The Essence of Liberty Volume I. Liberty and History: The Rise and Fall of the Noble Experiment with Constitutionally Limited Government.

A Summary of: The Politically Incorrect Guide™ to the Constitution

by Kevin R.C. Gutzman

Compiled and Edited by

Dr. Jimmy T. (Gunny) LaBaume

Chapter 10: The Grand Wizard’s Imperial Court

The Supreme Court became FDR’s rubber stamp. Previously, it had formerly prevented both the states and Congress from doing what only the states had the right to do. Now, it allowed both the states and Congress to do what only the states had the right to do.

In National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), Jones and Laughlin had fired those who attempted to unionize. They claimed the National Labor Relations Act was unconstitutional and the lower courts agreed. But the Supreme Court backtracked from its own precedents and ruled that Congress could regulate the economy in a way previously thought impossible.

Helvering v. Davis (1937) involved the Social Security Act of 1935. Obviously, the Constitution contains no provision for the federal government to run a retirement program. Once again, the Court’s opinion was heavily influenced by sociological data that might be pertinent to a legislative body but certainly not for interpreting the Constitution.

The Court ruled that the General Welfare Clause (Article I, Section 8) permitted Congress to determine the taxes and spending that promoted the “general welfare.” Of course, this ignored the 10th Amendment and shifted power from the states to the federal government.

“Updating” the framers

Professor Bernard Schwartz speaks for most academics when he says, the Court was simply “adjust(ing) the intent of the Framers to contemporary needs” and the Court has continued to “adjust” (i.e. ignore) that intent.

United States v. Darby (1941) upheld the federal minimum wage and overruled Hammer v. Dagenhart so that poor families could no longer send their children to work.

Wickard v. Filburn (1942) concerned the Agricultural Adjustment Act of 1938 which had restricted the acreage of wheat farmers could grow. Roscoe Filburn had exceeded his allotment and planted enough wheat to feed his family and livestock. He had not intended any of it for interstate commerce. But, the Supreme Court ruled that the fact that he had not engaged in interstate commerce was immaterial. This was based on the assertion that Congress could regulate any activity that “exerts a substantial economic effect on interstate commerce.” By this measure, the Commerce Clause permits Congress to regulate “just about anything.” Furthermore, it renders the 10th Amendment a dead letter.

How the Constitution got “incorporated” rather than interpreted

In Darby the court had claimed that the 10th Amendment “states but a truism that all is retained which has not been surrendered.” But, nowhere in the Constitution is Congress “expressly delegated” the power to regulate every area of human activity. Using only the typical law school casebook, an aspiring lawyer cannot understand that a radical anti-constitutional transformation of the federal system was taking place—essentially a judicial coup d’état.

Probably the most famous footnote in the Court’s history was number four to its opinion in U.S. v. Carolene Products Co. (1938). It said that it was not necessary to consider a “presumption of constitutionality” in cases involving Bill of Rights provisions where “discrete and insular minorities” were involved. In other words, the Court had found a new role for itself as enforcer of the Bill or Rights and protector of discrete and insular” minorities.

This is reminiscent of the old laissez-faire use of the Due Process Clause whereby the Court had created the doctrine of “freedom of contract” that is not found anywhere in the Constitution and used that doctrine to justify invalidating a plethora of state policies the justices disliked.

In the new Bill of Rights cases, the Court would invent the concept of “incorporation.” Although unrelated to the Constitution, this concept would be used to invalidate countless types of state social policies. “Incorporation” was the deception the Court used to get around the historical fact that the Bill of Rights limited the powers of the federal government alone.

The 14th Amendment (when supposedly ratified) said that no state could deprive anyone of life, liberty, or property without due process of law. Thus, it made the Court’s favorite provisions of the Bill of Rights enforceable against the states.

One would think that justices who would enforce a doctrine that is counter to historical truth would be hooted down and replaced through the appointment process. But, three factors allowed the bacillus to work its way through the legal system: 1) contemporary legal education; 2) the ascendancy of the New Deal’s congressional and intellectual majority and 3) the appeal to the intellectuals of the type of government that the Incorporation Doctrine represents.

Legal education is much different today than it was in the early 20th century and before. Patrick Henry studied law by reading treatises in the science of law. The study was, by nature, historical and theoretical. But now, law students are almost always subjected to the case method which has no historical context. One prominent legal academic is on record as having said that reading The Federalist was “irrelevant” to the study of “constitutional law.” (And Gutzman sarcastically points out that he was right.) If judges make a false assertion, students have no way of recognizing that falsity and no tools for analyzing the judges’ claims. For this reason, legal training should not be confused with education.

Democrats dominated Congress nearly uninterrupted from 1933 to 1994. This means that the federal court system came to be stacked with “New Dealers.” The New Deal model of centralized government appeals to the socialist sympathies of most intellectuals.

Even “conservatives” (like Antonin Scalia) do not consider overturning the Incorporation Doctrine.

Using the 14th Amendment’s Due Process clause, the Court has redefined “church-state relations, race relations, federal-state relations, the rights of accused criminals, the freedom of speech and press and even sexual mores.” This intentional and ongoing effort to secularize American society has resulted in more and more of it being under the purview of the federal government.

How the Ku Klux Klan separated church from state

In Cantwell v. Connecticut (1940) the Court turned the 1st Amendment upside down. The case involved the prosecution of a Jehovah’s Witness for going door-to-door on behalf of his religion. Using the Incorporation Doctrine and the 14th Amendment, the Court ruled that Connecticut had violated his 1st Amendment rights. The Free Exercise Clause had become a tool for federal oversight of state policies.

In Everson v. Board of Education of Ewing Township (1947), Justice Hugo Black wrote for the majority. Black had been a pro-New Deal senator from Alabama elected with the active support of his fellow members of the Ku Klux Klan. In the 20th century, the Klan had added anti-Catholicism to its anti-Semitism and an important issue was opposition of government support for parochial (Catholic) schools.

Black claimed that the 1st Amendment erected “a wall of separation between church and state.” This is language not found in the Constitution. Nevertheless, he concluded, “In the words of Thomas Jefferson, the clause against establishment of religion by law was intended to erect ‘a wall of separation between Church and State.’”

This opinion was remarkably ignorant of history. But, that has not stopped it from being invoked ad nauseum. The 1st Amendment says nothing about the establishment of an official religion by the states. To the contrary, the purpose for the Amendment was to prevent Congress from establishing a religion for the whole united States as well as preventing it from interfering with the religious policy of the individual states.

The “leading role” that Black attributed to Jefferson was historically inaccurate because Jefferson had played no role in drafting or adopting the Establishment Clause. He was neither a member of the Congress that drafted the amendment nor of the Virginia General Assembly that ratified it. The “wall of separation” metaphor was coined by him in a letter written a decade after ratification. Said letter was not concerned with the issue of state establishment of religions. Instead, it was an explanation of why he did not issue a presidential declaration of Thanksgiving.

The most notorious decision stemming from Everson was Engle v. Vitale —the School Prayer Case (1962) wherein the Court considered the constitutionality of New York requiring school districts to recite a prayer each morning which said, “Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers, and our country.”

Thus, the only “religious beliefs” reflected by this innocuous prayer were that there was a god and that the students depended upon it. As a matter of fact, a traditional Christian might have objected on the grounds that it did not invoke the name of the Trinity.

Although Black had incorrectly assumed that Jefferson informed the Establishment Clause, he should have remembered that Jefferson had also written that all men were “endowed by their creator with certain unalienable rights.” If that reference did not offend Black’s sensibilities, why should New York’s prayer?

Thus the ban on prayer was essentially a judicial coup de main that amended the Constitution without going through the constitutional process—a process that was intentionally made difficult in order to protect the states. Back then the idea did not enter anyone’s mind that the Supreme Court justices would ignore the Constitution or Congress would let them get away with it.

Thus, nowadays public schools bear the imprint of an anti-Catholic Klansman who advanced the cause of left-liberal secularists.

The Supreme Court vs. Christianity

In Lemon v. Kurtzman (1971) the court announced what is known as the “Lemon test.” It said that state law must have a secular purpose, it can neither advance nor inhibit religion, and it must not “foster excessive church-state entanglement.” The problem is that the Court did not find any of that within the language of the Constitution. In other words, the Court was unconstitutionally making law which the ratifiers would have rejected.

Chief Justice Warren Burger’s opinion was a mixture of condescension and historical ignorance. Just as Earl Warren (his predecessor), Burger understood the Court as being a permanent constitutional convention that could decide issues purposefully left to the states.

In response to Engel v. Vitale, Alabama passed a statute in 1981 that authorized a “period of silence.” When this went to trial in federal district court ( Wallace v. Jaffree [1985]), the judge correctly pointed out that the 1st Amendment does not prohibit states from establishing religions. However, the Circuit Court of Appeals reversed that decision and declared the Alabama law “unconstitutional” based on the Lemon test and not the constitution. What they meant, in effect, was that the law was “inconsistent with Supreme Court precedent.”

The interesting thing about Wallace v. Jaffree was William Rehnquist’s dissent. He wrote: “It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history.” He noted that Jefferson had not had a role in writing or ratifying the Bill of Rights and went on to trace the 1st Amendments course through Congress. He pointed out that, in the end, the House passed the current language and rejected Madison ‘s proposal to give federal courts the power to enforce certain individual rights against state governments. (This is why the Incorporation Doctrine had to be invented by federal judges bent on overturning constitutional state laws.) In other words, the Establishment Clause did not bar Alabama from establishing a religion. In fact, its purpose was, in part, to prevent Congress from interfering with the states in their establishments.

“The issue was not whether Alabama should establish a state church. Instead, it was whether the people of Alabama should decide their state’s religious policies (as per the Constitution) or whether federal judges should decide and dictate their own policy preferences to the people of Alabama, despite the Constitution.”

These judicial excesses have never been reversed and remain what lawyers call “good law.” And, they can’t plead ignorance because Rehnquist’s opinion is right there in their casebooks.

On the basis of Everson, Engel, Lemon and Wallace the Court has since:

  • Struck down science curricula the justices didn’t like [Edwards v. Aguillard (1987)]
  • Banned the tradition of invocations at school commencements [Lee v. Weisman (1992)]
  • Held a city’s nativity scene unconstitutional but the menorah constitutional [County of Allegheny v. ACLU (1989)]
  • Negated a Texas statute exempting religious publications from taxation [ Texas Monthly, Inc. v. Bullock (1989)], and
  • Struck down a Massachusetts law banning the sale of alcoholic beverages within 500 feet of a church or school if the church or school objected [Larkin v. Grendel’s Den (1982)]

None of these stricken statutes had anything to do with the establishment of a national church. This demonstrates that the court just dislikes Christianity. Any religion is OK, as long as it is not Christianity.

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The Essence of Liberty: Volume I: Liberty and History: The Rise and Fall of the Noble Experiment with Constitutionally Limited Government (Liberty and ... Limited Government) (Volume 1)  The Essence of Liberty: Volume II: The Economics of Liberty (Volume 2) The Essence of Liberty: Volume III: A Universal Philosophy of Political Economy (Liberty: A Universal Political Ethic) (Volume 3) Environmental & Natural Resource Economics: The Austrian View  

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The Essence of Liberty: Volume I: Liberty and History: The Rise and Fall of the Noble Experiment with Constitutionally Limited Government (Liberty and ... Limited Government) (Volume 1)The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.

You might be interested in the other two volumes of this three volume set: The Essence of Liberty Volume II: The Economics of Liberty and The Essence of Liberty Volume III: Liberty: A Universal Political Ethic. 

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Land and Livestock International, Inc. is a leading agribusiness management firm providing a complete line of services to the range livestock industry. We believe that private property is the foundation of America. Private property and free markets go hand in hand—without property there is no freedom. We also believe that free markets, not government intervention, hold the key to natural resource conservation and environmental preservation. No government bureaucrat can (or will) understand and treat the land with as much respect as its owner. The bureaucrat simply does not have the same motives as does the owner of a capital interest in the property. Our specialty is the working livestock ranch simply because there are so many very good reasons for owning such a property. We provide educational, management and consulting services with a focus on ecologically and financially sustainable land management that will enhance natural processes (water and mineral cycles, energy flow and community dynamics) while enhancing profits and steadily building wealth.
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1 Response to The Essence of Liberty Volume I. Liberty and History: The Rise and Fall of the Noble Experiment with Constitutionally Limited Government.

  1. Reblogged this on Land & Livestock International, Inc. and commented:

    The Essence of Liberty Volume I: Liberty and History chronicles the rise and fall of the noble experiment with constitutionally limited government. It features the ideas and opinions of some of the world’s foremost contemporary constitutional scholars. This is history that you were not taught at the mandatory government propaganda camps otherwise known as “public schools.” You will gain a clear understanding of how America’s decline and decay is really nothing new and how it began almost immediately with the constitution. Available in both paperback and Kindle versions.

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