try to assist the people to devise constructive methods of republican governance in which ultimate control belonged with the people rather than with centralized structures of power such as Congress, the Executive Branch, or the Supreme Court. However, the foregoing is not the sort of service that the Supreme Court is interested in providing for the people.
Instead, the Supreme Court is interested in engaging in an oppressive wielding of power over the people … power which has been usurped surreptitiously, and sometimes not surreptitiously, from the people and, then, used against the very same people from whom it has been 'borrowed' in order to abolish, undermine, constrain, diminish, regulate, and control citizens to such a degree that the people no longer understand that the mysterious legerdemain performed by the Supreme Court is itself, largely, unconstitutional because what they do frequently violates, at a minimum: the establishment clause of the First Amendment (legal philosophy as naturalized religion); the provisions of the Ninth and Tenth Amendments; the "involuntary servitude" clause of the Thirteenth Amendment, and the guarantee of republican government to the people of the various states which is stated in Article IV Section 4 of the Constitution. Republican governance is not what the Supreme Court says it means, but, rather, republican governance is what the people say it means. Moreover, the judgments made by the Supreme Court often do violence to the principles inherent in the Preamble to the Constitution because their decisions do not form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, or secure the blessings of liberty for ourselves and our posterity in any way except in accordance with their own self-serving systems of arbitrary legal assessment which they feel justified in imposing on hundreds of millions of people. The extent of hubris inherent in such activity is so excessive as to defy calculation.
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In 1918, the Supreme Court seemed to give indication that perhaps the tide had turned with respect to cases bearing upon the claims of states concerning their alleged Tenth Amendment rights. More specifically, two years earlier, Congress had passed a statute which prohibited the interstate shipping of any products arising from factories or mines that entailed the labor of children under the age of fourteen. However, in ruling on Hammer v. Dagenhart in 1918, the Supreme Court judged the congressional act of 1916 to be unconstitutional.
The majority opinion read in part: "It must never be forgotten that the nation is made up of states, to which are entrusted the powers of local government. And to them and to the people the powers that are not expressly delegated to the national government are reserved." The word "expressly" had been inserted before the word "delegated" by Justice William R. Day.
Once again, the term "people" assumes a largely cosmetic role in judicial reasoning. Clearly, according to the majority decision, powers are entrusted to governments – whether local or federal. Yet, nothing is said about what the dynamics of the entrusting process involve in the way of permissions, conditions, duties, responsibilities, and constraints which circumscribe such a process, nor is anything said with respect to what constitutes a betrayal of that trust by government.
Although there are some commentators who believe that the 1918 Supreme Court decision in Hammer v. Dagenhart sent a shot across the bow of congressional presumptions concerning the reach of its powers, nevertheless, in truth, the 1918 ruling was just another round in the ping pong match which had been going on between different levels of a federalist form of government. Either the federal government was entitled to win a point or the state governments were entitled to win the point, but individuals outside the government were not even permitted to step up to the plate and take a swing, let alone win any constitutional points.
The role of the people was reduced to being one of a spectator of the grand democratic game played among governments and branches of government. If they wished, the people (or, at least, some of them) were extended the privilege of being able to vote for their favorite players on the All-Star ballot … sometimes referred to as a general election. Moreover, if any of the people wanted to be able to be invited to the 'big show' they had to come up with a lot of money and a covey of power patrons capable of convincing the owners of the two team league that other teams should be permitted to play in the game in an official capacity.
The Supreme Court continued on with its Tenth Amendment ping pong game by upholding a substantial federal tax on the use of narcotics in 1919, thereby awarding a point to Congress. However, three years later, in Bailey v. Drexel Furniture, the Supreme Court ruled unconstitutional Congress' attempt to introduce a second child labor law which Congress sought to leverage through the government's taxing power and the allegedly companion right to that taxing power to provide for the general welfare through such taxation.
The people, Congress, and the states were often left to assume the tasks of a reader of fortunes who studies the written dregs left by the Supreme Court in the bottom of its cup of power in an attempt to figure out what the future portended. The one thing which everyone could be sure of in all of this is that the fate of the people was largely sealed and, to all intents purposes, the people had no Tenth Amendment rights independent of government … the people were treated as eternal wards of the state who were incompetent to look after their own affairs and who could only survive if their alleged interests were looked after through the fiduciary role of government.
In the early 1920s, Congress began to pass legislation which sent various kinds of aid grants to the states to assist with an array of issues ranging from certain kinds of medical care to fire-prevention in state forests. On occasion, this form of aid was challenged by some sates as a violation of Tenth Amendment rights.
The Supreme Court tended to rebuff such challenges (for example, see Massachusetts v. Mellon, 1923) by arguing that grants in aid do not undermine the Tenth Amendment rights of states because such grant programs are optional and, consequently, the states may reject or accept them. However, eventually, over a period of some 30-40 years, the federal grant programs became so ubiquitous that state governments were often reduced to merely serving in a subsidiary and largely silent role in relation to the relentless power of federal bureaucracies.
In the beginning, states may have been completely free to reject or accept such grant programs. Nonetheless, over time, those programs were capable of distorting the political landscape and place constraints on how, or whether, states would approach different problems, as well as affect the degree of control which a state might have in seeking to come up with solutions to problems that occurred in a political environment which was, in many ways, landscaped in accordance with federal wishes.
In one sense, the congressional advocates of federal grant programs are like so many dope dealers who seem rather innocuous in the beginning, and, yet, before one knows it, states have become locked into a pattern of addiction to grants in aid. Once hooked, federal pushers tend to exact various kinds of political prices as a means of shaping the behavior of states in accordance with the public policy agendas of different branches of federal government.
One can say to the states that they are free to accept or reject the aid, just as one can say to an addict that she or he is free not to accept the drugs which are being offered to the addict. However, once the behavior of a state has been shaped in certain ways through the receipt of federal aid, the capacity of states to be able to freely exercise their Tenth Amendment rights often becomes adversely affected and undermined.
In addition, as with any distribution network of addictive substances – and both money and power can be extremely addictive – once federal grant money begins to flow into a state, the money and concomitant power (or the power and concomitant money) has a way of co-opting state officials. Instead of working on behalf of the people whom they are supposed to represent, those state officials who are co-opted by federal grant programs begin to serve the agenda and interests of the federal government rather than the needs and interests of the people within the state.
Quite frankly, I don't think the Supreme Court Justices thought their decision all the way through. Although on the surface it seems as if the federal grant in aid leaves states with all their options on the table, the truth of the matter is that the presence of power and money has a way of undermining actual freedom of choice – both for government officials and for ordinary everyday people.
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In a 1931 Supreme Court decision involving the United States v. Sprague, the Court stated:
"The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.''
I tend to disagree. In fact, I would maintain that the foregoing statement is a very good illustration of how many Supreme Court jurists live a life of delusion and fantasy far removed from the realities of life.
More specifically, if the Tenth Amendment added nothing to the Constitution, then, why was it added? Given that the Constitution was signed in 1787, four years before the ten amendments were officially added to the Constitution in 1791, if anything, the Tenth Amendment made manifest the concerns of those, such as George Mason of Virginia, who were reluctant to ratify the Constitution until the rights and powers of people had been adequately secured against the encroachment of governments … whether state or federal.
The Ninth and Tenth Amendments gave expression to the concern of many people at the time the Constitution was written and which had not been specifically addressed by the Constitution as originally drafted. Although the idea of 'republican government' had been mentioned in the Constitution, its meaning was vague and somewhat ambiguous.
While some may have felt that the protections entailed by the ten amendments were somehow inherent or implicit in the meaning of republicanism, nonetheless, the fact that many people insisted on adding the ten amendments to the Constitution as their price for ratifying the Constitution tends to indicate there was considerable distrust among the general population in relation to the likelihood that government would secure, protect, or promote the rights of the people over against the government. Indeed, if there is one common theme running throughout the history of man it is that governments often seek to oppress people. Fortunately, Mrs. Mason didn't raise any stupid children in this regard.
Some people might wish to argue that the founding fathers had good reason to introduce the Tenth Amendment into the Constitutional mix because of an anticipation that various modalities of power struggle were likely to take place in the future between a central government and various state governments. Apparently, the logic of such an argument is that in the light of past experience with the central, monarchical governments of Europe, in general, and England, in particular, the people needed some sort of protection against a central government which might, over time, seek to gain authoritative ascendancy in relation to the states.
However, there is a problem inherent in the foregoing sort of thinking. Relative to the people, any government – federal, state, or local -- is a body of centralized power whose tendency is to seek to extend its authority and control over the lives of individuals who are decentralized and, therefore, relative to established government, likely to be less powerful.
To be sure, because most of the thirteen colonies that were vying to become independent states were already run by power elites consisting of wealthy, propertied, and influential individuals within their respective geographical boundaries, the various members of those elite circles had vested interests which they wished to protect against the encroachment of a central, federal government. Consequently, arguing for some sort of Constitutional safeguards concerning their vested interests would be to their advantage.
Nevertheless, none of the ten amendments is an exercise in protecting the rights of those who are among the elite power movers within a given state – although their rights as ordinary individuals (as opposed to wealthy or propertied individuals) would be entailed by the Bill of Rights. None of the ten amendments is a study in protecting the rights of power elites who were, or would become, entrenched in the institutional business of state government.
The first ten amendments were intended to secure the rights of individual citizens apart from governmental bodies. Indeed, the first ten amendments were necessary to protect the people against the encroachment of all forms and levels of government … federal, state, and local.
So contrary to the beliefs of the jurist who wrote, in relation to the 1931 decision on United States v. Sprague, that the Tenth Amendment "added nothing to the instrument as originally ratified", the jurist in question seems to have failed to understand that the only reason many people were willing to ratify the Constitution was because, and only because, the ten amendments were added to secure the rights of individuals over against government. It was the rights of states conceived of as being made up of extra-governmental individuals – that is, the people – which were being protected and not the rights of states conceived as centralized bodies of power that often sought control over the very people that were to be protected by the Tenth Amendment and, indeed, often sought to use the Tenth Amendment to impose their will on the people of a given state.
The Tenth Amendment was not written just to emphasize the limited character of powers delegated to the federal government. The Tenth Amendment was written to indicate that any form of government deserved powers of only a limited nature.
The states – as governmental bodies -- were not the ones to whom the Constitution was primarily bequeathing whatever was left over after eliminating what had not been specifically assigned to the federal government nor prohibited to the states. The Tenth Amendment was a way of enshrining the fact that people were the ones for whom such powers were being reserved, not governments. The Bill of Rights – from beginning to end – is about securing, protecting, and advancing the rights, powers, privileges and immunities of people as opposed to institutions or bodies of government.
The Tenth Amendment is, and was, not about ensuring that the people have much more ready access to government policymakers through their local state representatives. The Tenth Amendment is about the decentralization of power … not in terms of what is being reserved by the Constitution on behalf of state governments but, rather, in terms of what is being reserved for the people independent of elected governments. In fact, elected government is but one of the tools among a whole set of possibilities through which people may exercise their right to republican government.
There were many people besides George Mason who opposed ratifying the Constitution of 1787 unless provisions were added that protected the people against the incursion of government. Among these were Patrick Henry, Tom Paine, Samuel Adams, Thomas Jefferson, Richard Henry Lee, George Clinton, Ethridge Gerry, Samuel Spencer and Robert Yates. [Interestingly enough, when Tom Paine came to realize that the American Revolution was being hijacked by a power elite he wrote a letter to George Washington which included the following: "The world will be puzzled to decide whether you are an apostate or an impostor; whether you have abandoned good principles or whether you ever had any."]
Each of the foregoing individuals, along with others, maintained that if appropriate protections were not added to the Constitution as originally drafted in 1787, there was a great risk that a powerful form of centralized government would emerge that would seek to undermine, curtail, limit, or abolish the individual liberties of the people. Collectively, such people were often referred to as anti-Federalists to distinguish them from individuals such as James Madison, Alexander Hamilton, James Wilson, and John Jay who were advocates of a strong, central government.
The terms are somewhat misleading. Some of the so-called anti-Federalists were actually federalists.
More specifically, federalism is a system of government which seeks to coordinate the activities of several levels of governance – for example, states and a national, central government. There were individuals among the so-called anti-Federalists who believed in federalism but championed a form of federalism in which state governments possessed significant powers which could not be usurped by the federal government, as opposed to those Federalists who accepted the idea of state governments but believed that the central government ought to have a degree or two of primacy beyond the powers of state and, as such, could constitute a strong modulating influence with respect to the direction which government took in the United States.
Nonetheless, there were also individuals who were classified as anti-Federalists who were not necessarily primarily interested in just the power struggles between federal and state governments but who also wanted to secure rights and protections for the people against government in general. When Patrick Henry said that he smelled the stench of monarchy in conjunction with the Philadelphia Convention -- during which the Articles of Confederation were thrown out and a new Constitution was drafted -- he was alluding to the fact that federalism of any species smacked of monarchical-like power which, quite correctly as it turns out, he feared would, sooner or later, be wielded against the common people to the tremendous disadvantage of the latter, and he wanted no part of it.
These latter sorts of individual were the authentic anti-Federalists. However, they might more appropriately have been described as proponents of profound skepticism with respect to centralized sources of power because they tended to distrust government of any kind -- local, state, or federal. Their fears were not just about a strong, federal government gaining ascendancy over state governments. They were concerned about any form of centralized power – local, state, or federal – which would seek to oppress the people, or to deny the people a true republican form of government, or who would seek to nullify and abolish the liberties of the people, or who would try to impose their own ideas onto the people with respect to what might be meant by ideas such as 'justice', 'domestic tranquility', 'general welfare', and 'the common defense'.
Indeed, Article I, Section 8 of the Constitution specifies that: "The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." As previously noted, this portion of the Constitution is sometimes referred to as the 'Elastic Clause' because Congress, as well as the Executive Branch with the advice and consent of Congress, and, as well, the judiciary through its frequently arbitrary, interpretive renderings of alleged Constitutional meaning that are generated during the judicial review process – all these branches of the federal government seek to use the aforementioned section of the Constitution to make incursions into, and encroach upon, a vast array of areas which are claimed to "provide for the common defense and general welfare of the United States."
In doing so, all of the branches of central government, either knowingly or unknowingly, conspire with one another to deny, undermine, restrict, obstruct, and effectively abolish basic rights that belong to the people. These include – as noted earlier – the 'establishment' clause of the First Amendment; the Ninth and Tenth Amendments which are intended to preserve and reserve an extensive reservoir of rights, powers, privileges, and immunities to the people; the provisions of the Thirteenth Amendment concerning involuntary servitude; the promise of republican government, and the principles of the Preamble of the Constitution which concern people and not governments.
Who should get to determine what is meant by the idea of providing for the common defense and general welfare of the people? While elected and appointed officials do give expression to one kind of republican government, this does not exhaust what is entailed by the notion of republicanism.
When non-governmental organizations gather together, why should these sorts of collective be considered to have less Constitutional standing than do elected officials with respect to the issue of determining what it means to provide for the common defense and general welfare? Or, when individuals assemble among themselves to discuss the problems of the day and seek to have some kind of influence on the decision process in relation to the members of Congress or with respect to the Executive Branch in conjunction with matters of common defense and general welfare, why should such individuals have any less Constitutional standing in these matters than do the elected and appointed members of Congress, the Executive Branch, or the Judiciary?
The Constitution guarantees to the people that they will have a republican form of government. It is not up to the government to place limits on what is meant by such a republican form of government. Moreover, it is not the prerogative of federal authorities (whether from Congress, the Executive Branch, or the Judiciary) to stipulate that the only form of republican government that will be allowed is one involving elected officials.
In fact, there are several other forms of republican government that have been operating within American for hundreds of years – forms of governance which have been enshrined in the Constitution. More specifically, both the idea of a trial by a jury of one's peers (Article III, Section 2, Clause 3), as well as the institution of a grand jury (Fifth Amendment), are republican forms of governance which do not involve having elected representatives controlling the decision-making process of the members of those different kinds of jury. Determining what constitutes the common defense and general welfare of the people is, to a very substantial degree and on a daily basis, left up to the members of these two non-elected, but fully representational, forms of republican government.
The issue of republican government cannot be reduced down to being a matter of how close the people are to government such that local government is likely to be held more accountable to the people than is a distant federal government. The issue of truly republican governance is that no form of centralized power can be trusted not to seek to oppress, abolish, or curtail the rights of people. The principle implicit in the Bill of Rights is that all forms of government are to be distrusted, … whether local, state, or federal.
The purpose of democracy is not to empower government to have control over the lives of people but to empower people to have control over their own lives, provided this does not prevent other people from possessing similar autonomy, and, as well, to empower people to have control over the life of government. The ultimate form of decentralization is when people, rather than governments, have the kind of power that cannot be usurped or taken back by any form of centralized power at whatever level.
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The New/Old Common Sense And The Rights of Human Beings
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