Birth of Big Brother:
How the Court deep-sixed the Tenth
By George F. Smith
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 , 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.  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.
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.  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. 
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. 
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." 
The Tenth Amendment had been unofficially repealed. Instead of rule by
law, we became a country ruled by demagogues and the favors they dispense
"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."  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 , 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
- Harry Browne, "How did we lose America?"
- Jefferson and state-supported education
- 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.
 http://www.tourolaw.edu/patch/McCulloch/ - McCulloch vs. Maryland
 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.
 http://www.hpol.org/fdr/chat/ - Roosevelt fireside chat, March
 http://www.unt.edu/lpbr/subpages/reviews/leuchten.htm - The
Supreme Court Reborn
 http://www.cato.org/testimony/ct-fd720.html - Roger Pilon,
Ph.D., J.D., Congressional Testimony, July 20, 1995
 http://www.boortz.com/feb6-02.htm - Nealz Nuze, 2/6/02
 http://capitalismmagazine.com/2002/february/ww_sheep.htm -
A Nation of Sheep: Dependent on D.C.
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