Skip to comments.Birth of Big Brother: How the Court deep-sixed the Tenth (Amendment)
Posted on 03/03/2002 2:20:03 PM PST by The Raven
Birth of Big Brother: How the Court deep-sixed the Tenth
by George F. Smith (March 2, 2002)
Don't make the fatal mistake of believing government can't do anything right. No organization could expand to the point of commanding a budget in excess of two trillion dollars and be completely inept -- not even the bumbling bureaucracy in Washington. Although the state relies on the threat of force to fund that budget, most Americans support big government and willingly pay their taxes.
So what is it Big Brother's doing right?
"Educating" us. Compulsory, taxpayer-financed schooling carefully corrupts the foundations of a free society. Government schools invariably preach the primacy of the group over the individual, thus destroying the concept of individual rights. 
How did we get saddled with government schools? Statists can point to no less an enemy of tyranny than Jefferson himself, who thought government should provide rudimentary education to ensure that people were smart enough to safeguard their freedom.  Although the first tax-funded school appeared in Boston in 1635, compulsory education didn't take root until 1852, when Massachusetts passed a law forcing every child to get an education. Federal meddling in government school curriculum started in 1958, in reaction to another "crisis" -- the Soviet Union's launch of Sputnik.  Though President Reagan decried the mediocrity of public schools in 1982, he also cited a Gallup Poll showing most Americans believed the fix was to throw more taxpayer dollars at the problem. 
That had to be an education establishment "moment" if ever there was one.
But we're a country that respects the rule of law, and the supreme law of the land does not assign government the task of educating us.  Nor does it allow government to spread itself all over our lives the way it's doing now. If the Tenth Amendment means what it says -- that the powers "not delegated to the United States by the Constitution" are reserved to the states or to the people -- how did Big Brother get so big, legally?
If we open our history books, we'll find that Chief Justice John Marshall, in 1819, issued the first landmark ruling corrupting the philosophy of limited government. It "is the duty of the court to construe the constitutional powers of the national government liberally," Marshall wrote, in supporting the constitutionality of a national bank. 
Although a national bank didn't appear to be on the minds of the Framers, Marshall reasoned, "[i]t was not their intention, in these cases, to enumerate particulars. The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited. Congress is authorized to pass all laws 'necessary and proper' to carry into execution the powers conferred on it." 
Following Marshall's logic, if the government's "authorized purpose" is to stop terrorism, for example, it may "pass all laws 'necessary and proper'" to eliminate terrorists. Since a national ID card law is not "specially prohibited," there are no legal barriers to stop Congress from passing it. And when ID cards don't do the trick, we move on to prefrontal lobotomies, because that, too, could be construed as "necessary and proper."
In spite of Marshall's constitutional inversion, the growth of state power in the 19th century was fairly moderate. After the War of Secession, our mostly free society produced two notable results: successful people and those who hated them. The haters found moral relief in altruism -- the doctrine of sacrifice, that the haves owed something to the have-nots -- and political opportunity in statism, that the government has a duty to redistribute wealth to achieve "social justice."
Under pressure to "do something" about economic polarities, government in 1913 passed a "soak the rich" income tax amendment and created a new national bank, the Federal Reserve System.
After the stock market crash in 1929, statists blamed unbridled capitalism for the economic misery government created through the Federal Reserve's manipulation of the money supply.  Roosevelt offered the country a stronger dose of the same interventionist poison, but sold it to the public as medicine.
There was only one problem: the Supreme Court found many of his measures lacking in constitutional authority. So in March, 1937, Roosevelt had a little chat with America. He told the people he was trying to save them, but the Court was getting in his way. He said it was getting in his way unconstitutionally. He suggested that maybe Justices should be forced to retire at age 70, which would clear six of them from the bench immediately, and that maybe he would push for amendments to the Constitution if the Court didn't change its position. 
It worked. The Court capitulated. A few weeks after Roosevelt issued his threat, the Court upheld a minimum wage law in West Coast Hotel vs... Parrish (1937), clearly acting against precedent. 
The Tenth Amendment had been unofficially repealed. Instead of rule by law, we became a country ruled by demagogues and the favors they dispense or withhold.
Walter Williams, in reviewing Charlotte Twight's new book, "Dependent on D.C.," which appears to offer many insights into the history of government growth , quotes the author as saying we must commit "our lives, our fortunes and our sacred honor" to the effort of regaining our liberty.
Our founders made the same commitment, but future generations lost it.
For all their brilliance, our founders never completely threw off the clutching cloak of altruism, the doctrine that man exists to serve others. This is grotesquely at odds with our founding philosophy of man's inalienable rights, that each man is an end in himself and not a sacrificial object of society. If we let self-sacrifice be our moral ideal, we've given government the means of enslaving us, and liberty, to the extent it exists, will be by permission, rather than right.
 Rand, Ayn, "Capitalism: The Unknown Ideal", New American Library, New York, 1962.
 http://etext.virginia.edu/jefferson/quotations/jeff1370.htm - Jefferson and state-supported education
 http://www.goodschoolspa.org/students/index.cfm?fuseaction=history - A timeline of public education in America
 http://www.ed.gov/pubs/NatAtRisk/risk.html - A Nation at Risk
 http://www.house.gov/Constitution/Constitution...html - U. S. Constitution
 http://www.tourolaw.edu/patch/McCulloch/ - McCulloch vs. Maryland
 Rand, Ayn, "Capitalism: The Unknown Ideal", New American Library, New York, 1962.
 http://www.hpol.org/fdr/chat/ - Roosevelt fireside chat, March 9, 1937
 http://www.unt.edu/lpbr/subpages/reviews/leuchten.htm - The Supreme Court Reborn
 http://capitalismmagazine.com/2002/february/ww_sheep.htm - A Nation of Sheep: Dependent on D.C.
..This is grotesquely at odds with our founding philosophy of man's inalienable rights, that each man is an end in himself and not a sacrificial object of society. If we let self-sacrifice be our moral ideal, we've given government the means of enslaving us, and liberty, to the extent it exists, will be by permission, rather than right.
A Freepathon Cheer
Thank you. We now return you to your regular postings.
"I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." -- Thomas Jefferson to Archibald Stuart, 1791.
"[Oppose] with manly firmness [any] invasions on the rights of the people." -- Thomas Jefferson: Draft Virginia Constitution, 1776. Papers, 1:338
Quote of the week. People (even many on this forum), have become "freedom challenged".
The very meaning of pathetic is when people will work literally half their lives for the government and still be happy as a pig in a mudhole.
I'd be shocked if this thread got anyhwhere near 50 responses.
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The world and its people have been in the clutches of war-states for over half a century.
Some sort of socialist rhetoric is essential in each instance to numb the mind and condition behavior.
In America this rhetoric is styled 'progressive'. Or sometimes,'politically correct'.
Only 'reactionaries';i.e., enemies of the modern state, will bump this thread. But there may be more than 50. ;^)
Quote: "So long as Americans can be convinced that they need to apply for
a privilege to exercise a right they can expect to be denied their rights"
I suspect that there are many more, who choose to remain quet and wait. If we should not underestimate the govt., then they had better not underestimate the aroused anger of the American people. It's coming.
"Government is not reason, it is not eloquence -- it is force." -- George Washington
That one deserves two thumbs up.
Well....if we're starting a revolution to overthrow the government and put it back the way it was....count me in
But whether we like it or not it requires a Republican president and a Republican congress to appoint them.
Sad but true.
So in March, 1937, Roosevelt had a little chat with America. He told the people he was trying to save them, but the Court was getting in his way. He said it was getting in his way unconstitutionally. He suggested that maybe Justices should be forced to retire at age 70, which would clear six of them from the bench immediately, and that maybe he would push for amendments to the Constitution if the Court didn't change its position.
HA!! That's rich. The court helped deep six the tenth, but it was a Republican president, and you know who I'm talking about, that destroyed any chance of this nation keeping the ideals of what the Founders envisioned.
Now I'm not going to turn this into one of 'those' threads, and I am not by any means kicking on some Republicans in office. However, the Republican party is quickly turning into the centrist party. Evidence the crowning of Liddy Dole here in NC. 10 years ago, if someone like her ran on the Republican ticket in this state, she wouldn't even get 1% in the primaries. Today, the RNC has dubbed her 'THE' Republican candidate even before the primary. They've even started sponsoring ads attacking the Democrats without even a mention of who she is running against in the primary.
As for the Tenth Amendment, to return the power back to the states(where it rightly belongs) would mean in fact to overturn the 14th, 16th, and 17th Amendments. And the loss of power at the federal level would be devastating to bureaucracy built up in the past 100 or so years by both parties. They would be sitting around twiddling their thumbs with no real power within the US except with the occasional interstate commerce bills, passing a random Treasury bill, and passing any defense bills that came across their desks
The other problem is that it would validate the argument made so many years ago by my ancestors that the states have the right to do whatever they choose is in the best interests of their respective citizens. While I might wish and hope for this day, I know that it will never fully come(at least not in my lifetime), because men in Washington would not relinquish the power that they have built for themselves over the years
I am not kicking on the Republican party here so much as rallying for returning the party back to its ideals, that of conservative leadership guided by the tenets of the Constitution
"Government is not reason, it is not eloquence, it is force; like fire, a troublesome servant and a fearful master. Never for a moment should it be left to irresponsible action."
It seems to me that the government is, and has been, a fire burning out of control for some time now. We (Americans in general) just don't have the will to try and stop it.
It has been left unattended and unchecked to the point where there's only a few that even care enough to speak out against it. Most people only see and feel the warmth that the fire provides, they just don't realize the fire has the absolute power to destroy them.
A biblical Christian view doesn't treat the virtues (self sacrifice, restrained government) as an either-or.
Speak for yourself.
Hmmm....it did lose steam, didn't it? Those quotes up top are Presidential material.
Ah, yes, the Court-packing incident.
Notice the timing? Right after FDR had been sworn in for his second term, which he'd won by a landslide. Nothing like a landslide to give a guy delusions of his own grandeur, eh? Remind anyone of Lyndon Johnson?
Talk about trying to use some of your political capital to buy yourself a big one!
What'd you call me?
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