Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (27 page)

Wilson believed the president should be
the tribune of the people, largely unrestrained by the Constitution's limits on presidential authority. And the manifest trend of
the twentieth century, supported by intellectuals and populist nationalists, was the consolidation of the power of the federal
government at the expense of state sover eignty. In 1913 the Constitution was amended so that U.S. senators were
elected directly by the people (rather than by the state legislatures), and
Congress was given the power to levy income taxes. The First World War
exacerbated this centralizing trend.

American Law, Anyone?

The Supreme Court's 1918 decision that
federal conscription is constitutional was
explicitly based on contemporary practice
in the German Empire, Austrian Empire,
Russian Empire, Turkish Empire, British
Empire, Japanese Empire.... Do you see a
theme?

The Court reflected the nationalistic, centralizing approach in the Selective Draft Law Cases (1918). When Lincoln enacted a military draft in
1863 it had led to riots, and Chief Justice Taney drafted an opinion (never
delivered; there was no case before the Court) denying that such legislation was constitutional. Taney reasoned that the Constitution did not give
Congress the authority to draft men into service. Instead, it said it could
raise and regulate armies, and it gave the federal government authority
over the states' militias in certain circumstances. As the Continental and
Confederation Congresses had raised armies by requisitions on the states
and through economic inducements, Taney reasoned, that was the extent
of Congress's power to "raise" armies.

The defendants in 1918 made arguments similar to Taney's. They also
made reference to the Thirteenth Amendment, which had been ratified
since Taney's death and which said that only convicts could be subjected
to involuntary servitude. The Court would have nothing of this.

Chief Justice Edward D. White's decision for the Court leaped over the
Constitution to argue that because foreign governments conscripted soldiers, this power was obviously one of the attributes of a national government; in other words, the Court argued that anything the Kaiser could do
to his subjects, or the Commissars to theirs, the United States government
could do to Americans. So much for "interpreting" the Constitution, and
so much for the Constitution as a compact of sovereign states with powers protected by the Tenth Amendment. White said that citizenship entailed the "supreme and noble duty of contributing to the defense of
the rights and honor of the nation," which is language not found in the
Constitution.

In another case related to the war, the Court supported the executive
branch in Schenck v. United States (1919). Schenck involved the circulation by antiwar activists, including the general secretary of the Socialist Party, of pamphlets encouraging resistance to the draft. Here, Justice
Oliver Wendell Holmes, the supposed avatar of freedom of speech, let
forth the following enlightened blast: "When a nation is at war many
things that might be said in time of peace are such a hindrance to its effort
that their utterance will not be endured so long as men fight and ... no
Court could regard them as protected by constitutional right."

In other words, the Sedition Act of 1918, which banned saying anything to obstruct the war effort or bring the
government into ill repute, was valid and constitutional. Apparently there is no constitutional right to protest against a war during a
time of war, although you are free to protest
the war once the war is over.

Holmes, writing for a unanimous Court,
said that Charles Schenck should be punished
because his behavior was analogous to "shouting `fire' in a theatre and
causing a panic." The First Amendment would have protected him "in
many places and in ordinary times," but not just then.

The next year, in Abrams v. United States, the Court, using the precedent of Schenck, upheld the conviction of Jacob Abrams, who was prosecuted for passing out leaflets urging munitions workers to go on strike,
a violation of the Espionage Act of 1917. But this time Holmes dissented. He argued that there had been a clear and
present danger in 1918, but not in 1919. "It is
only the present danger of immediate evil or
an intent to bring it about that warrants Congress in setting a limit to the expression of
opinion where private rights are not concerned." But by what authority did Holmes
set this standard? Surely not the First Amendment, which says that "Congress shall make
no law... abridging the freedom of speech, or
of the press."

A Book You're Not
Supposed to Read

The Military Draft: Selected Readings on
Conscription, Martin Anderson, ed.; Stanford: Hoover Institution Press, 1982.

What a
Justice Said

"If the provisions of
the Constitution be
not upheld when they pinch as well as
when they comfort, they may as well be
abandoned."

Justice Charles Evans Hughes

If the Court supported the war effort and the Wilson administration's efforts
to squelch dissent, it also continued to support economic freedom-this
time despite constitutional allocation of power to Congress. In Hammer v.
Dagenhart, also known as the Child Labor Case (1918), the Court intervened when Congress attempted to restrict child labor. The legislation prohibited interstate commerce by businesses that employed children;
Congress invoked the Commerce Clause to justify it. The law was protested
by a father of two teenaged North Carolina mill hands. He and other opponents of the law argued that it hurt poor families, and that only states, not
the federal government, had the right to regulate labor.

The Court struck down the law, saying that Congress could not prohibit interstate commerce in legitimate products. The Court majority conceded that in the past it had allowed Congress to use the commerce
power to ban interstate travel for purposes of prostitution and to regulate
the purity of food and drugs, but here it drew the line. Textiles were not
human bodies or impure drugs. Note that the distinctions the Court made here had no basis whatsoever in the Constitution. Still, regulation of labor
remained within the states' exclusive legislative ambit, and when Congress tried again to regulate child labor through its new powers of direct
taxation, the Court again rejected the attempt in 1922s Child Labor Tax
Case.

The Supreme Court's habitual elevation of its own legislative preferences over the Constitution was highlighted in Pierce v. Society of Sisters
of the Holy Names of Jesus and Mary (1925). The case involved a 1922
Oregon initiative that required nearly all children between the ages of
eight and sixteen to attend public schools. The district court held the law
invalid on the basis of the Due Process Clause of the Fourteenth Amendment, and, on appeal, the Supreme Court agreed. The Court announced
that the "liberty" recognized by the Due Process Clause extended to the
right to send one's children to a non-public school, and so the Oregon
enactment was invalid. But what this "right" had to do with "due process"
(the Due Process Clause bars states from depriving anyone of life, liberty,
or property without due process of law) remained a mystery. The Supreme
Court's ruling in this case is still regarded as a binding precedent.

While federal judges adhered to the doctrine of freedom of contract, alas,
the other two branches of the federal government did not. Instead, by first
constricting the money supply, then adopting enormously counterproductive tariffs, the Federal Reserve and the Republican Congress of the
1920s launched the country into the Great Depression.

By the time President Herbert Hoover came up for reelection in 1932,
he was just as doomed to defeat as James Buchanan had been in 1860. His
Democratic opponent, New York's Franklin Roosevelt, ran on a traditional free-trade, limited-government, Democratic platform. And he
defeated Hoover overwhelmingly.

Almost immediately upon taking office, however, Roosevelt performed
the greatest about-face in American political history: he instigated an
enormous assertion of federal authority over the economy. The problem,
as he and his lieutenants saw things, was that the American economy was
too free. What were needed were some political geniuses in Washington
to determine prices, quantities of output, working conditions, wages,
bank schedules, and any other factors of economic life that came to mind,
just as in the Soviet Union and Mussolini's fascist Italy. American intellectuals trumpeted the great accomplishments of fascists and communists
abroad. Walter Duranty of the New York Times even won a Pulitzer Prize
for laudatory reporting from the Soviet Union-while intentionally concealing Communist mass murder. Why shouldn't the United States share
the pleasures of a centrally planned economy?

The Supreme Court had its first notable confrontation with the rapid
growth of government (which was occurring at both the state and federal
levels) in 1934. In Home Building tr Loan Association v. Blaisdell, the
Court, perhaps for the only time in history, considered the validity of a
state law that actually violated the federal Constitution. The law granted Minnesota courts the power to exempt property from foreclosure for a
temporary "emergency" period of time, "and in no event beyond May 1,
1935." The Home Building and Loan Association called this law a violation of the Contracts Clause in Article I, Section 10 of the Constitution.

What a Justice Said

"Emergency does not create power. Emergency does not increase granted power or remove or
diminish the restrictions imposed upon power granted or reserved. The Constitution was adopted
in a period of grave emergency. Its grants of power to the federal government and its limitations
of the power of the States were determined in the light of emergency, and they are not altered by
emergency."