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So What Do You Think “Fundamental Transformation” Will Do? Just Ask Winston Churchill!

“A  love for tradition has never weakened a nation, indeed it has strengthened nations in their hour of peril.”  ~Sir Winston Churchill

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Why Congress Must Confront the Administrative State

By Robert Moffit, Ph.D. | April 2, 2012 | Heritage Foundation

Abstract: The triumph of the administrative state has been made possible by the emasculation of the legislative power. Washington’s problem is not merely federal spending and debt; it is the arrogance of centralized power. The time is therefore ripe for a major national discussion not only about the size of government, but also about the processes of government. Americans have a choice: to be governed by the rule of law, as hammered out in open legislative debate carried on by elected representatives who are directly accountable to us, or the rule of administrators who are most certainly not accountable to us. The rule of regulators is arbitrary and unaccountable government—exactly what the Founders wished to prevent in crafting the Federal Constitution.

Steve Kroft of CBS recently interviewed President Barack Obama. In response to a question on his job performance, the President ranked himself fourth among America’s chief executives (behind Lyndon Johnson, Franklin Roosevelt, and Abraham Lincoln) in the production of policy initiatives.[1]

Critics quickly ridiculed his self-assessment as narcissistic nonsense. They’re wrong.

President Obama is transforming American government. Few Presidents have enjoyed more success in enacting such a large policy agenda in such a short period of time.

• Within weeks of his inauguration, the President signed into law a major expansion of the State Children’s Health Insurance Program (SCHIP) and Medicaid.
• He quickly followed this up with the enactment of the American Recovery and Reinvestment Act of 2009 (the “stimulus” bill), adding $831 billion to our deficits.
• In 2010, Congress passed the Wall Street Reform and Consumer Protection Act (Dodd–Frank bill), providing for massive and far-reaching financial regulation.
• And on March 23, 2010, he signed into law the 2,800-page Patient Protection and Affordable Care Act (PPACA). It is the largest single piece of social legislation in American history, expanding federal control over one-sixth of the American economy and the personal lives of more than 300 million citizens.

Combine this massive legislative production with his zealous regulatory program. While Washington’s bureaucratic regime has been growing since the early 1900s, under President Obama its growth has exploded. In 2009 and 2010 alone, federal agencies issued 7,076 final rules.[2]

While the President insists that his regulatory output is less than that of President George W. Bush, a closer look reveals that his “major” regulations—those having an annual impact of at least $100 million each—were more numerous. Since President Obama took office in 2009, federal agencies have issued 75 major regulations with an annual additional cost to the economy of $38 billion.[3] Taken altogether, the Small Business Administration last year estimated that the total cost of America’s regulatory burden reached $1.75 trillion—more than twice what Americans pay in individual income taxes.[4]

The U.S. Departments of Agriculture, Commerce, Treasury, and Health and Human Services (HHS) and the Environmental Protection Agency (EPA) are at the center of this regulatory storm. They alone account for 43 percent of all rules in the federal pipeline.[5] Of the 43 major rules issued in 2010, 10 were based on EPA mandates.[6] With the President’s health and environmental initiatives alone, the Obama White House has dwarfed the regulatory agenda of its predecessors.

The national health law expands the administrative power of the HHS Secretary beyond anything previously attempted. The Secretary is required to act—indicated by the statutory language “shall”—1,563 times in the final language of the legislation, and 40 specific provisions of the law mandate or permit the issuance of regulations.[7] Senate Republican Policy Committee staff estimate that the new law creates 159 new agencies or entities, but the Congressional Research Service says that the exact number is “unknowable” inasmuch as certain powerful federal offices are created administratively without direct congressional authorization.

While the law’s schedule of implementation stretches out over eight years, the most far-reaching provisions—the mandates on individuals, employers, and states—take effect in 2014. Nonetheless, in less than two years, the national health law has already generated over 11,000 pages of rules, regulations, and guidelines and related paperwork in the Federal Register.

Just consider the law’s 15-member Independent Payment Advisory Board (IPAB). The powerful board will make its initial recommendations for detailed and specific Medicare payment cuts in January 2015, and the Secretary is empowered to put them into effect unless Congress enacts an alternative set of payment cuts to meet statutory Medicare spending targets.[8] The board’s automatic recommendations are subject to neither administrative nor judicial review, and the law further requires a three-fifths Senate majority to block IPAB’s prescriptions.

Peter Orszag, President Obama’s former director of the Office of Management and Budget (OMB), has observed that the extraordinary power of this new board is “the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve.”[9]

In 2010 alone, Congress enacted 217 bills that became law, but that same year, federal agencies issued 3,573 final rules covering a wide variety of economic activities.[10] Today, more than at any other time in our history, we are less and less governed by the rule of law, hammered out in legislative deliberations as the Founders intended, and more and more governed by the rule of regulation. We are subject to edicts promulgated by administrators—persons we do not know and will never know, persons protected by civil service law and tenure who are not accountable to us and will never be accountable to us. Nonetheless, the administrators’ detailed decisions have the force of law.

Regulation, as law, can and does directly affect whether or not we can start or run our businesses, determine how many persons we can or cannot afford to hire, how we may or may not use our land or dispose of our property. Not only do administrators publish thousands of pages of regulations, but our fellow citizens can sometimes also go to jail for violating them.

THE TRIUMPH OF THE ADMINISTRATIVE STATE

Ladies and gentlemen, we are witnessing the triumph of the administrative state, but that conquest is only possible because of the emasculation of the legislative power. The Founders made Congress the lawgiver, as clarified in Article I, Section 1 of the Federal Constitution. So much of their focus, reflected in The Federalist and other writings, was on how to check and balance the predominant legislative power, to channel and contain personal ambition and factional interest, to restrain potentially tyrannical majorities and safeguard the rights of beleaguered minorities, to secure personal liberty and protect the rights of property.

Though federal power has grown steadily since President Washington took the oath of office, today the relationship between the individual and the government is changing in a qualitative way. Americans are increasingly the subjects of an administrative regime rather than the free citizens of a democratic republic with a limited government.

Picking Winners and Losers. This steady transfer of legislative power to administrators has another inescapable consequence: arbitrary rule. The champions of administrative power invariably couch their arguments in appeals to expertise. The more complex the economic sector to be planned or regulated, the more that strict uniformity in the application of the rules becomes problematic.

In broad congressional grants of power, lawmakers give administrators wide latitude in the development and enforcement of the rules, so those who make the rules can also unmake them by granting waivers and exemptions. In the case of the health care law, HHS has already granted over 1,722 temporary waivers to certain businesses, unions, and gourmet restaurants in San Francisco that don’t have to comply with national coverage rules that apply to other companies throughout the country.

Treating similarly situated Americans differently, either as individual citizens or as citizens of a particular state, amounts to arbitrary rule; and arbitrary rule is inherently unjust.

THE NEED FOR A HIGHER LEVEL OF PUBLIC DEBATE

Today’s debate over the powerful bureaucracy is usually framed in terms of economic impact: How will federal rules affect economic growth and job creation, the price of gasoline or electricity, the cost of health insurance or the quality of medical care? While this level of debate is necessary, it is insufficient. Yes, we cannot neglect the trees, but it is really the health of the forest that matters.

The big question is this: How does this bureaucratic ascendancy affect ordinary Americans? My answer: Our very civic life is at stake, not just our prosperity.

The current trend is an affront to our self-government. The tacit assumption: Millions of us are not smart enough to make our own decisions for ourselves. Rather, we need to be closely supervised by officials. They will prescribe for us, for example, what kind of light bulbs and washing machines we should use. The provision of nutritional or caloric information on restaurant menus, or food items dispensed through vending machines, is now a federal mandate under Section 4205 of the Affordable Care Act.

Our supervision, though distant and impersonal, becomes more precise and detailed. We are to become increasingly dependent on government for our well-being. Today, almost half of Americans (48.5 percent) live in households that are getting some form of government assistance, largely funded from federal revenues, but nearly half (49.5 percent) of our citizens pay no federal income taxes. But today’s Progressives are still dissatisfied. In their view, the many are to be even more dependent on the few, and the few (the hated “rich,” however they are defined) should be paying even more in taxes than they do today.

Over time, these dynamics will change the character of our people, with corrosive consequences for our political culture and our economic prosperity. America will have a progressively larger class of dependent citizens, and that spirit of freedom and independence for which the Founders risked their lives and fortunes will be broken.

It does not have to be this way. Our task is to paint the big picture, the overarching framework of American civic life. The great medieval philosopher St. Thomas Aquinas, the “First Whig,” defines law as an edict of reason, promulgated by the sovereign for the common good of the community.[11] The law instructs citizens in their rights and duties, and thus has a teaching function. That being the case, as lawmakers, you must become teachers of the Constitution, carriers of our rich political culture of republican government.

What must we do to preserve and protect the constitutional traditions of limited government, individual liberty, the separation of powers, and the unique advantages of federalism? James Madison, “the Father of The Constitution,” was not a lawyer, but he was a Congressman. And in that role, he was also a teacher: He routinely employed his formidable talents in the education of his colleagues and fellow citizens on the first principles of government.

In my reading of the public mood, you also have an eager audience. More and more Americans hunger for the wisdom of the Founders, are reading their biographies, and seek to understand their tightly reasoned arguments for the adoption of our Constitution. They are also becoming aware that there is something deeply wrong with the way in which they are being governed and that this process deviates from the intentions of the Founders. They correctly sense that modern government is ever more distant and disconnected from them. They are right.

HOW WE GOT HERE

President Obama, like President Woodrow Wilson, is a real “Progressive,” but what does that mean? In his recent speech at Osawatomie, Kansas, he recalled President Theodore Roosevelt’s “New Nationalism.”[12] A genuine Progressive, TR favored the imposition of inheritance taxes and the income tax and became the standard bearer of the Progressive Party in 1912.

Reflecting that tradition, President Obama and his ideological allies are also vigorous champions of aggressive executive power.[13] Commenting on President Obama’s governance, New York Times columnist David Brooks predicts, “When historians look back on this period, they will see it as another progressive era…. It’s a progressive era based on faith in government experts and their ability to use social science analysis to manage complex systems.”[14]

Welcome to the “100 Years War” of American politics. Progressivism, after all, was America’s dominant political movement from 1890 to 1920. While the Progressives are identified with social reform and the reining in of corporate interests and trusts, they focused intensely on structural reform of government, particularly civil service reform and the democratization of our politics.

No modern American political movement has been more successful. Within a relatively short span of time, progressives backed the adoption of four transformative amendments to the Constitution. They fostered the income tax (Sixteenth Amendment) and secured direct election of U.S. Senators (Seventeenth Amendment); many backed Prohibition (Eighteenth Amendment); and they allied with the suffragettes (Nineteenth Amendment). In the several states, they broke the power of the political bosses and enacted initiative and referenda and the recall of public officials.

Long before the New Deal of the 1930s, Progressives concentrated power in Washington. With the backing of the Progressives, Congress created the Federal Reserve System (1913) and the Federal Trade Commission (1914). Federal employment soared.[15] During the Great War, Congress (in the Overman Act of 1918) gave President Wilson enormous discretionary power to consolidate and rearrange executive offices and agencies. Meanwhile, dissent, especially criticism of America’s entry into the war, was suppressed.

“Permissiveness,” the hallmark of the Sixties, was never welcome among Progressives, old or new. Under the rule of the new Progressives, if you want to just “do your own thing,” you won’t. You will do what you are told. If you think you can just “turn on, tune in, and drop out,” think again. You will be forced, for example, to buy government-approved health benefits—including federally certified abortifacients—or pay a fine. You will behave. You will conform. You will comply. You will not march to a different drummer.

The old Progressives were earnest and well-intentioned—old-fashioned “do gooders.” They were also stern and sober social reformers. During the Progressive Era, Congress suppressed the lottery business and interstate prostitution. They enforced prohibition on the sale and manufacture of alcohol,[16] and they imposed taxes on narcotics. Personal vice had become a public enemy. Professor Charles Beard, a leading Progressive historian, wrote in 1930: “Perhaps no country in the world, except Russia, places so many restraints on what is called ‘personal liberty,’ the right to do as one pleases in personal conduct and on the use of property.”[17]

Because Progressivism is an old and recurrent stream in our public life, its influence on public policy is so immense that it is a given: part of our national landscape. Progressive intellectuals generally had—and still have—a profound faith in social science, a conviction that scientific expertise was the key to social progress, especially in a social and economic order that was increasingly complex. Administration was to be the change agent. Again, Beard: “Thus, in our day, a new social science is being staked out and developed—the science of administration in a ‘great society.’ If the ‘great society’ is to endure, then it must make itself master of administration.”[18]

For Progressives, true liberty was not merely freedom from, or “negative” liberty, meaning freedom from arbitrary rule or tyrannical coercion, as embodied in the venerable natural rights tradition of the American Revolution. True liberty was the freedom to be, to act, to grow personally and to fulfill one’s potential.

This was “positive” liberty. It was to be achieved by the removal of economic and customary restraints, creating fairness in social and economic relations, liberating all persons, regardless of class or condition, from the unwelcome vicissitudes of the market and providing child care, education, universal health care, and pensions: in short, security. Justification for government action would be grounded, as Beard argued, not in power, but in service. This new liberty would be secured through broad-scale central planning and social and economic regulation.

Positive liberty, therefore, was to be achieved through the positive state. Think personal “growth” in a straitjacket.

Such ideological assumptions justified a federal role in health care and a national system of social insurance (based on the German model) for pensions in the Progressive Party platform of 1912. They explain the passion for centralization of power, particularly in the executive branch of national government, where scientific expertise would be able to work its will. “Progressivism,” wrote Professor Ralph Gabriel of Yale University, “was an aspect of the rising cult of science.”[19]

But Progressivism carries within it the seeds of contradiction. While Progressives long championed the democratization of our institutions, sunlight in government, and the elimination of the baneful influence of corporate interests, they clung stubbornly to a faith that public problems could be effectively solved through bureaucratic decision-making: little bands of experts appointed to an expanding number of government boards, commissions, or panels. That is at the heart of the Progressive conception of modern government.[20]

Populist rhetoric notwithstanding, the reality of Progressive rule is profoundly undemocratic, precisely because it takes crucial decision-making that directly affects the lives of millions of citizens “out of politics.” Thus, you have the administrative state: the rule of administrators.

Read the full article here.

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What if the Government Rejects the Constitution?

By Andrew Napolitano | April 11, 2012 | WND

 Andrew P. Napolitano, a former judge of the Superior Court of New Jersey, is the senior judicial analyst at Fox News Channel and anchor of “FreedomWatch” on Fox Business Network. His most recent book is “It Is Dangerous to Be Right When the Government Is Wrong.”To find out more about Judge Napolitano and to read features by other Creators Syndicate writers and cartoonists, visit www.creators.com.

Andrew Napolitano asks rhetorical questions about all 3 branches dishonoring charter

What if the government never took the Constitution seriously? What if the same generation – in some cases the same human beings – that wrote in the First Amendment, “Congress shall make no law … abridging the freedom of speech,” also enacted the Alien and Sedition Acts, which made it a crime to criticize the government? What if the feds don’t regard the Constitution as the Supreme Law of the Land?

What if the government regards the Constitution as merely a guideline to be referred to from time to time, or a myth to be foisted upon the voters, but not as a historic delegation of power that lawfully limits the federal government? What if Congress knows that most of what it regulates puts it outside the confines of the Constitution, but it does whatever it can get away with? What if the feds don’t think that the Constitution was written to keep them off the people’s backs?

What if there’s no substantial difference between the two major political parties? What if the same political mentality that gave us the Patriot Act, with its federal agent-written search warrants that permit unconstitutional spying on us, also gave us Obamacare, with its mandate to buy health insurance, even if we don’t want or need it? What if both political parties love power more than freedom? What if both parties have used the Commerce Clause in the Constitution to stretch the power of the federal government far beyond its constitutionally ordained boundaries and well beyond the plain meaning of words?

What if both parties love war because the public is more docile during war and permits higher taxes and more federal theft of freedom from individuals and power from the states? What if none of these recent wars has made us freer or safer, but just poorer?

What if Congress bribed the states with cash in return for their enacting legislation Congress likes, but cannot lawfully enact? What if Congress went to all states in the union and offered them cash to repave their interstate highways, if the states only lowered their speed limits? What if the states took that deal? What if the Supreme Court approved this bribery and then Congress did it again and again? What if this bribery were a way for Congress to get around the few constitutional limitations that Congress acknowledges?

Read the full article here.

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The Supreme Bureaucrats’ Decision on ObamaCare

By Scott Lazarowitz | April 6, 2012 | Lew Rockwell

Recently by Scott Lazarowitz: Can America’s Descent Possibly Be Reversed?

No, the U.S. Supreme Court’s decision on ObamaCare and the individual mandate will not matter, especially when, as protected by the Tenth Amendment to the U.S. Constitution, the states have a right to nullify the individual mandate – or all of ObamaCare if they want to.

The statists who rule over us, and their apparatchiks and propagandists, want to assert that the “Civil War settled everything” on issues of nullification and state secession. Those authoritarians suggest that President Abe Lincoln’s U.S. government war on the seceding states “settled” the states’ (and their individual inhabitants’) attempts at independence and the freedom to exercise their right to self-determination and the right to control their own lives.

The statists say that the federal government is supreme and the entire population must obey the will of our high-and-mighty federal rulers. But such an assertion goes against the principles of the American Revolutionaries.

Economic Historian Thomas Woods addressed these issues in his book, Nullification: How to Resist Federal Tyranny in the 21^st Century. In an article that appeared last year, Woods addressed specific points made by the critics of nullification.

Of course people have a right to buy or to not buy health insurance. And yes, that right to choose is just as inherent and God-given a right as are the rights to self-defense and free speech. Just because the Bill of Rights does not list such a right to choose to buy or not to buy health insurance does not mean that such a choice is not a right.

Some people believe that the federal government is empowered to tell the people what to do, and that federal bureaucrats are our bosses. But the reverse is true. The states had formed the federal government as an agent to act on behalf of the states’ interests. The federal government is employed by the people of the states. The people of the states are the federal government’s boss.The Bill of Rights could not possibly enumerate all the rights we as individual human beings have, or such a list would never end. This was addressed by the Ninth Amendment to the Bill of Rights, which states: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

And it was especially Lincoln’s war against the people that reinforced the reversal of that original relationship into a centralized, federal dictatorship. President Barack Obama’s communist-like recent Executive Order to seize all of America’s resources, including food, agriculture, water and labor resources during non-emergency peacetime was a huge step further down America’s descent into totalitarian tyranny.

Obama’s recent Executive Order – in addition to Obama’s command that all Americans must buy health insurance – was just the most recent in a long list of federal power-grabs since Lincoln’s War on Independence. Here are just a couple more examples:

• The order via legal tender laws that all Americans must use only U.S. government-issued currency as their sole medium of exchange. And this despite the fact that the Federal Reserve‘s central planning manipulators have distorted prices, caused massive swings in the business cycle, caused constantly high unemployment levels, and devalued the dollar and its purchasing power. Such authoritarian dictatorial policies have greatly diminished freedom and enhanced the bureaucrats’ power to steal from us poor slobs.
• The order that all Americans must participate in the federal government-run retirement scheme known as Social Security, against the will and better judgment of individuals. The promises made by the government could not possibly be kept in such an inherently flawed and treacherous scheme. It is immoral for anyone to interfere with an individual’s right to save, spend or invest one’s earnings or wealth however one wants.

Regarding the Supreme Court, just how has this gang of nine protected our liberty or our rights (particularly, as noted in the American Declaration of Independence, the rights to life, liberty, and the pursuit of happiness)?

Just recently the Supreme Bureaucrats approved of police strip-searching arrestees of minor technical violations such as parking tickets and so forth. In a typical judicial monopoly departure of common sense and in statist loyalty to police power, Justice Anthony Kennedy noted that “people detained for minor offenses can turn out to be the most devious and dangerous criminals.” Obviously, Kennedy isn’t aware of how local police neanderthals are known to arrest as many civilians as they can in the name of revenue collection quotas (and for jailer pervs to get off on power trips strip-searching innocent people).

In his apparent love for the TSA and his reference to all Americans as potential terrorists, Justice Kennedy went on to state that, “One of the terrorists involved in the Sept. 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Hmmm. So we therefore better let the police strip-search Grandma or some teenager on her way to a part-time job, to use Kennedy’s obediently childlike reasoning.

And last year, in an 8-1 decision, the Supreme Bureaucrats approved of police criminally breaking into private property, and without a warrant, based on an officer’s belief that residents are flushing marijuana down the toilet (“destroying evidence”). “Oooo, someone has marijuana in his own home, we better break in and get him!” This decision shows just how much government schooling has influenced even the highest public officials in the land.

The common sense opinion by Justices would be to nullify the actual law that police are illegally trying to enforce, such as laws against harmless and victimlessdrug possession. And this common sense approach should apply to the Court’s decision on ObamaCare as well.

I am assuming that a President Ron Paul’s Supreme Court Justices would not only strike down bad laws or policies such as ObamaCare based on violations of particular Constitutional protections, but that they would also outright nullify bad laws based on common sense, the Constitution notwithstanding.

After all, the U.S. Constitution itself has been a flawed document from the beginning, and the product of Hamiltonian centralists who got the Leviathan monstrosity they wanted, despite the Anti-Federalists’protests. As we have seen, from Lincoln to Wilson to Roosevelt to Bush/Obama, and from the Supreme Court, the FBI, the CIA and police departments all over America, the Constitution has been ignored time and again. As Hans-Hermann Hoppe has observed, the Constitution is itself “unconstitutional” in its multiple self-contradictions.

What the Constitution actually did was, instead of being a document whose rules and provisions were to protect the rights and liberty of the individual, it empowered a centralized, federal government to rule over the masses, and gave such an institution monopoly powers. Those monopoly powers go against the very core of the rights of the individual and the individual’s freedom to choose amongst various competitors in various industries, in health care, retirement planning, food and nutrition, and many other areas.

19^th Century individualist Lysander Spooner observed that the Constitution has “no inherent authority or obligation,” and that the Constitution’s alleged contractual obligations are to those who signed such a document, but not to others. (Members of the “Supreme” Court need to read more Lysander Spooner and less Barack Obama and Paul Krugman.)

Now, regarding Obama’s SovietCare and the idea of insurance mandates or government takeovers of the medical care industry (which has been Obama’s intention all along), Lew Rockwell noted that this socialized medicine is really “subsidizing sickness.” To me, health insurance discourages people to take care of themselves toward prevention of illnesses in the first place. An insurance mandate orders people to not act preventatively, and it implies that they should increase risky behaviors and lifestyles.

Unfortunately, rather than advocating personal responsibility and removing governmental restrictions on our medical freedom, politicians such as FDR, LBJ, Obama and Nancy Lugosi have gone the other way in diminishing our medical freedom and becoming more and more intrusive in our private personal matters.

But Hans-Hermann Hoppe had this better four-step solution to the health care situation in America:

1. Eliminate all licensing requirements for medical schools, hospitals, pharmacies, and medical doctors and other health-care personnel. Their supply would almost instantly increase, prices would fall, and a greater variety of health-care services would appear on the market…
2. Eliminate all government restrictions on the production and sale of pharmaceutical products and medical devices. This means no more Food and Drug Administration, which presently hinders innovation and increases costs…
3. Deregulate the health-insurance industry. Private enterprise can offer insurance against events over whose outcome the insured possesses no control. One cannot insure oneself against suicide or bankruptcy, for example, because it is in one’s own hands to bring these events about…
4. Eliminate all subsidies to the sick or unhealthy. Subsidies create more of whatever is being subsidized. Subsidies for the ill and diseased promote carelessness, indigence, and dependency. If we eliminate such subsidies, we would strengthen the will to live healthy lives and to work for a living. In the first instance, that means abolishing Medicare and Medicaid.

As Hoppe noted, “only these four steps, although drastic, will restore a fully free market in medical provision. Until they are adopted, the industry will have serious problems, and so will we, its consumers.”

But, regardless how the Supreme Bureaucrats decide, and in addition to our exercising our right to nullify federal dictates, the real solution to protecting ourselves from clueless bureaucrats and their totalitarian medical intrusions is this: DON’T GET SICK!

Scott Lazarowitz [send him mail] is a commentator and cartoonist, visit his blog.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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Doomed from the Start: The Myth of Limited Constitutional Government in America

By Thomas J. DiLorenzo | February 25, 2010 | Lew Rockwell

Recently by Thomas DiLorenzo: An Open Letter to Glenn Beck

After spending a lifetime in politics John C. Calhoun (U.S. Senator, Vice President of the United States, Secretary of War) wrote his brilliant treatise, A Disquisition on Government, which was published posthumously shortly after his death in 1850. In it Calhoun warned that it is an error to believe that a written constitution alone is “sufficient, of itself, without the aid of any organism except such as is necessary to separate its several departments, and render them independent of each other to counteract the tendency of the numerical majority to oppression and abuse of power” (p. 26). The separation of powers is fine as far as it goes, in other words, but it would never be a sufficient defense against governmental tyranny, said Calhoun.

Moreover, it is a “great mistake,” Calhoun wrote, to suppose that “the mere insertion of provisions to restrict and limit the powers of the government, without investing those for whose protection they are inserted, with the means of enforcing their observance, will be sufficient to prevent the major and dominant party from abusing its powers” (emphasis added). The party “in possession of the government” will always be opposed to any and all restrictions on its powers. They “will have no need of these restrictions” and “would come, in time, to regard these limitations as unnecessary and improper restraints and endeavor to elude them . . .”

The “part in favor of the restrictions” (i.e., strict constructionists) would inevitably be overpowered. It is sheer folly, Calhoun argued, to suppose that “the party in possession of the ballot box and the physical force of the country, could be successfully resisted by an appeal to reason, truth, justice, or the obligations imposed by the constitution” (emphasis added). He predicted that “the restrictions [of government power in the Constitution] would ultimately be annulled, and the government be converted into one of unlimited powers.” He was right, of course.

This is a classic statement of the Jeffersonian states’ rights position. The people of the free, independent and sovereign states must be empowered with the rights of nullification and secession, and a concurrent majority with veto power over unconstitutional federal laws, if their constitutional liberties are to have any chance of protection, Calhoun believed. The federal government itself can never, ever be trusted to limit its own powers.

How did Calhoun come to such conclusions? One answer to this question is that he was a serious student of politics, history, and political philosophy for his entire life, and understood the nature of government as much as anyone else alive during his time. He also witnessed first hand or quickly learned about the machinations of the sworn enemies of limited constitutional government in America: men such as Alexander Hamilton, John Adams, John Marshall, Joseph Story and Daniel Webster.

America’s first constitution, the Articles of Confederation and Perpetual Union, did a much better job of limiting the tyrannical proclivities of government than the U.S. Constitution ever did, and it did so while permitting enough governmental power to field an army that defeated the British Empire. The limits on government that the Articles contained outraged the advocates of unlimited governmental powers, such as Alexander Hamilton, which is why the “Perpetual Union” that was created by the Articles was abolished as all the states peacefully seceded from that union

The Founding Fathers of Constitutional Subversion

The constitutional convention was Hamilton’s idea as much as anyone’s. Upon arriving at the convention Hamilton laid out the plan of his fellow nationalists: a permanent president or king, who would appoint all governors, who would have veto power over all state legislation. This monopoly government would then impose on the entire nation a British-style mercantilist empire without Great Britain, complete with massive corporate welfare subsidies, a large public debt, protectionist tariffs, and a central bank modeled after the Bank of England that would inflate the currency to finance the empire.

Hamilton did not get his way, of course, thanks to the Jeffersonians. When the Constitution was finally ratified, creating a federal instead of a national or monopolistic, monarchical government, Hamilton denounced the document as “a frail and worthless fabric.” He and his Federalist/nationalist colleagues immediately went to work destroying the limits on government contained in the Constitution. He invented the notion of “implied powers” of the Constitution, which allowed him and his political heirs to argue that the Constitution is not a set of limitations on governmental powers, as Jefferson believed it was, but rather a potential stamp of approval on anything the government ever wanted to do as long as it is “properly” interpreted by clever, statist lawyers like Alexander Hamilton or John Marshall. Hamilton “set out to remold the Constitution into an instrument of national supremacy,” wrote Clinton Rossiter in Alexander Hamilton and the Constitution.

One of the first subversive things Hamilton did was to rewrite the history of the American founding by saying in a public speech on June 29 1787, that the states were merely “artificial beings” and were never sovereign. The “nation,” not the states, was sovereign, he said. And he said this while the constitutional convention was busy crafting Article 7 of the Constitution, which holds that the Constitution would become the law of the land only when nine of the thirteen free and independent states ratified it. The states were to ratify the Constitution because, as everyone knew, they were sovereign and were delegating a few express powers to the central government for their mutual benefit.

It was Hamilton who first invented the expansive interpretations of the General Welfare and Commerce Clauses of the Constitution, which have been used for generations to grant totalitarian powers to the central state. He literally set the template for the destruction of constitutional liberty in America the moment it became apparent at the constitutional convention that he and his fellow nationalists would not get their way and create a “monarchy bottomed on corruption,” as Thomas Jefferson described the Hamiltonian system.

Hamilton’s devoted disciple, John Marshall, was appointed chief justice of the United States in 1801 and served in that post for more than three decades. His career was a crusade to rewrite the Constitution so that it would become a nationalist document that destroyed states’ rights and most other limitations on the powers of the centralized state. He essentially declared in Marbury vs. Madison that he, John Marshall, would be the arbiter of constitutionality via “judicial review.” The Jeffersonians, meanwhile, had always warned that if the day ever came when the federal government became the sole arbiter of the limits of its own powers, it would soon declare that there were, in fact, no limits on its powers. This of course is what the anti-Jeffersonians wanted — and what has happened.

Marshall also repeated Hamilton’s bogus theory of the American founding, claiming that the “nation” somehow created the states. He amazingly argued that the federal government was somehow created by “the whole people” and not the citizens of the states through state political conventions, as was actually the case. In the name of “the people,” Marshall said, the federal government claimed the right to“legitimately control all individuals or governments within the American territory” (Edward S. Corwin, John Marshall and the Constitution, p. 131).In the case of Martin v. Hunter’s Lessee Marshall invented out of thin air the notion that the federal government had the “right” to veto state court decisions. Marshall also made up the theory that the so-called Supremacy Clause of the Constitution makes the federal government “supreme” in all matters. This is false: The federal government is only “supreme” with regard to those powers that were expressly delegated to it by the free and independent states, in Article 1, Section 8.

All of the Hamilton/Marshall nonsense about the founders having created a monopolistic, monarchical government and having abolished states rights or federalism was repeated for decades by the likes of Supreme Court Justice Joseph Story and Daniel Webster. Story was“the most Hamiltonian of judges,” wrote Clinton Rossiter. His famous book, Commentaries on the Constitution, published in 1833, could have been entitled“Commentaries on Alexander Hamilton’s Commentaries on the Constitution,” says Rossiter. He “construed the powers of Congress liberally,” i.e., meaning there were virtually no limits to such powers; and “upheld the supremacy of the nation,” i.e., of monopolistic, monarchical, and unconstitutional government. StoriesCommentaries provided a political roadmap for “the legal profession’s elite or at least among the part of it educated in the North during the middle years of the nineteenth century,” wrote Rossiter.

Story’s “famous” Commentaries are filled with phony history and illogic. On the Articles of Confederation, he wrote that “It is heresy to maintain, that a party to a compact has a right to revoke that compact.” But of course the Articles were revoked!

Secession of a single state would mean “dissolution of the government,” Story wrote. Nonsense. After eleven Southern states seceded in 1860—61 the U.S. government proceeded to field the largest and best-equipped army in the history of the world up to that point. It was hardly “dissolved.”

In a classic of doubletalk, Story admitted that “The original compact of society . . . in no instance . . . has ever been formally expressed at the first institution of a state.” That is, there was never any agreement by the citizens of any state to always and forever be obedient to those who would enforce what they proclaim to be “the general will.” Nevertheless, said Story, “every part should pay obedience to the will of the whole.” And who is to define “the will of the whole”? Why, nationalist Supreme Court justices like Joseph Story and John Marshall, of course.

Story admitted that social contract theories of “voluntary” state formation were mere theoretical fantasies. He also held the rather creepy and totalitarian, if not barbarian view that “The majority must have a right to accomplish that object by the means, which they deem adequate for the end . . . . The will of the majority of the people is absolute and sovereign, limited only by its means and power to make its will effectual.”

Contrary to the political truths expressed by Calhoun which have all proven to be true, by the way Story expressed the elementary-schoolish view that the appropriate response to governmental oppression should be only via “the proper tribunals constituted by the government”which would supposedly “appeal to the good sense, and integrity, and justice of the majority of the people.” Trust the politicians and lifetime-appointed federal judges to enforce their view of “justice,” in other words. That hasn’t really worked out during the succeeding 170 years.What Story is saying here is not that there should be a national plebescite on all policy issues that can express the “will of the majority.” No, as with Hamilton he adopted the French Jacobin philosophy that such a “will” was possessed in the minds of the ruling class, and that that class (the Storys, Hamiltons, Marshalls, etc.) somehow possessed “absolute” power as long as it has the military means to “make its will effectual.” Here we have the theoretical basis for Abe Lincoln’s waging of total war on his own citizens.

Story also repeated John Marshall’s fable that the Supremacy Clause created a monopolistic government in Washington, D.C. and effectively abolished states’ rights, along with the equally ridiculous myth that the Constitution was magically ratified by “the whole people”(presumably not counting women, who could not vote, or slaves and free blacks).

Another famous and influential subverter of the Constitution was Daniel Webster, who repeated many of these same nationalist fables during his famous U.S. Senate debate with South Carolina’s Robert Hayne in January of 1830. This is a debate that Hayne clearly won according to their congressional colleagues, and the media of the day, although nationalist historians (a.k.a., distorians) have claimed otherwise.

Webster then presented a totally false scenario: “One of two things is true: either the laws of the Union are beyond the discretion and beyond the control of the States; or else we have no constitution of general government . . .” Huh? All the laws? Are the people to have no say whatsoever about laws they believe are clearly constitutional? Apparently so, said Daniel Webster.The first Big Lie that Webster told was that “the Constitution of the United States confers on the government itself . . . the power of deciding ultimately and conclusively upon the extent of its own authority.” No, it does not. John Marshall may have wished that it did when he invented judicial review, but the document itself says no such thing. As Senator John Taylor once said, “The Constitution never could have designed to destroy [liberty], by investing five or six men, installed for life, with a power of regulating the constitutional rights of all political departments.”

The a-historical fairy tale about the Constitution being somehow ratified by “the whole people” was repeated over and over by Webster. His strategy was apparently to convince his audience not by historical facts but by repetition and bluster. “The Constitution creates a popular government, erected by the people . . . it is not a creature of the state governments,” he bellowed. Anyone who has ever read Article 7 of the U.S. Constitution knows that this is utterly false.

Article 3, Section 3 of the U.S. Constitution clearly defines treason under the constitution: “Treason against the United States shall consist in levying war against them, or in adhering to their enemies, giving them Aid and Comfort.” Thus, treason means levying war against“them,” the sovereign states. This is why Lincoln’s invasion of the Southern states was the very definition of treasonous behavior under the Constitution. Had the North lost the war, he could have been justifiably hanged.In fine French Jacobin fashion, Webster asked, “Who shall interpret their [the peoples’] will? Why “the government itself,” he said. Not through popular votes, mind you, but through the orders, mandates, and dictates of “the government itself.” The people themselves were to have nothing to do with “interpreting” their own “will.”

Webster attempted to re-define treason under the Constitution by claiming that “To resist by force the execution of a [federal] law, generally, is treason.” Thus, if the federal government were to invade a sovereign state to enforce one of its laws, a clearly treasonous act under the plain language of the Constitution, resistance to the invasion is what constitutes treason according to Webster. He defined treason, in other words, to mean exactly the opposite of what it actually means in the Constitution.

Then there is the elementary-schoolish faith in democracy as the only necessary defense against governmental tyranny: “Trust in the efficacy of frequent elections,”“trust in the judicial power.” Well, we tried that for decades and decades, Daniel, and it didn’t work.

All of these false histories and logical fallacies were repeated by other nationalist politicians for decades. This includes Abraham Lincoln, who probably lifted his famous line in The Gettysburg Address from this statement by Webster during his debate with Hayne: “It is, Sir, the people’s Constitution, the people’s government, made for the people, made by the people, and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law.” Of course, they did not.

Hamilton, Marshall, Webster, Story, and other nationalists kept up their rhetorical fog-horning for decades, trying to convince Americans that the founding fathers did, after all, adopt Hamilton’s plan of a dictatorial executive that abolished states rights and was devoted to building a mercantilist empire in America that would rival the British empire. But their rhetoric had little or no success during their lifetimes.As Lord Pete Bauer once said in commenting on the rhetoric of communism, whenever one hears of “the people’s republic” the “peoples’government,” etc., it is a sure bet that the people have nothing whatsoever to do with, or control over that government.

New Englanders plotted to secede for a decade after Thomas Jefferson was elected president in 1800; all states, North and South, made use of the Jeffersonian, states’ rights doctrine of nullification to oppose the Fugitive Slave Act, protectionist tariffs, the antics of the Bank of the United States, and other issues up until the 1860s. There was a secession movement in the Mid-Atlantic states in the 1850s, and in 1861 the majority of Northern newspaper editorialists were in support of peaceful secession (see Northern Editorials on Secession by Howard Perkins).

The false, nationalist theory of the American founding was repeated by Abraham Lincoln in his first inaugural address (and praised decades later by Adolf Hitler in Mein Kampf, wherein Hitler mad his case for abolishing states’ rights and centralizing all political power in Germany). In the same speech Lincoln threatened“invasion” and “bloodshed” (his words) in any state that failed to collect the newly-doubled federal tariff tax. He then followed through with his threat.

The only group of Americans to ever seriously challenge this false nationalist theory, Southern secessionists, were mass murdered by the hundreds of thousands, including some 50,000 civilians according to James McPherson; their cities and towns were bombed and burned to the ground, tens of millions of dollars of private property was plundered by the U.S. Army; Southern women, white and black, were raped; and total war was waged on the civilian population. This is what finally cemented into place the false, Hamiltonian/nationalist theory of the American founding, for the victors always get to write the history in war. Government of the people, by the people, for the people, is “limited only” by the state’s “power to make its will effectual,” as Joseph Story proclaimed. The technology of mass murder in the hands of the state finally made this will “effectual” in the first half of the 1860s. Americans have been mis-educated and misinformed about their own political history ever since. It is this mis-education, this false theory of history, that serves to prop up the Hamiltonian empire that Americans now slave under.

[Hat Tip: Gunny G]

Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book is Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution — And What It Means for America Today.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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