ZGram - 11/24/2004 - "Sobran: How Tyranny Came to America" - Part III

[zgrams at zgrams.zundelsite.org]

Zgram - Where Truth is Destiny:  Now more than ever!

November 24, 2004

Good Morning from the Zundelsite:

[START]

How Tyranny Came to America:  Part III

The Civil War, or the War Between the States if you like, resulted 
from the suspicion that the North meant to use the power of the Union 
to destroy the sovereignty of the Southern states. Whether or not 
that suspicion was justified, the war itself produced that very 
result. The South was subjugated and occupied like a conquered 
country. Its institutions were profoundly remade by the federal 
government; the United States of America was taking on the character 
of an extensive, and highly centralized, empire. Similar processes 
were under way in Europe, as small states were consolidated into 
large ones, setting the stage for the tyrannies and gigantic wars of 
the twentieth century.

Even so, the three constitutional amendment ratified after the war 
contain a significant clause: "Congress shall have power to enforce 
this article by appropriate legislation." Why is this significant? 
Because it shows that even the conquerors still understood that a new 
power of Congress required a constitutional amendment. It couldn't 
just be taken by majority vote, as it would be today. If the Congress 
then had wanted a national health plan, it would have begun by asking 
the people for an amendment to the Constitution authorizing it to 
legislate in the area of health care. The immediate purpose of the 
Fourteenth Amendment was to provide a constitutional basis for a 
proposed civil rights act.

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

The big thing to recognize here is that the Court had become the very 
opposite of the institution Hamilton and others had had in mind. 
Instead of blocking the centralization of power in the federal 
government, the Court was assisting it.

The original point of the federal system was that the federal 
government would have very little to say about the internal affairs 
of the states. But the result of the Civil War was that the federal 
government had a great deal to say about those affairs -- in Northern 
as well as Southern states.

Note that this trend toward centralization was occurring largely 
under Republican presidents. The Democrat Grover Cleveland was one of 
the last great spokesmen for federalism. He once vetoed a modest 
$10,000 federal grant for drought relief on grounds that there was no 
constitutional power to do it. If that sounds archaic, remember that 
the federal principle remained strong long enough that during the 
1950s, the federal highway program had to be called a "defense" 
measure in order to win approval, and federal loans to college 
students in the 1960s were absurdly called "defense" loans for the 
same reason. The Tenth Amendment is a refined taste, but it has 
always had a few devotees.

But federalism suffered some serious wounds during the presidency of 
Woodrow Wilson. First came the income tax, its constitutionality 
established by the Sixteenth Amendment; this meant that every U.S. 
citizen was now, for the first time, directly accountable to the 
federal government. Then the Seventeenth Amendment required that 
senators be elected by popular vote rather than chosen by state 
legislators; this meant that the states no longer had their own 
representation in Congress, so that they now lost their remaining 
control over the federal government. The Eighteenth Amendment, 
establishing Prohibition, gave the federal government even greater 
powers over the country's internal affairs. All these amendments were 
ominous signs that federalism was losing its traditional place in the 
hearts, and perhaps the minds, of Americans.

But again, notice that these expansions of federal power were at 
least achieved by amending the Constitution, as the Constitution 
itself requires. The Constitution doesn't claim to be a "living 
document." It is written on paper, not rubber.

In fact the radicals of the early twentieth century despaired of 
achieving socialism or communism as long as the Constitution 
remained. They regarded it as the critical obstacle to their plans, 
and thought a revolution would be necessary to remove it. As The New 
Republic wrote: "To have a socialist society we must have a new 
Constitution." That's laying it on the line!

Unfortunately, the next generation of collectivists would be less 
candid in their contempt for the federal system. Once they learned to 
feign devotion to the Constitution they secretly regarded as 
obsolete, the laborious formality of amendment would no longer be 
necessary. They could merely pretend that the Constitution was on 
their side. After Franklin Roosevelt restaffed the Supreme Court with 
his compliant cronies, the federal government would be free to make 
up its own powers as it went along, thanks to the notion that the 
Constitution was a malleable "living document," whose central meaning 
could be changed, and even reversed, by ingenious interpretation.

Roosevelt's New Deal brought fascist-style central planning to 
America -- what some call the "mixed economy" but Hilaire Belloc 
called the Servile State -- and his highhanded approach to governance 
soon led to conflict with the Court, which found several of his chief 
measures unconstitutional. Early in his second term, as you know, 
Roosevelt retaliated by trying to "pack" the Court by increasing the 
number of seats. This power play alienated even many of his allies, 
but it turned out not to be necessary. After 1937 the Court began 
seeing things Roosevelt's way. It voted as he wished; several members 
obligingly retired; and soon he had appointed a majority of the 
justices. The country virtually got a new Constitution.


[END]

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