Monday, January 6, 2014

Undermining The Constitution A HISTORY OF LAWLESS GOVERNMENT (Part 1)

Battle of the Hook, 2013
Battle of the Hook, 2013 (Photo credit: Battleofthehook)
By Thomas James Norton

In 1893 South Dakota adopted from Switzerland the Initiative and the Referendum, and from then until 1918 one or both of those plans, with the Recall, were taken on by 22 of the 48 States.

Three borrowings from Switzerland against our Constitution

By the Initiative the people can draft a law and put it to a vote; if the majority favor it the legislature is bound to pass it, even though opposed to it.
By the Referendum a bill passed by the legislature is referred to popular vote, and it may be approved or prevented from taking effect.
The Recall is used to unseat a holder of office who has become unsatisfactory, or to revoke a law.
Some States adopted the three expedients, some two of them, some only one. At first the belief spread rapidly.

The first attempt to recall judicial decisions

Colorado was the only State to apply (1912) the Recall to decisions by the courts, and that was held by the Supreme Court of the State to be in conflict with the Colorado constitution.
Theodore Roosevelt, displeased by the decisions of some courts, advocated the recall of decisions of the supreme courts of States. The prestige of the former President gave much impetus to the "movement." The American Bar Association appointed a committee to go to the country in refutation of the constitutionally destructive idea. In 1912 the committee reported the recall of decisions dead. Roosevelt afterward admitted that he had made a mistake.
Kansas limited the Recall (1914) to appointive officials.
The Initiative has never been extensively used, and for a long time not much has been heard of any of the "democratic" devices.
Large populations require representation, not "democracy"
Methods deemed useful to small populations in narrow areas, as in the cantons of Switzerland and the town meetings in New England, could not be accepted as serviceable or safe for large populations and extensive countries. Indeed, that point was discussed in the Constitutional Convention, and the conclusion was reached that for the United States as they then were, and as they would expand to be, only the representative or Republican system would do.
In 1893, when South Dakota led the way, the country

had undergone one of its severest panics. There had also been successive crop failures. The advocates of popular action contended that legislatures were not faithful to the people and that therefore the people should take over. However, the remedy was in the election of better legislators, not in a fundamental change in the form of government. And it is doubtful whether the most capable and honest legislators could have stilled the complaints arising from the panic and the failures of crops.
When people seek paternalism from their government
In all such times the disposition is to look around for a scapegoat, and the people usually feel that government should do something to correct conditions and relieve distress.
This inclination of the people in financial distress to look to the governments of the States to do something about it was the forerunner, as it were, of the wide calls for "Federal aid" of many kinds which were raised in the late 1920s and the early 1930s.
In 1920 the Supreme Court upheld (253 U. S. 233) the creation by a vote of the people of North Dakota of an Industrial Commission to take over and manage utilities, industries, and other business projects, some to be established by law. It was authorized to operate the Bank of North Dakota, the Home-Builders Association, flour mills, grain elevators, a fire insurance company, and other projects. It was empowered to issue bonds, and in 1937 it had floated such paper to the amount of $24,798,000 for rural credit.

From 1934 to 1940, in a time of peace, the National Government built up a deficit of $26,500,000,000, of which $21,500,000,000, or 80 per cent, according to the Governor of Virginia, resulted from "grants in aid" to States and individuals. Subsidies from the taxpayers of the country held up the price of wheat and corn to $3 a bushel as late as 1948. And like support to stockmen put the prices of their commodities so high that beefsteaks, roasts and lamb almost entirely disappeared from the table of the American.
Dependence on government brings unfortunate conditions
And yet the stockmen were unprepared with shelter and feed to care for their herds when the heavy snows and low temperatures came in the Winter of 1948-1949. The States were without organization to help. Governors and stockmen cried to Washington to come out and save them! Long dependence of the people and the States on miscalled "Federal money" had debilitated both.
The army was sent out. It kept the roads open and it fed and saved most of the herds.
Caesar, too, helped the people, but they lost their liberty to him.
The Constitutional Convention set up a thoroughly representative form of Government in each of the three Departments -- the Legislative, the Executive, and the Judicial. The States, which wrote the Constitution by their representatives, provided in section 4 of Article IV particular protection for themselves.

Nation and States given representative government by Constitution
"The United States shall guarantee to every State in this Union a Republican [not democratic] form of government, and shall protect each of them against invasion."
They obliged the power over all, which they had set up for the common strength, to protect each in its Republican form, and to defend each physically.
Commenting on that provision for a representative form of government, Madison said in No. 43 of The Federalist:
"The only restriction imposed on them is that they shall not exchange Republican for anti-Republican [democratic] constitutions."
The choice by the Convention of the Republican or representative form over the popular or democratic government followed full and able discussions. In explaining what had been considered in this relation, Madison, the note taker of daily doings in the Convention, said in No. 10 ofThe Federalist, after pointing out the evils which factions had always done in democracies:
"The inference to which we are brought is that the causes of faction cannot be removed, and that relief is only to be sought in the means of controlling its effects."

Why Convention rejected democracy or popular control

The turbulence and contention which had given short lives and violent deaths to democracies would be controlled by representative government:
"A Republic, by which I mean a government in which the scheme of representation takes place, opens a different prospect, and promises the cure for which we are seeking."
By "the delegation of the government to a small number of citizens elected by the rest," Madison said, the public views are refined and enlarged "by passing them through the medium of a chosen body of citizens whose wisdom may best discern the true interest of their country, and whose patriotism and love of justice will be least likely to sacrifice it to temporary or partial considerations."
"Under such a regulation it may well happen that the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves, convened for the purpose."
The spread of a governmental evil

The Initiative, the Referendum, and the Recall led to other departures from the representative form of government. Officeholders or aspirants who hoped to advantage themselves brought out the direct primary. That primary suggested later the "Presidential preference" primary to seekers of the highest office, who believed that they could "swing" the crowd when the party might not be for them. In many instances the promoters of the "democratic" primary, which had been hailed as the voice of the people, failed of their expectations through them.
As the decayed apple in the barrel damages all the others, so the badness in principle of the Initiative, the Referendum, and the Recall spread after bringing the direct primary and the Presidential primary. In 1912 some members of the United States Senate, doubtless feeling

that they would be more sure of holding their seats if they could appeal to the people from the hustings than if their return were to remain with critical legislatures, proposed an amendment to the Constitution, first suggested in 1869, for the direct election of senators by the people of the States instead of by the legislatures. It was ratified and became effective as the Seventeenth Amendment in 1913.
The great purpose in the Congress frustrated
Thus the two Houses of Congress became alike, whereas the Constitutional Convention designed a House of People and a House of States. The House elected by the States to represent them in the Congress of their Union was destroyed. Two Houses now represent the people and none stands for the States. Does that help to explain why the States have been passing out as the controlling forces in their Union? The extent of their diminution will be fully shown later in this book.
The proponents of the Amendment supported their advocacy by saying that money had been improperly used in some legislatures by backers of candidates for the House of States. But, as we have said with respect to the Initiative, the proper remedy for the people was in electing better legislators, not in unsettling the foundations of the Republic. Besides, candidates for the Senate, in the primary to get the nomination and then in the election contest against the nominee of the other party to get the office, have spent more money than was ever reported as used in a legislature.

A very capable and upright senator from California declined to seek a second term because the expense of the primary which nominated him and of the election campaign which put him in the Senate had been so great that he said the security of his family had been endangered. He was fairly well-to-do, but this "democracy" which had been introduced in the name of "reform" he could not carry.

Some capable men excluded from Senate
Had the Seventeenth Amendment not been put in the Constitution, the legislature of California might have kept him in the service of the State by reelecting him many terms. Thus, Senator Hoar of Massachusetts, an illustrious statesman without means, who did not want to go to the Senate, was chosen by his legislature during his absence from the country and kept there to the end of his life.
Senator Morrill of Vermont and others of those times gave all or most of their working years to their country in the House of States. They did not need to "campaign." That was fortunate, because they had no money.
A poor man who seeks a seat in the Senate now must have "backers," and he may therefore cease to be the owner of himself.
The cure which was sought in haste and some anger through the Initiative and the popular election of senators might have been reached by choosing better legislators. But when the American, after long indifference, arouses himself he is prone "to do the right thing the wrong way."
Lack of learning in Constitution dangerous
It is hard to believe that an educator provided the "slogan" for those two decades: "The cure for the evils of democracy is more democracy." We have it.

In No. 62 of The Federalist the faith in the House of States was expressed (italics inserted):
"It is recommended by the double advantage of favoring a select appointment, and of giving to the State government such an agency in the formation of the Federal Government as must secure the authority of the former, and may form a convenient link between the two systems."
Thus the States would be in Congress as well as the People.
Evil results from decline of Senate
None of the transgressions of constitutional boundaries of recent years could probably have been accomplished had the House of States not been broken down.
It is a fact to be noted that the Sixteenth Amendment, under which Congress has, without specific authority, been gathering the "graduated" income tax of Communism, became effective in February, 1913, and the Seventeenth Amendment, emasculating the House of States, became a part of the Constitution in May of that year. That imports very serious dissatisfaction of a people, unschooled in the principles of their Government, with the system designed by the Constitutional Convention, which contained, Bryce pointed out, "fifty-five men who belong to the history of the world," and many others "less known in Europe who must be mentioned with respect."
Warning of Washington against constitutional innovations
In his Farewell Address caution was given by Washington to resist "the spirit of innovation" upon the principles of the Constitution, "however specious the pretexts."

General and thorough education in constitutional philosophy is essential to our safety.
A final word from The Federalist:
"The necessity of a Senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations."
The States in their House would be a check on sudden and ill-considered action by the House of the People.
In the day of the House of States the senators accepted seriously and discharged courageously the responsibility cast upon them by the Constitution in confirming or disapproving the appointments of the President. A confirmation then did not follow as a matter of course. InAutobiography of Seventy Years it is related by Senator Hoar that he went into the Supreme Court to hear Senator Daniel Webster make an argument in a case. Webster began by referring "very impressively" to the changes which had taken place in the Tribunal since he first appeared as counsel before it:
"Not one of the judges who were here then remains. It has been my duty to pass upon the question of the confirmation of every member of the Bench; and I may say that I treated your honors with entire impartiality, for I voted against every one of you."
The alterations in the American system of representative or Republican government here reviewed were as unnecessary as they were ineffectual for the purposes intended.

"Democracy" not suitable to representative system
A review of over half a century of tinkerings with constitutional representative government makes plain that "democracy" is unsuited to the United States.
The cases to be reviewed in the chapters following will serve to clarify the meaning in practice of the representative principle running everywhere through the Constitution. They will help also to an understanding of the structurally important — superior and sustaining — place of the States in the constitutional edifice.

Then it will be clear why, as President Cleveland said, "departure from the lines there laid down is failure."

Part One.

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