Birth of Big Brother: How the Court deep-sixed the Tenth

By George F. Smith
web posted February 11, 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?

In a recent article [1], Harry Browne cites government schooling as the main reason for America's decline. And this, I submit, is what the demagogues are doing right -- or make that "right" -- schooling is the one government undertaking thatıs been hugely effective. Through the very medium of compulsory public education the ideas of limited government, voluntary association, and free markets -- which Browne sees as the three pillars of our country's greatness -- are carefully corrupted. That's no small feat.

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. [2] 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. [3] 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. [4]

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. [5] 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. [6]

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." [7]

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.

Roosevelt: Sent a message to the Supreme Court

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. [8] Franklin D. 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. [9]

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. [10]

As the Cato Institute's Roger Pilon has remarked, "Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937." [11]

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.

"Either you exercise responsibility for your own life," Neal Boortz recently observed, "or the government takes that responsibility -- and the control that goes with it." [12] We all know which choice the country has made, especially in the wake of 9-11.

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 [13], 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 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.

George Smith is full-time freelance writer with a special interest in liberty issues and screenwriting. His articles have appeared on Ether Zone, and in the Gwinnett Daily Post, Writer's Yearbook, Creative Loafing, and Goal Magazine. He has a web site for screenwriters and other writers at http://personal.atl.bellsouth.net/atl/g/f/gfs543/

[1] http://www.worldnetdaily.com/news/article.asp?ARTICLE_ID=26270 - Harry Browne, "How did we lose America?"
[2] http://etext.virginia.edu/jefferson/quotations/jeff1370.htm - Jefferson and state-supported education
[3] http://www.goodschoolspa.org/students/index.cfm?fuseaction=history - A timeline of public education in America
[4] http://www.ed.gov/pubs/NatAtRisk/risk.html - A Nation at Risk
[5] http://www.house.gov/Constitution/Constitution.html - U. S. Constitution
[6] http://www.tourolaw.edu/patch/McCulloch/ - McCulloch vs. Maryland
[7] Ibid.
[8] Rand, Ayn, "Capitalism: The Unknown Ideal," (article by Nathaniel Branden, "Are periodic depressions inevitable in a system of laissez-faire capitalism?"), New American Library, New York, 1962.
[9] http://www.hpol.org/fdr/chat/ - Roosevelt fireside chat, March 9, 1937
[10] http://www.unt.edu/lpbr/subpages/reviews/leuchten.htm - The Supreme Court Reborn
[11] http://www.cato.org/testimony/ct-fd720.html - Roger Pilon, Ph.D., J.D., Congressional Testimony, July 20, 1995
[12] http://www.boortz.com/feb6-02.htm - Nealz Nuze, 2/6/02
[13] http://capitalismmagazine.com/2002/february/ww_sheep.htm - A Nation of Sheep: Dependent on D.C.

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