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The New/Old Common Sense and The Rights of Human Beings - Part 6
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During the period between 1934 and 1935, the Supreme Court issued a number of rulings which rendered unconstitutional several facets of Roosevelt's New Deal policy that had been intended to provide economic recovery for states and individuals hit hard by the Great Depression. The National Industrial Recovery Act, which enabled the President to negotiate directly with industry with respect to trying to come up with legally enforceable principles of fair economic practice, was one of the measures which were ruled unconstitutional.
Typical of these judgments against federal public policy programs was the argument of Chief Justice Charles Evans, writing on behalf of a unanimous Court in the 1935 case of Schechter Poultry v. United States. He indicated that such programs were in direct conflict with the Tenth Amendment.
Beginning around 1937, however, Roosevelt was able to stack the Supreme Court with jurists who were likely to be favorable to his public policy programs. This led to a series of decisions which effectively rendered Tenth Amendment arguments to be largely null and void.
For instance, in a Supreme Court judgment concerning New York v. United States (early to mid 1940s), the Court upheld (by a vote of six to two) the federal right to tax mineral waters obtained from state-owned property and sold to the public. Chief Justice Harlan Stone defended the majority ruling by arguing that "the national taxing power would be unduly curtailed if the State, by extending its activities, could withdraw from it subjects of taxation traditionally within it."
The foregoing remarks raise the following question: What, precisely, is meant by the Chief Justice's use of the phrase "unduly curtailed" in relation to the power of Congress to levy and collect taxes? What are the criteria for weighing and determining what constitutes a process of unduly curtailing the activities of the federal government with respect to taxation?
How much money does the federal government get to collect in the way of taxes? Are we to suppose that no matter how inordinate the appetites of the federal (or state) government may be with respect to its desire for money that the people operate under an obligation to supply tax monies which is without conditions, boundaries, or a need to be rigorously justified or empirically demonstrated?
Chief Justice Stone frets over the manner in which Congress' power of taxation might be "unduly curtailed" should states be able to become immune to the traditional practice of imposing taxes through which, in part, the federal government raises money. The Chief Justice seems far less concerned about the possibility that the actual needs of the people might be "unduly curtailed" through excessive, inappropriate, or injudiciously used forms of taxation.
There is something peculiar about the logic of an argument which claims a right to acquire money, via taxation of the people, in order to pay government debt or to provide for the general welfare while simultaneously placing obstacles, via the same taxation, in the way of the people's ability to pay their own debts or to contribute to the general welfare in their own manner. There is something peculiar about the logic of an argument which expects people to not live beyond their means while simultaneously enabling government to constantly push the envelope of living beyond its means that is, the reasonable ability of the people to fund government agendas and ambitions.
How does one measure the idea of being "unduly curtailed" with respect to the government's desire to tax the people? Why should priority automatically be given to the government's right to tax over the people's right to have control over their own lives by, among other things, determining for themselves what constitutes the meaning of being "unduly curtailed."
It is not the place of Supreme Court Justices to determine that governments have a right not to be "unduly curtailed" independently of examining the same issue with respect to the people's right not to be "unduly curtailed". To do so is to render people vulnerable to a form of involuntary servitude in relation to the desires, whims, and agendas of government. This is especially the case when such Justices do not provide a detailed and rigorous exploration into the structural character of the idea of being "unduly curtailed" with respect to the complex task of weighing the rights and duties of government over against the rights and duties of people.
According to Article I, Section 8, of the Constitution, the purpose for levying and collecting taxes is "to pay the debts and provide for the common defense and general welfare of the United States." If the taxes which are collected are not used to pay down the national debt, or if they are not used to provide for the general welfare (and pork barrel gratuities at taxpayer's expense for federal or state projects which benefit the few rather than the majority of people do not necessarily constitute providing for the general welfare), or if such taxes are not used to provide for the common defense in an efficient, reasonable, and collectively agreed upon manner, then, the taxes are being used for purposes other than those specified in the Constitution.
Now, who gets to decide whether, or not, the money collected for taxes is being judiciously and appropriately allocated with respect to the specified purposes of paying debts, providing for the common defense, and promoting the general welfare? Who gets to decide the priorities in such matters? Who gets to decide whether, or not, there are limits which should be placed on how much money the government has a right to raise through taxation and using the credit of the United States to borrow money which must be paid back primarily through the assessment of taxes on the people?
If the answer to all of the foregoing questions is that it is the government which should decide such matters or that it is the judiciary that should decide such matters, then, where does this leave the people? Or, if the only tool which the people possess is the ballot box, then, the way is open for tremendous destruction to be done to the people by the government and the judiciary in the years between the people's few opportunities to try to use the vote to change the direction of government.
Democracy should be about the people and not about governments. Unfortunately, this idea has been largely corrupted by a countless succession of governments and power elites who believe that democracy should serve their interests, ambitions and agendas rather than the needs of the people.
Frankenstein (the framers of the Constitution) has created his monster (government), and the monster has been let loose in the land to wreak havoc upon the countryside (the people). The villagers are rightfully upset and wondering how they might go about marching on the castle in order to bring under control the monster which is preying upon them, while the judiciary speaks in terms of its concern that the activities of the monster should not be "unduly curtailed".
Furthermore, with respect to the majority opinion penned by Chief Justice Stone in the aforementioned case of New York v. United States, Justices Rutledge and Frankfurter added that the Tenth Amendment entailed "no restriction upon Congress to include the States in levying a tax exacted equally from private persons upon the same subject matter."
Both the Justices who were arguing for the majority opinion in New York v. United States as well as those who were dissenting from that position have muddied the democratic waters. Contrary to what the majority opinion of the Court states, I am of the opinion that the Tenth Amendment does place restrictions upon the ability of Congress to tax the people because the capacity of government to tax people is contingent upon the people's willingness to be taxed, and if the people believe that Congress is exceeding the judicious exercise of its power to tax, then, Congress is seeking to exercise a power that the people did not give it, and in doing so, government is encroaching upon powers that have been reserved for the people.
In other words, in possessing the power to tax, Congress does not enjoy an absolute power. The scope of that power is to be determined by the people, and the people did not cast off the oppressive taxing powers of monarchies in order to become subservient to the oppressive taxing powers of the federal or state governments.
Congress has been given the power to tax contingent on the conditions that such taxes can be shown to be fair, reasonable, and judicious in the service of principles inherent in the Preamble, the promise of republican government, the Bill of Rights, and the remaining Amendments to the Constitution. The proper boundaries of governmental taxation are to be determined in accordance with the rights of the people and, as such, are derivative from, and not independent of, those rights.
The members of Congress even though they may be representatives of the people -- do not thereby have the authority to cede away the rights of the people. However Congress may desire to go about its business, its alleged supremacy in generating statutes cannot abolish, undermine, constrain, deny, or regulate the fundamental rights to which the people are entitled, and, consequently, when Congress encroaches on the rights of the people, it ought to recuse itself from deliberations because a conflict of interest exists between, on the one hand, Congress's activities as a body of government and, on the other hand, the rights of the people whom the members of Congress are supposed to be faithfully serving through upholding the provisions of all dimensions of the Constitution and not just the provisions of Article I, Section 8.
Justices Black and Douglas disagreed with the majority opinion in New York v. United States by arguing that: "If the power of the federal government to tax the States is conceded, the reserved power of the States guaranteed by the Tenth Amendment does not give them the independence which they have always been assumed to have." The operative phrase here is "assumed to have."
To be sure, most, if not all, states have assumed that they had certain rights and powers under the Tenth Amendment. It is in the very nature of governments whether local, state, or federal to seek to enhance the perimeters marking their sphere of influence with respect to the wielding of power.
Governments don't like giving up power or being informed that there are determinate limits to their power. They fear that if others have power then those others will seek to do unto them what they have sought to do unto others namely, control, regulate, restrict, enslave, use, harm, and exploit.
States, in the sense of governmental bodies, have long assumed that the Tenth Amendment is referring to them. The power elites who run state governments wish to leverage the Tenth Amendment in order to gain control over the people.
The states, in the sense of governmental bodies, try to argue that the agendas of state governments and the wishes of the people are one and the same. Consequently, they assume there really is no need to entertain the idea that the people, independent of government, may have powers which cannot be usurped by government
whether local, state, or federal.
Apparently, Justices Black and Douglas in their dissenting opinion were assuming that the Tenth Amendment was about state governments. Indeed, when one ignores the phrase "or to the people" it is easy to see how Supreme Court justices and state governments come to assume what they do. Or, when one has been conditioned by years of constant lobbying on the part of the power elite to believe that it is not possible to speak about "the people" unless they have been properly constituted into some form of government, then one understands why governments and jurists have difficulty in dealing with a concept such as 'the people' which existed long before such governments and courts came into being.
Even if the phrase "or to the people" did not appear in the text of the Tenth Amendment, it would be presumptuous of Justices Black and Douglas to suppose that the idea of a state refers only to a governmental body instituted in a given geographical location rather than refer to the people from whom the process of institution derives it authority and purposes. However, given that the phrase "or to the people" is embedded in the Tenth Amendment, one can only argue that what was really meant by such a phrase is a function of states' rights rather the rights of the people by becoming entangled in a rather pathological and tortured attempt to distort what is clearly stated and intended in a Bill of Rights which was added as a protection for people and not governments per se.
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A 1941 unanimous decision of the Supreme Court upheld the Fair Labor Standards Act in United States v. Darby. Voicing the opinion of the entire Court, Chief Justice Stone stated: "The power of Congress over interstate commerce 'is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution.' . . . That power can neither be enlarged nor diminished by the exercise or nonexercise of state power. . . . It is no objection to the assertion of the power to regulate interstate commerce that its exercise is attended by the same incidents which attended the exercise of the police power of the states. . . . Our conclusion is unaffected by the Tenth Amendment which . . . states but a truism that all is retained which has not been surrendered."
The foregoing reasoning reflected the opinion voiced by Justice John Marshall more than a century earlier. Another way of stating the same thing is to say that the Court led by Chief Justice Stone continued to perpetuate a tradition of more than a century which not only failed to provide a logically and historically defensible understanding concerning the meaning of 'or to the people', but seemed not to be able to grasp the idea that in a social compact between those, on the one hand, who wish to institute government (i.e., the framers of the Constitution) and, on the other hand, those who were skeptical of government and wary about the uses to which a formalized government would put the powers which it gained through becoming institutionalized by means of a Constitution, those who were skeptical toward, and wary of, government would never cede to the latter the right to do whatever it pleased.
The nature of the foregoing social compact means that the assertions of Chief Justice Stone to the contrary, the power of Congress over interstate commerce is not necessarily "complete". The nature of the social compact underlying the institution of the Constitution means that the power which Congress has over interstate commerce may not necessarily be "exercised to its utmost extent". And, while it may, or may not, be the case that the power which Congress enjoys over interstate commerce may not "be enlarged nor diminished by the exercise or nonexercise of state power," the power of Congress not only with respect to interstate congress but in relation to every single power which is listed in Article I, Section 8, may be enlarged or diminished in accordance with the powers which have been reserved for the people through the Ninth and Tenth Amendments, and which are inherent in the Preamble to the Constitution, and which are entailed by the constitutional promise of a republican form of government for the people of the various states, and which are expressed through the "involuntary servitude" clause of the Thirteenth Amendment.
People who have spent too much time in the toxic atmosphere of power and this tends to refer to almost all, if not all, Presidents, Supreme Court Justices, members of Congress, state governors, and state legislators that have served in public office over the years such people are inclined to misunderstand what the actual relationship of the Tenth Amendment is to the rest of the Constitution. Most of the aforementioned individuals are likely to suppose that it is the federal government which has priority in determining the meaning and scope of their powers, when, in truth, it is the people who have priority in all such determinations and not just in terms of their capacity to vote.
If a person were skeptical toward government and wary about the possible if not likely -- abuses of power by such a government (as were many people back in the late 1700s, as are many people today), why would such an individual (and this is likely to be the stance of the vast majority of people who are not employed by government) agree to the idea that it is the government which should have first right of refusal when it comes to dispensing with the right to exercise or determine the scope of any given power? The true democratic logic of the Constitution plus amendments is not to claim that whatever the government does not want in the way of power has been reserved for the people. Rather, the true revolutionary and democratic logic of the Constitution plus amendments is to stipulate that the powers of the Congress begin only when, where, and to the extent to which the people knowingly consent.
By exercising the powers of their Ninth and Tenth Amendment rights, it is the people who will tell the government what is to be reserved for the people above and beyond what the people have ceded to the government as trustees of the people's collective needs and wishes. The direction of the constitutional dynamic is from the people through the Ninth and Tenth Amendments to the federal and state governments and, then, back to the people again in the form of the right to exercise whatever powers are not being actively ceded to the federal government and which, consequently, are actively reserved for the people to use.
To say that "all is retained which has not been surrendered" is not a truism. It is an expression of the fact that before the federal government can act, the people must first engage in an act of trust by surrendering a certain amount of power to the government so that the government may serve the people as the people wish to be served and not as the government wishes to serve them. To say that "all is retained which has not been surrendered" is to refer to the fact that the Ninth and Tenth Amendments are about the right and power of the people to determine what will be surrendered, and how it will be surrendered, and the conditions under which it will be surrendered, and for what period of time it will be surrendered, and why it will be surrendered.
A loan of power is made by the people to the government through the Ninth and Tenth Amendments. As the issuers of the loan, the people are the ones who own the right to determine the conditions of that loan
not the government. Not only must the government use the loan for the stated purposes stipulated by the people, but the people have as many rights and powers reserved for them as they do not cede -- on a temporary and conditional basis -- to the government, including the right to revoke or call in the loan, as well as the right to change the conditions of such a loan as the people deem necessary in order to protect their fundamental rights, liberties, and republican way of self-governance.
The judiciary cannot tell the people what loans of power to make, or how to do this, or when to do this, or why they should do this. Moreover, the judiciary cannot tell the people what powers have been reserved for the people once the people have made a loan of power to the federal government.
This is all a matter of collective, negotiated settlement among the people. And, by collective, negotiated settlement, I am not necessarily referring to what elected representatives do while in office
there are republican ways of negotiating collective settlements which give expression to the will of the people other than through elected office (and more on this in the last part of this essay).
The loaning of power is not a legal matter, although the Supreme Court may have an opinion about whether such loaned power is being abused by the recipients of the loan. The loaning of power is not a function of government activity, although governments do come into being as a result of such a loan. The loaning of power is rooted in the qualitative nature of the willingness of a people to invest some degree of trust in individuals and/or institutions to serve as fiduciary agents on behalf of such people within certain prescribed limits which must not disadvantage the people with respect to the realization of the principles inherent in the Preamble to the Constitution and the promise of republican government.
According to Chief Justice Stone the powers enjoyed by Congress are such that Congress "acknowledges no limitations other than are prescribed in the Constitution." However, as previously indicated, the Constitution provides for manifold forms of limitation upon the Congress in the form of the Preamble, the guarantee of republican government, the Bill of Rights especially in the form of Ninth and Tenth Amendments, along with other protections afforded to the people such as in the form of the Thirteenth Amendment.
Congress is not entitled to pass laws which deny justice and fairness to the people. Congress is not entitled to pass laws which exploit the people. Congress is not entitled to pass laws which favor corporations over people. Congress is not entitled to pass laws which generate homelessness and poverty. Congress is not entitled to pass laws which place obstacles in the way of all people having access to affordable and accessible health care. Congress is not entitled to pass laws which degrade the environment. Congress is not entitled to pass laws which permit unhealthy and unsafe working conditions. Congress is not entitled to pass laws which favor owners over workers, or workers over owners, rather than passing laws which promote the welfare of both. Congress is not entitled to pass laws which are injurious to the consumer or place consumers in harm's way. Congress is not entitled to regulate commerce in a manner that does not provide -- in a rigorously and empirically demonstrable manner which is acceptable to the people -- for the common defense and the general welfare. Congress is not entitled to pass laws which permit the rights of the people to be lobbied away by vested, corporate interests. Congress is not entitled to pass laws which create uneven playing fields with respect to any individual, rich or poor, being able to run for office and to freely communicate with all the people about representative government. Congress is not entitled to pass laws which provide tax breaks, subsidies, and handouts to corporations which undermine the rights, liberties, powers, or immunities of the people. Congress is not entitled to entangle the people in wars which are fought to defend and advance corporate interests or ideologically-driven hidden political interests rather than the demonstrable interests of the people. Congress is not entitled to propose budgets which so excessively and disproportionately promote defense spending that many other needs of the people such as health care, a reliable and safe national infrastructure (e.g., highways, overpasses, bridges, and dams), education, paying down the national debt, livable wages, and similar quality of life issues are sacrificed to the no bid, cost-plus extravaganzas which are bestowed upon defense contractors.
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In United States v. Lopez (1995) the Supreme Court struck down a federal statute which prohibited possession of a gun either at or near to a school. In the process of striking down the statute as being unconstitutional, the Court rejected the federal government's contention that the Commerce Clause could be used to penalize individuals who possessed guns at, or near, schools because the possession of such guns was likely to undermine the ability of the national economy to function properly.
According to the judgment of the Court, if one were to accept the federal government's perspective concerning United States v. Lopez, this would effectively abolish any "distinction between what is truly national and what is truly local." Furthermore, to accept the government's position was tantamount to transforming Congress' power to regulate commerce into "a general police power of the sort retained by the States." In addition, the federal government's position would undermine a "first principle" of the Constitution that Congress is entitled to only certain enumerated and limited powers.
If the first principle of constitutional dynamics is that the Federal Government is an entity of enumerated and limited powers, then, the second principle of constitutional dynamics should be to affirm if one wishes to be consistent -- that state and local governments are political structures that also are limited in power. Like their federal cousins, local (i.e., state, county, city, and town) governments should be equally limited by the principles that have been conferred to the people through the Preamble to the Constitution, as well as being limited by the guarantee of republican government to the people of any given state (which extends beyond the issue of elected representation), as well as being limited by the First, Ninth and Tenth Amendments, as well as being limited by the "involuntary servitude" clause of the Thirteenth Amendment.
Furthermore, although the Court's central concern appeared to be that by accepting the rationale of the Federal Government that is, to regulate the possession of firearms by means of the Commerce Clause of the Constitution -- would, in effect, eliminate any "distinction between what is truly national and what is truly local", nevertheless, a more fundamental principle of democracy in America is that treating the Tenth Amendment as a bipolar divvying up of powers between federal and local governments entirely ignores the fact that the first ten amendments are primarily about protecting, securing, establishing, and promoting the rights of individuals not governments
federal or local.
Why is it that so many politicians and jurists understand the Tenth Amendment to be about securing states' rights with nary a mention of 'the people' despite the fact that "the people" are specifically mentioned in that amendment? Perhaps, this is because inherent in every form of government, no matter how well intentioned, is an inordinate inclination to encroach upon the rights, liberties, privileges, immunities, and powers which inherently belong to the people.
Governments of whatever kind don't like to talk about the rights and powers of the people. This makes them very nervous because when people start speaking about their inherent rights and powers, such talk threatens to shrink the sphere of power enjoyed by government.
Governments prefer to be preoccupied with what they believe, in an often delusional manner, to be the rights and powers which are reserved only to governments and through which the people might be subdued, regulated, exploited, and oppressed before the latter take it upon themselves to do that most dangerous of activities (from a politician's perspective) namely, to seek to assert and defend rights, powers, privileges and immunities which have been acknowledged as belonging to the people by the Constitution when that document is taken in its entirety
from Preamble to Amendments
rather than just being engaged through the self-serving perspective of those who are ensconced in elected or appointed office.
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The New/Old Common Sense And The Rights of Human Beings
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