Showing posts with label Commerce Clause. Show all posts
Showing posts with label Commerce Clause. Show all posts

Wednesday, August 13, 2014

Undermining The Constitution A HISTORY OF LAWLESS GOVERNMENT (Part 11)

English: The Supreme Court of the United State...
English: The Supreme Court of the United States. Washington, D.C. (Photo credit: Wikipedia)
By Thomas James Norton

THE NATIONAL LABOR RELATIONS ACT OF 1935 WAS A VICTORY FOR CAESARISM OVER THE STATES AFTER A CONTINUOUS BATTLE FOR TWO DECADES
The most common disregard by Congress and the President of the Tenth Amendment, forbidding the Nation to usurp powers not granted to it, and especially to stay away from the governmental field of the States, has been in its persistent attempts, under the cloak of the Commerce Clause and of the General Welfare Clause, to invade the police field of the States -- for the protection and care of the health, safety, morals, education, and general well-being of the people -- and take jurisdiction of the liberties and living of men.
The Commerce Clause authorizes Congress "to regulate commerce with foreign nations, and among the several States" -- not within the States. The General Welfare Clause is discussed in another section. By NLRA Congress displaced a Union of States by a Nation
After half a century of notable failures and some burrowing successes, that invasion won completely through the National Labor Relations Act of 1935. By that act Con-
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gress usurped police control of all workers in the United States.
Could Hamilton have foreseen that, he would have been dumbfounded.
"I confess," he wrote in No. 17 of The Federalist, "I am at a loss to discover what temptation the persons intrusted with the administration of the General Government could ever feel to divest the States of the authorities of that description" -- legislation "for the individual citizens of America."
Briefly, the act declared an "emergency" to exist because of the "burdening" of commerce and the "obstructing" of it by strikes arising out of labor disputes; and, to keep the "flow" of commerce -- not alone interstate commerce covered by the Commerce Clause, but all commerce -- uninterrupted, it set up a Labor Board to which disputes between workers and employers should be taken for hearing and decision. As there could be no suspension of production by any strike that would not "affect" or "obstruct" both intrastate and interstate commerce at least a little, all workers and employers were thus brought under the Commerce Clause, written respecting interstate commerce only, as its language so plainly shows.
Before that only a small part of the workers of the country were within reach of Congress by virtue of the Commerce Clause -- those employed by railroad companies, telegraph and telephone companies, and aviation companies. The great body of them lived and worked subject to the police power of the States.
Representatives of the States in Congress, by passing the act, disparaged and diminished their commonwealths.


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By a complete about-face Supreme Court sustained Congress
Overriding its own decisions for half a century, on the powers of Congress over interstate commerce, and reversing the Judgments of four Circuit Courts of Appeals of three judges each, the Supreme Court of the United States, in an opinion by Chief Justice Hughes, Justices McReynolds, Van Devanter, Sutherland, and Butler dissenting, upheld (301 U. S. 1) on April 12, 1937, two months after the President proposed to "pack" the Court, and while the proposal was still before Congress, the National Labor Relations Act as a valid exercise of the granted power to Congress to regulate commerce "among the several States." The very title gives the lie to the strained recitations in the Act in a make-believe that it is a regulation of commerce and not a labor law. The promise was in those recitations that the operation of the Act would put an end to strikes and the disorders and losses which had attended them, which was not, of course, a subject of national jurisdiction.
Legislation had numerous precedents
The National Labor Relations Act had been preceded by many acts for the usurpation by Congress and the President of power over concerns of the States. The tyrannies spawned by the Labor Board in applying the National Labor Relations Act were a long time in coming.
When Franklin D. Roosevelt was Governor of New York, he protested in behalf of the States against the dishonest and lawless use of the Commerce Clause by Congress and the President to occupy forbidden ground in the States. Speaking on July 16, 1929, before a conference of governors at New London, Connecticut, he condemned the "stretching" of the Commerce Clause by Con-


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gress to cover cases not embraced by grants of power to it in the Constitution (italics inserted):
Governor Roosevelt declared against such legislation
"Our Nation has been a successful experiment in democratic government because the individual States have waived in only a few instances their sovereign rights. . . .
"But there is a tendency, and to my mind a grievous tendency, on the part of our National Government, to encroach, on one excuse or another, more and more upon State supremacy. The elastic theory of interstate commerce, for instance, has been stretched almost to the breaking point to cover certain regulatory powers desired by Washington. But in many cases this has been due to a failure of the States, themselves, by common agreement, to pass legislation necessary to meet certain conditions."
Importance of commerce in history
The Commerce Clause, for the strict observance of which Governor Roosevelt was rightly solicitous, contains a principle dating back as far as Magna Carta (1215), when King John, faced by armed men, signed an agreement not to interfere in the right of Englishmen to go to and fro in commerce, and abroad and return, except only in an exigency of war.
Englishmen in commerce were "in pursuit of happiness," which the Declaration of Independence later de-


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nominated a right from the Creator, for the protection of which "governments are instituted among men."
The speeches and writings of Edmund Burke in behalf of the American colonists make clear that the restrictions on commerce by the government of England were far more burdensome and intolerable than was "taxation without representation," usually given as the cause of the American Revolution. All products for sale had to go to England -- in English ships. All things that they had to buy they were obliged to buy in England -- for transportation in English ships. Raw material ready for manufacture had to go to England for that purpose. This interference with commerce (only one of many hard regulations) destroyed shipbuilding, which had become of great importance, put an end to manufacture, and cut off commercial communication with other countries.
Constitution designed to make commerce free
It was obstruction by States of this right to engage in commerce that contributed much to the breakdown of the government under the Articles of Confederation. And the third grant of power to Congress in the Constitution which followed (after taxing and borrowing) is "to regulate commerce . . . among the several States."
Congress is authorized to regulate commerce so that it will not be obstructed as it was before -- that is, it is to promote commerce. It is not to obstruct it affirmatively, any more than the early States could rightly do so, by legislation like the Norris-LaGuardia Law, which cripples men in commerce in the maintenance in court of their constitutional rights -- and their inherent rights. It is not to obstruct commerce negatively by failure to guard the


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rights of those engaged in it, as in the toleration of costly and destructive strikes.
Commerce most important activity of man
The history of commerce makes clear that legally it is the most important right of men, not to be trifled with by kings or others in power. Nevertheless, for a third of a century obstructions to commerce have been so nearly continuous as to condemn the Government at Washington for default of duty under the Commerce Clause.
Five years before the National Labor Relations Act of Congress, Governor Roosevelt condemned illicit ideas which he afterwards sanctioned as President. In a radio address in 1930 he again took up States' rights and home rule and said that with "a great number ... of vital problems of Government, such as the conduct of public utilities, of banks, of insurance companies, of agriculture, of education, of social welfare, and of a dozen other important features . . .Washington must not be encouraged to interfere." (Italics inserted.) But Roosevelt, like Supreme Court, did turn-around
With every one of those "features," Congress, taking orders from President Roosevelt, did interfere, to the denial of the liberty of man to engage unhampered by his Government or by his fellows in pursuits which had never before been regarded in the United States as subjects for political meddling. Never before regarded, because no fancy had ever found in the Constitution anything even suggesting the power in Congress to engage in or control such activities.


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Yet, during the first eleven years of the Act, from 1935 to 1945 inclusive, there were 37,383 work stoppages, involving 16,827,305 workers and the loss of wages for 175,896,235 man-days.
N.L.R.B. failed of purpose proclaimed
For the eleven years before the National Labor Relations Act, 1924 to 1934, inclusive, the work stoppages were 11,565, affecting 5,829,339 workers, about one-third of the number involved in stoppages during the 11 years following the Act.[1]
Even more deplorable than those losses to the workers was the brake put on production of food, clothing, housing, and other things required by a people in sore need, who had shown every willingness to do their part in the conduct of the war.
Many of those strikes were attended by the worst disorders, sometimes by bloodshed. Plants were seized by strikers and the owners excluded from them. Picketing was of the most violent sort.
Against those manifestations of lawlessness, which appeared in all parts of the country, the authorities of the States did nothing, or next to nothing. The United States looked on. There was generally a breakdown of law.
1. For the six years from 1940 to 1945, inclusive, covering the whole time of World War II, strikes took place as follows:
In 1940there were 2,508strikes
19414,288 
19422,968 
19433,752 
19444,956 
19454,750 
Total23,222 




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A picture of countrywide performances
What was going on all over the country all during the war is illustrated by this official statement of the Employment Relations Board of the State of Wisconsin, issued on December 27, 1946 (italics added):
"It can no longer be assumed, as it was when the first order of this board was made in May of this year, that the leadership of the organization now on strike intends to be law-abiding citizens.
"Events transpiring since the entry of the order and its enforcement by a judgment of the Circuit Court of Milwaukee County clearly indicate that the leadership of this union entertains no respect for the law, agencies designated to administer it, or the courts, but intends to prevent by any methods, legal or illegal, the use of the company's premises by the company, or the pursuit of work by employees of the company desiring to work."
Previous orders of the Board had been disregarded. As the quotation shows, the strike at the plant of Allis-Chalmers had been on since May preceding. All the powers of unionism had been concentrated on Allis-Chalmers to compel it to establish the closed shop and thereby deny to Americans the liberty to work under conditions of their own choosing.
Was the conduct described in Wisconsin treasonable?
The Constitution defines one of only two acts of "treason against the United States" as "adhering to their enemies, giving them aid and comfort."


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Were not the unceasing strikes which were waged in essential industries from one end of the war to the other of great "aid and comfort" to Germany and Japan?
What did the Department of Justice of the United States do to protect the Government in its war endeavor and the American in his liberty?
Nothing.
Not until the head of the United Mine Workers notified the Secretary of the Interior, who was operating the coal mines under one of the many illegal seizures of property, without compensation, committed by Government during the war, that it would terminate its working agreement at midnight, November 20, 1946, did the United States show mettle befitting such an occasion. This time it had been put on the spot.
Government of great Republic driven to corner
The United States could not say that the duty to act was on the States, or use any other of the evasions which it had employed as encouragement to strikes against private industries. So it had its Department of Justice bring a suit on November 18 for injunction in the United States Court in the District of Columbia, which immediately issued an order restraining the head of the union and the miners from carrying out the notice. Nevertheless, a gradual walkout of miners began on November 18, and by November 20 "a full-blown strike was in progress," the Supreme Court said in sustaining the action of the trial judge in fining for contempt the head of the union $10,000 and the miners as a body $3,500,000. It authorized


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the reduction of the fine imposed on the miners to $700,000 on condition that they permanently obey the order of the court.
Simple case pointed way to managing labor disputes
That shows how nicely those disputes could be handled if Congress and the States (which have really fostered labor troubles) would remit them to the courts, where all other people having disputes are obliged to go. Congress does not interfere in controversies between individuals, or between corporations, or between corporations and individuals, or between States, or between associations of men. Why should it interfere in disputes between employee and employer?
The questions in dispute are justiciable (for the Judiciary) where negotiation or arbitration fails and the next step is the strike, with suspension of production for the needs of the people and the country, and disorder, sabotage, and personal peril. At that point society must assert its paramount interest, as it did in the instance just described, and require the adjudication of the dispute in its courts.
Labor decisions show courts afford remedy
Since the decision of the Supreme Court of the United States in 1928 holding (262 U. S. 522) invalid a statute of Kansas setting up an Industrial Court to hear and decide controversies between employee and employer, including differences over wages, the interest of the public in the continuity of service has become more and more recognized. The National Labor Relations Act of July, 1935,


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brought all of the employees of the country within the Commerce Clause of the Constitution under the pretense that it was necessary to prevent strikes from interrupting the free flow of commerce to the discomfiture and damage of the people. And in 1934 the Supreme Court sustained (291 U. S. 502) a law of New York setting up a Milk Control Board to fix maximum and minimum prices for milk, thus taking away the right of the parties to contract. The welfare of the public and the interest of the Nation have been so grossly disregarded during the last two decades that views on "the liberty of contract," and on "the right to strike" and plunge society into confusion and distress, have undergone change. The act of the legislature of Kansas setting up the Industrial Court would probably be sustained today.[2]
Labor controversy has ceased to be personal to parties
When, for illustration, employment was on a small scale, the law was that an employee assumed the risk of injury by the carelessness of a fellow worker and he was therefore not entitled to damages from the employer. But as employment became stupendous, laws making the employer liable (as an operating cost) for injuries to a worker, whether there was negligence or not, were upheld by the courts as valid exercise of the police power of the States
2. Long after that part of the text was written, the Supreme Court of the United States, in an opinion rendered on January 3, 1949, sustaining a law of North Carolina and a constitutional provision of Nebraska forbidding employers to enter into contracts obligating themselves to exclude persons from employment because they are or are not members of labor unions, examined the case of the Industrial Court of Kansas and said that hours and wages can be fixed by law in the public interest. That fulfills the prophecy of the text.


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in the interest of society. So the controversy between employee and employer is no longer a matter exclusively personal to them.
Congress should get out of labor politics, in which it has too long performed a discreditable as well as an unconstitutional part. Government now conducted with respect to elections
The capers that have been cut at Washington during the last three decades make one wonder whether sight has been entirely lost of the purpose of Government as laid down in the Declaration of Independence, namely, to secure man against his fellows, and more especially against those whom he has chosen for his servants in public office. The activities of administrations have been plainly to favor, in view of the next election, great voting blocs like the labor organizations, the people on the farms (who, subsidized for years, turned the Presidential election in 1948), and the political bosses who "deliver" the votes of many corrupt cities. The platforms of both parties have offered shamelessly to "give every thing to every body" in those classes.
Meanwhile, the people, who set up Government "to secure these rights" which came to them from the Creator, "among which are life, liberty and the pursuit of happiness," are stripped of their possessions with a system of ruthlessness rarely exampled in the history of tyranny.
Although the Criminal Code of the United States provides that a fine of $100 and imprisonment for six months, or both, shall be imposed upon anyone who shall "knowingly and wilfully obstruct the passage of the mail," and


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although the opening of mail is severely punished, the Executive Department of the Government took no action respecting the obstructing and opening in 1937 of mail addressed to Americans engaged in their work and surrounded by pickets trying unlawfully to deny to them this liberty.
The nonaction by the Chief Executive, who is enjoined by the Constitution to "take care that the laws be faithfully executed," looked to the beholder like sanction of the illegalities.
Washington friendly to the sit-down strike
While the Government at Washington assumed to legislate by the National Labor Relations Act respecting all labor, regardless of whether it might be engaged in interstate commerce (of which only it has jurisdiction), a spokesman for the White House let it be known that sit-down strikes in various parts of the country, by which owners were forcibly dispossessed of their property by their employees, were matters of concern, not to the Nation, but to the States! As before indicated, the debilitated States generally concurred in such strikes.
The Secretary of Labor was reported by the Press to question at first whether the seizure and detention of plants by sit-down workers was illegal!
While employees of a steel manufactory at Canton, Ohio, were working under siege by an army of pickets, airplanes dropped leaflets to discourage the workers, saying, "Our members are well fed and happy. Relief is being arranged for their families. Four departments of the United States Government are fighting for our side."
On March 23, 1947, the Associated Press reported from


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Milwaukee that "the Allis-Chalmers strike, one of the most bloody and turbulent in recent history, ended today when the striking UAW-CIO Local 248 voted to return to work without a contract."
That shows that the workers themselves had tired of the long misleading by their officers.
Communism in strikes in United States
As the chief principle of the tactics of Communism is to provoke disorder and profit by it, the foregoing record, made mostly while the Republic was in the perils of war, compels the question whether Communist influences guided that disgrace to "government under law."
Earl Browder, for years head of the Communist Party in the United States, and twice a candidate for the Presidency of this Nation, reported to the Congress of the International Communist Party in Moscow on July 18, 1935:
"How was our party able to penetrate the masses and emerge from isolation? A great role was played by leaders in the strike movement and in the work of the party among the unemployed. In some of the most important strikes, the San Francisco general strike for one, the Communist Party had a decisive, determining influence."
And the great Government of the United States was not only unable to deport the alien who fomented and led that strike, but it also came around to issuing citizenship papers to him!
In What Is Communism? it is made clear (p. 163) by Browder, a native of the United States, that the plan of Communism is to take away liberty and property by armed force:
"The Revolution is carried out by the great masses of the


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toilers. The Communist Party, as the vanguard of the most conscious toilers, acts as their organizer and guide."
And again (pp. 164, 165):
"In the revolutionary situation the Communist Party . . . wins some of the armed forces to its side, and leads the effective majority of the population to the seizure of State power. . . . Above all, they need the armed forces."
An attempt to destroy an industry
Although not so wide in its reach to people as the National Labor Relations Act of 1935, the law of Congress of 1886, forty-nine years before (amended and extended in 1902), taxing oleomargarine ¼¢ a pound, and 10¢ a pound when colored, was fully as bad an invasion of the police field of the States. Agriculturists, a voting power, put the bills through Congress in protection of dairy butter. In addition to the destructive tax on the colored article (while colored butter was not taxed), the heavy license tax on manufacturers, on wholesalers, and on retailers, and the regulations regarding packing, labeling, and permits were obstructive and costly. The manufacturers abandoned coloring and left that to the consumers. Notwithstanding the handicap, oleomargarine grew steadily in favor. It was used in the navies of the world, including our own.
Those laws, attacked as intended to destroy an industry, as an encroachment upon the police field, and as working a deprivation of property without due process of law, were sustained (195 U. S. 27) in 1904 by the Supreme Court of the United States in an opinion by Justice White, with dissent by Chief Justice Fuller and Justices Brown and Peckham.
In 1888 the Supreme Court had upheld (127 U. S. 678)


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a law of Pennsylvania (1885) which forbade the making and selling of anything to be used as butter, or in lieu of it, out of any substance "other than unadulterated milk or cream." Justice Field dissented from the opinion written by Justice Harlan chiefly on the ground that the Court had lost the distinction between regulation and prohibition. To be sure, a State may regulate the manufacture of foods so as to secure purity and prevent fraud. But Pennsylvania had no more right or power to suppress the manufacture of oleomargarine, made and sold without deception, than it had to prevent the making of marmalade. Wide as the police power is, it must be exerted with regard for rationality, liberty, and the right to property.
Of the case arising in Pennsylvania, Judge Dillon, once on the Federal Bench, wrote in Municipal Corporations and also in Law and Jurisprudence in England and America this sound and complete comment:
"The record of the conviction of Powell for selling without any deception a healthful and nutritious article of food makes one's blood tingle."
If the police power of Pennsylvania could not extend that far, how could Congress, without any police power at all, get a seat in the game of politics?
In March, 1950, a discreditable record of 64 years was ended by Congress when it repealed the legislation by a vote of 202 to 106 in the House and 59 to 20 in the Senate.
The unbelievable guilelessness of the American
In all worlds of fabulists and fictionists no state of things is exhibited which is at once so preposterous and so potentially calamitous as that there should be tolerated a party


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against freedom and possessions in a land where the Constitution twice guarantees security to Liberty, Property, and Life!
Why have Senators and Representatives, who have been sent by the people of the States through the years to represent them in the Congress of the Union of States, failed to maintain their States in their constitutional position in that Union? They have made the State a kind of satrapy of the central power.
What Congressmen and Governors have done to sovereign States
The degraded position to which the States have descended in the estimation of our Government was shown by a meeting in 1944 in St. Louis of the governors of 26 States, who deplored the fact that for 11 years not a Governor had been called to the White House for consultation.[3]
When President Truman took office in 1945, the Republican members of Congress proceeded to the White House
3. The bill of particulars drawn by the governors proposed the resumption by the States of their constitutional functions. It condemned the acquisition by the United States of the lands of the States, the usurpation by Washington of unemployment insurance and unemployment services, the derogatory "conditions' fixed by the Federal Government to grants in aid of States for public works, the attempt of the Administration "to undermine and abandon our traditional National Guard," the entry of the United States into competition with insurance companies, the plans to control from the National Capital the field of medicine, the development of water resources without any recognition of the superior rights of the States, and some other acts of total indifference to the existence of local governments, as leaving for ten years "entire regions of our country" without "representation in the Cabinet or administrative agencies of the Federal Government." The crowning insolence was the failure of the President to invite any governor to the White House for an exchange of views.
Of course, the things complained of were brought about by the incompetence or delinquency of members of Congress from the States.


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to tell him that they would help him in all ways consistent with their political beliefs. On leaving the White House, the Republican leader in the Senate said to newsmen that he had not been on the premises since the party in power took office in 1933.
Well, the governors complaining at St. Louis were not heard in protest when the representatives of their States in Congress were originating or supporting bills for weakening their commonwealths and widening the authority of the National Government. And as for the treatment of members of Congress by the White House, they had let go of their constitutional reins.
At the 42nd annual convention of the governors of the States, at White Sulphur Springs, West Virginia, on June 19, 1950, there was a quite general expression of the view that "Federal aid" should be relied upon by the States to carry their projects of flood control, reclamation, irrigation, electric power, and the like.
The presiding governor sought to prevent "stump speeches on the obligation Washington has in the development of the West." But the governor of California thought it "perfectly logical to ask the Federal Government for help in irrigation, reclamation, and power projects: we repay every cent and pay interest on Federal moneys going into such projects."
No one rose to inform him that the Constitution gives no authority to Congress to lend money at interest or otherwise for any purpose. Nor was he reminded that banks, and others having the right to lend, provided the necessary money for all great projects in the building of the United States from the beginning down.
The governor of New Jersey protested the proposal for


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Federal aid. He could not understand how any governor could "go on record for a balanced Federal budget and at the same time have his hand out for millions for reclamation, irrigation, and public power." He said that "New Jersey would have nothing to do with Washington, that it can and does finance its own projects, and at cheaper interest rates than the Federal Government can borrow money."
It is somewhat reassuring that one governor out of 48 had been sufficiently educated to declare for constitutional procedure.
The meeting of governors revealed the great need, not so much for "Federal aid," as for a school for giving constitutional instruction to the executives of the States. Such a school might accept members of Congress. Something must be done toward teaching those in office.
In the days of the horse and buggy
In the autobiography of Senator Hoar it is said that if any group went to the White House and brought back directions on policy, they would be made to regret it. For sixteen years or more the White House has been permitted by Congress to usurp direction of policy.
The States must back-track to where the writers of the Constitution set them -- or where they set themselves, for they made the Constitution.
And the schools must so teach the Constitution that governors of States will know better than to resign their great offices to take inferior seats in Congress.
And the President must be elected by the constitutional method.
When the States have exercised the power which they


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reserved to themselves by section 2 of Article I, to prescribe the qualifications of voters for members of Congress as well as for candidates for local offices, by making a certificate of graduation in the study of the principles of our constitutional system a condition of registering for voting, then we shall have a better situation in Congress and out.
And in the days ahead
And when the States have abolished the straight ticket by restoring or putting into effect the Australian ballot, which was emasculated for the aid of the illiterate followers of political leaders or bosses, then American elections will express the competence of the people for self-government.
And when the States have brought back the constitutional election of the President and put him in his place to stay, and thereby removed the need for Corrupt Practices Acts of Congress, our country will then be again "the land of the free."

The States, which intended when they wrote the Constitution to manage the country largely, should return to that duty.

From the great folks over at Barefoot's World.  

Friday, March 28, 2014

Undermining The Constitution A HISTORY OF LAWLESS GOVERNMENT (Part 6)

Chief Justice John Marshall established a broa...
Chief Justice John Marshall established a broad interpretation of the Commerce Clause. (Photo credit: Wikipedia)
By Thomas James Norton


THE LONG-PURSUED PURPOSE OF CONGRESS TO CROSS THE BARRIER OF THE TENTH AMENDMENT AND ENTER THE POLICE FIELD OF THE STATES, OFTEN CHECKED BY THE COURTS AND THE PEOPLE, WAS ACCOMPLISHED BY THE PACKERS AND STOCKYARDS ACT OF 1921
in enacting the Packers and Stockyards Act of August 15, 1921, Congress did not move in obedience to powerful voting groups, as it did when it passed An Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy, and for Other Purposes, and as it did in passing the bills on Child Labor.
It had no apparent reason for disregarding the Tenth Amendment and meddling in the duties of the States. There may have been complaints about the charges or services to the public of the stockyards at Chicago. If there had been dissatisfaction in that respect, the complaints should have been lodged with the commission of Illinois having authority. No default in the service of a corporation of a State could have given jurisdiction to Congress.
A belief of many dangerous to constitutionalism
While the opinion has often been expressed by persons otherwise well educated that if a State will not perform
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its duty, then let the Nation do it, the Constitution is not changeable that way: An amendment is necessary to a change. The idea, however, is startlingly prevalent. Multitudes believe that the National Government should take over more often than it has done.
Whatever the urge, Congress stepped into Illinois and took the control of the stockyards at Chicago away from the State. The sanction in 1922 by the Supreme Court (258 U. S. 495) of the action of Congress made the law effective as to stockyards on railroads in other States, and managing bureaus moved in.
The action by Congress was under the Commerce Clause of the Constitution, which empowers it "to regulate commerce among the several States." This clause and the General Welfare Clause are the two stand-bys for Congress when it finds the Tenth Amendment in its way of stripping the States and The People of their freedoms.
Governor Roosevelt condemned congressional invasion of States
The Packers and Stockyards case was undoubtedly in the mind of Governor Franklin D. Roosevelt of New York when, in 1929, addressing a meeting of governors, he condemned unsparingly the "stretching" of the Commerce Clause by Congress to cover its intrusions into the States.
The stockyards at Chicago were being regulated by the State of Illinois. Livestock coming from other States was unloaded at the yards, fed and sheltered. Dealers in livestock had offices in or near the yards and made purchases there. Most of the animals received at the stockyards were taken by the large packing companies and manufactured into beef, pork, and other meats and foods. Those manufactured products were in part shipped out of Illinois to other States.


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Someone in Congress or elsewhere conceived the idea that the transportation of freight was continuous, from the feeding lots where the livestock was fattened to the States in which the meats were consumed, and that therefore Illinois should have no control of such "interstate" commerce.
Stockyards Act superfluous as well as illegal
In the statement of facts preceding the opinion by Chief Justice Taft, it was said that "the act seeks to regulate the business of packers done in interstate commerce." But that could have been done without usurping the police power of the State of Illinois over a local industry. For the Sherman Anti-Trust Law had been enacted in 1891, thirty years before, to prevent or remove the conspiracies and combinations in restraint of trade and competition which were in this case charged against the packers.[1] The Chief Justice said that the Packers and Stockyards Act "forbids unfair, discriminatory and deceptive practices in such commerce" -- precisely what the Sherman Law had long forbidden. Except that the Sherman Law was not an invasion of the State in disregard of the Tenth Amendment. The Packers and Stockyards Act was.
The Act made the Secretary of Agriculture a tribunal to
1. The Sherman Law was supplemented in 1914 by the Clayton Act. In the same year the Federal Trade Commission Law was enacted to prevent "unfair methods in competition in interstate commerce."
In suits under the Sherman Law combinations like Standard Oil and Northern Securities were broken apart. But each of the leading parties charges the other with failure during its time in office to enforce the anti-trust laws. Senator Borah said in a speech to his colleagues that each party is enthusiastic for regulation of too-big business only in campaign time. It is a question whether the magnitude of many industrial and commercial organizations may affect people toward a belief in Socialism or Communism.


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hear complaints of unfair and monopolistic practices and to make desist orders. That was unnecessary, for courts of equity had been giving such remedies under the Sherman Law.
Sherman Law had proved its complete adequacy
Indeed, as far back as 1905 a decree in a suit under the Sherman Law ordered (196 U.S. 875) the packers to desist from monopolistic practices in their trade in interstate commerce. And following the report of the Federal Trade Commission, and before the passage of the Packers and Stockyards Act, a bill was filed in a Federal Court of the District of Columbia to enjoin the Big Five packers from monopolistic practices in the purchase of livestock and the sale and distribution of meats. To a decree stopping the monopolistic practices complained of, the packers consented.
In 1912 these same packers had been indicted for monopolistic practices in violation of the Sherman Anti-Trust Law and upon trial were acquitted.
The Sherman Law also proved adequate to break up Standard Oil, Northern Securities, and many other powerful monopolies.
As has been shown, the courts had many times, under the Sherman Anti-Trust Law, made such combinations give up their controlling shares of stock and desist from the other practices complained of. There was no need for further legislation. The Interstate Commerce Commission had been, under the Commerce Clause, regulating transportation of commerce for more than a third of a century, and the Federal Trade Commission, under the Act of 1914, under the same clause, had for several years been


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making orders respecting fair practices in trade and commerce.
Long line of holdings submerged by Stockyards decisions
The decision in the Stockyards case was contrary to a long line of holdings by the Interstate Commerce Commission and the courts that interstate commerce begins upon the delivery of a shipment to a carrier consigned (addressed) to a point in another State, and that it ends upon delivery to the consignee. It was held, for illustration, in another case, that a shipment of property so delivered became taxable by the State where it was received. By many similar decisions the difference between interstate commerce and intrastate commerce had been clearly defined. By the definition so worked out the stockyards company in Chicago, chartered to provide for profit yardage, feed, and care for livestock, was no more engaged in interstate commerce subject to Congressional regulation than was a grocer in a nearby street receiving goods from another State. That the animals were later to go to other States in the form of foods did not make a through interstate shipment of the animals part of the way and the foods at another time the remainder of the distance.
Theory of decision of Supreme Court
The Supreme Court said that the Act treated all stockyards "as great national public utilities." But to call companies operating local yards for feeding and otherwise caring for livestock consigned to them and for facilitating local transactions between sellers and buyers, "great national public utilities," could not change the facts or con-


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fer jurisdiction on Congress to regulate their business to the ousting of the constitutional jurisdiction of the States.
However, the Supreme Court held (258 U. S. 495) otherwise, Justice McReynolds dissenting and Justice Day not sitting.
This decision is to be used later to support the extravagancies of the National Labor Relations Act as being, not what its title calls it, but a law regulating commerce among the States in accordance with the Commerce Clause of the Constitution!
Fond hope of Madison dashed
Madison fondly believed that the States would rise unanimously against any aggression by the National Government upon their local authority (The Federalist, No. 46):
"But ambitious encroachments of the Federal Government on the authority of the State governments would not excite the opposition of a single State or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole."
Those revolutionary worthies could not conceive of the pusillanimity of a century and a half thereafter! The representatives of the people of the States in Government have originated most of the invasions of the States.


[And Much Worse Two Centuries Thereafter in the 21st Century !!]

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Sunday, March 2, 2014

Undermining The Constitution A HISTORY OF LAWLESS GOVERNMENT Part V

The United States Supreme Court.
The United States Supreme Court. (Photo credit: Wikipedia)
By Thomas James Norton

FOLLOWING THE INCOME-TAX AMENDMENT IN 1918, THE NEXT VIOLENCE TO CONSTITUTIONAL PRINCIPLE WAS UNDERTAKEN IN 1916 BY A SOCIALIST-MINDED GROUP SEEKING TO BREAK DOWN THE TENTH AMENDMENT AND HAVE WASHINGTON ASSUME POLICE POWER IN THE STATES OVER PERSONS UNDER THE AGE OF 18 YEARS
As late as 1916, when the attempt at undermining the States by transgressing the Tenth Amendment was undertaken by a very formidable and persistent aggregation of forces, the assailants were three times hurled back in a battle which lasted twelve years. But the contest was close.
The Judiciary in defense of the Constitution
Congress passed two unconstitutional bills and the President, presumably advised by the Attorney General, signed them. Constitutional government, and the Tenth Amendment particularly, were saved by the Supreme Court.
Under the direction of the American translator of the writings of the patriarchs of Communism, Karl Marx and
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Friedrich Engels, there was begun in 1916 an extraordinary attempt to break down the constitutional structure of the United States and thereby curtail the liberties of the American.
This woman pushed a bill through Congress which would forbid the moving in interstate commerce of manufactured articles into the making of which the work of persons under the age of 18 years had entered. The ostensible idea was to protect the young from oppression by ruthless employers and uncivilized fathers and mothers who were taking wages from the servitude of their children. From the strident propaganda that was organized and turned loose, a stranger just arriving on the planet would conclude that parenthood on the Earth was covetous wickedness itself.
Strategy of Communism in 1916
According to the "Woman Patriot," a paper then published in the City of Washington, the promoter of the Child Labor Law had boasted that in her legislative drives she never let appear on the front of the movement the real intent of the propagandists. That is the basic strategy of Communism. The Child Labor Act had no relation to child labor, because there was in objectionable volume no such thing. After the census of 1920 the Department of Labor made a boastful report to the effect that since the taking of the last decennial census so many laws of States had lengthened the months of school required; had set such severe conditions for a youth to qualify for work during vacation, had so completely forbidden work by minors in theatres and like places and prohibited working with


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dangerous machinery, that the so-called child-labor evil had been all but wiped out.
But even had the States been delinquent in the exercise of their police power to guard the health, education and welfare of childhood, that could not have conferred power on Congress to assume jurisdiction. It had no place in the field of the States. It has been shown from authorities that the States cannot abdicate their police powers and that Congress cannot take them over.
Had there been a child-labor evil -- and there was none of magnitude -- it was for the people at home to make their legislatures take police action.
But, as before said, the "ballyhoo" was so overwhelming and ceaseless that many good but uninformed people were taken off their feet, and they gave way to tears for the American child so victimized by his greedy and heartless parents.
No child-labor problem in 1916
There being no child-labor problem to solve, it is manifest that the undertaking was to remove the youth of the land away from the police control of the States -- as the National Labor Relations Act, 19 years later, removed all workers -- children and adults -- of the country out of local jurisdiction -- and transfer authority over them to the central Government at Washington. Making the central Government top-heavy would cause it in time to collapse of its own weight, and the collapse of the finest specimen of Government securing liberty and property has been the object of Communism for many years.


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Governor Roosevelt denounced misuse of Commerce Clause
The use of the Commerce Clanse of the Constitution to bolster the act of Congress was one of those lawlessnesses which Governor Franklin D. Roosevelt of New York denounced in the strongest terms. And when he became President he broke all records in promoting this sort of legislative malpractice!
Why did men representing the people of the States in Congress vote for a bill by which the Nation would usurp power not granted to it by the Constitution, and the States would lose by abandonment powers inherent in them for the care and protection of youth?
Why did a President with an Attorney General to advise him sign such a bill? What is an Attorney General for?
Congress could not by its act gather to itself police power over "the health, morals, safety, education and general well-being of the people." Nor could the States surrender their local police sovereignty to Washington. That was decided (219 U. S. 270) in 1911 by the Supreme Court of the United States.
Of course, when an employer and a father both attacked the act as against liberty, the Supreme Court in 1918 held (247 V. S. 251) that, although it pretended to be a regulation of commerce between the States, it was in reality a seizure from the States of their police power, in violation of the Tenth Amendment, and therefore unconstitutional.
Did that stop the constitutional illiterates representing the States in the Congress in their push to degrade their commonwealths?
No.


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Congress shifted from Commerce Clause to Taxing Clause
In 1919 Congress passed a Child Labor Tax Act and the President signed it, presumably with the approval of the Attorney General By that enactment a destructive tax was placed on the product of child labor, so heavy that the manufacturer could not sell the goods in competition with other makers. The Commerce Clause having failed to support the other act, Congress resorted to the Taxing Clause.
But when a citizen affected by the legislation attacked it, the Supreme Court in 1922 held (259 U. S. 20) that as the tax imposed was intended to prevent the manufacture by youth, it would also put an end thereby to the revenue, for which reason it could not be treated as a revenue act. It was palpably another lawless attempt by Congress to take from under the police power of the States the supervision and protection of youth.[1]
Neither did that decision stop the constitutional illiterates of the States in Congress in their determination -- or in the determination of the Communist-minded and unschooled sentimentalists who were lashing them -- to weaken their commonwealths and enlarge the central Government.
The energy and fury behind this movement of Communism, supported by weeping women and educators, was frightening.
1. This decision by Chief Justice Taft, that a pretended tax law which is not for revenue is unconstitutional and fraudulent, disposes of the preposterous proposition of President Franklin D. Roosevelt to Congress, namely, that taxes be made so heavy as to permit no income above $25,000 a year, and that all incomes be prevented from being "too high."
It also disposes of several poorly considered dicta of "progressive" judges, that taxes may be levied for regulatory and punitive purposes.


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Members of Congress make third effort to degrade their States
Having failed twice in "dashing itself against the imprisoning walls of the Constitution," as Bryce described our legislative body, Congress proposed in 1924 an amendment to the Fundamental Law which would empower it to prohibit labor throughout the United States of persons under the age of 18 years.
It was immediately rejected by enough legislative bodies in the States to defeat it, but every time new legislatures were elected the promoters again urged adoption.
During the pendency of the proposal before the legislatures of the States, 20 of them repeatedly rejected it, in Massachusetts 8 times, in New York 7 times, in Texas and South Dakota 6 times, and in 3 other States 5 times.
In 23 instances attempts were made in Congress to modify the resolution so as to draw in some of its reckless implications, but they were voted down -- sometimes howled down without a record vote.
When President Roosevelt took office he immediately urged legislatures to adopt it, which course was an illegal interference by the Executive with the functions of the States. It was also contrary to his declarations as Governor of New York. Some States acted as he requested; but when he telegraphed "my native State" to ratify the proposal, the legislature of New York promptly rejected it.
The rejection of the proposal by the legislatures shows that many Congressmen were as badly informed of the wishes of their constituents as they were on the Constitution.


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Peril from uneducated public opinion
What insidious and unseen power could maintain for more than a dozen years that assault on the constitutional integrity of the United States? Why was there not force enough in public opinion to check Congress in its wayward course?
It may be that the defeat which Congress suffered in 1918 in the first decision of the Supreme Court respecting Child Labor was the cause of its classing in the Revenue Act of 1919 the compensation of the judges as income subject to taxation and thereby reducing their compensation, which the Constitution forbids.
The way to cure the weakness is by requiring the schools, colleges, and universities to make everyone graduating a sound constitutional scholar.
About forty of our States have laws requiring the teaching of the Constitution of the United States in public and private schools, but in not one State is our Great Charter thoroughly taught as a separate study to the youth who are to govern the land and hold the destinies of the Republic.
Could you believe this?
To show that references herein to constitutional illiteracy are not extravagant or unjust, it is mentioned that in March, 1947, a dispatch from Washington said that a member of the House of Representatives from the great State of Illinois and a member from the great State of Louisiana introduced bills making it a felony to try to bribe an athlete. There had recently been much in print


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about crookedness in baseball and other sports. The boy or girl leaving school before reaching High, as over 16 per cent of them do (while half of the 1,700,000 leave before the end of the second year), to govern the United States and direct its destiny, should know better than that. It is an indictment of schools, colleges, and universities that members of Congress should introduce such bills. Felonies fall within the police power of the States.
The man power of Congress has undergone change
Congress has no Sumner, no Conkling, no Cameron, no Hoar, no Ingalls, no duplicates of the many old worthies -- chosen for the Senate by legislatures instead of popular vote -- with experience in taking the President by the sleeve and showing him back to his place.
When the States take back their Union they should tolerate no more weak Congresses. It is discreditable to them as governmental entities and to their people entrusted with the present and the future of the Republic that there should have been Congresses deserving of the epithet of "rubber stamp."
General and thorough constitutional education only hope
They should require that every man and woman appearing to register as a voter present a card showing membership in One Great Union, a certificate from the County Superintendent of Schools that the bearer has passed a thorough examination in writing on both the History and the Constitution of the United States. The requirement of an examination in writing would disqualify, properly, the


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illiterates who control the great cities which drag down the States. The predicament of the State with an unclean city is likened in the memoirs of Senator Hoar of Massachusetts to the eagle in Tennyson, "caught by his talons in carrion and unable to rise and soar."
It would also repair the damage done by the delinquent States which frustrated the Australian ballot[2] and gave to the political bosses in the cities for the use of their illiterates the "straight ticket" -- and too often the control of the Presidential election.
The rescue of the Union by the States and the preservation of it perpetually is that easy.
Spinsters worry about Maternity and Infancy
While the proponents of the Child Labor Acts and the proposed Child Labor Amendment drove their measures through Congress, like-minded groups "put over" in 1921 An Act for the Promotion of the Welfare and Hygiene of Maternity and Infancy, and for Other Purposes.
In a strong argument against the power of Congress to pass such a bill under the Constitution, Senator Reed of Missouri read the catalogue of the names of the women
2. The Australian ballot groups the names of all the candidates for one office in one block, all the names of candidates for another office in another block, and so on. There can be no "straight ticket." If the voter is too illiterate to find the names of those for whom he would vote, that is to the advantage of the country.
Penalties are visited upon the citizens who do not vote unless they present valid excuses. The Australian Embassy said that in 1943 the vote in the Federal election was 96.3 per cent of the electors. All the States in Australia have compulsory voting laws.
In our election in 1948 only 47,500,000 persons voted, although, according to the Bureau of the Census, there were 95,000,000 eligible to vote.
Ohio adopted in 1949 a form of ballot to put an end to the "straight ticket." That looks like sunrise.


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throughout the land leading the move toward centralism -- and not one of them was married!
The law expired by limitation in 1929 after costing the taxpayers $11,000,000. The American Medical Association reported that not one new idea was developed by the expensive experiment. It is the only legislation of the socialistic sort from which Congress eventually backed away. A constitutional amendment may some day wipe out the others.
Had the Supreme Court accepted jurisdiction of two cases brought to test the validity of this Maternity Act, instead of questioning the right of the plaintiffs (262 U. S. 447), and had it shown for permanency, after the manner of John Marshall, the line between the power of the Nation and that of the States respecting such subjects, then A Bill to Alleviate the Hazards of Old Age, Unemployment, Illness, and Dependency, to Establish a Social Insurance Board in the Department of Labor, to Raise Revenue, and for Other Purposes, along with other kindred measures of the "New Deal," might never have been attempted.
A Judiciary without statesmanship to foresee the consequences to the Republic of a decision is not what the writers of the Constitution designed.
Where the States might have been constructively busy
While the representatives of the States in Congress were passing unconstitutional bills to deprive their commonwealths of police power over youth, maternity, and infancy, and proposing an amendment which the legislatures of the States rejected, many times by some of the States, the members of the legislatures were, seemingly, so occu-


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pied at home with building debt that they, also, were at fault regarding the constitutional position and the obligations of their States.
A notable illustration of this is in their failure to take hold of the matter of divorce, a subject of police which our "centralists" have for a long time been asking Washington to regulate. It has been before the public for a quarter of a century or more, and in January, 1950, it was discussed in a meeting of workers for improved social conditions. The Committee on Uniform State Laws of the American Bar Association, which framed bills on many subjects acceptable to all the legislatures for enactment, gave this problem up.
Of course, it is a subject for the States. Massachusetts long ago settled the question for itself, and all the other States need to do is to copy the statute of Massachusetts, which was upheld (188 U. S. 14) by the Supreme Court of the United States in 1903.
How Massachusetts laid down the law
The General Court (legislature) of Massachusetts declared that a decree of divorce granted to a citizen of that State by a court of another State would be valid in Massachusetts when the foreign court should have had jurisdiction of both parties; but that when an inhabitant of Massachusetts should go to another jurisdiction for a divorce for a cause arising in Massachusetts when both parties are domiciled there, or for a cause which would not authorize a divorce in Massachusetts, a decree in such a case would have no effect in that commonwealth.
The Supreme Court of the United States held that law not repugnant to the Full Faith and Credit Clause of


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the Constitution, requiring the judicial proceedings and public acts of one State to be given effect in all others. Massachusetts was not obliged to give credit to a decree to one of its citizens when obtained against its public policy.
Wherein the decree was void
An inhabitant of Massachusetts went to South Dakota and obtained a decree of divorce in a suit in which his wife did not appear. Because the court had no jurisdiction of her the decree was of no force against her in Massachusetts. The husband returned to Massachusetts and remarried. Upon his death his first wife brought proceedings to be adjudged his widowed spouse and to be entitled to administer his estate and take his property. She won.
A similar statute of North Carolina, requiring a spouse domiciled in that State and desiring a decree of divorce, to apply to a court of North Carolina, was upheld by the Supreme Court (325 U. S. 226) in 1945, respecting decrees granted in Nevada when the applicants were not in law domiciled there. The domicile is the place where a person resides and intends to stay. Marrying in Nevada immediately after receiving decrees, the two spouses returned to North Carolina, They were arrested on the charge of bigamous cohabitation, the former spouse of each being resident in the State.
Plain cure tor laxity in divorces
So it would be a very simple undertaking for the legislatures of the States to copy the law of Massachusetts or that of North Carolina, both held constitutional.
That would bring down to earth the whole flock of


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those "birds of passage," as one court described them, who are pictured day by day at the airports taking flight for Nevada, Florida, or Mexico to get quick releases from the first, second, third, or fourth bondage.

Neglect of this subject has been one of the most censurable delinquencies of the States.

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