Eight score years ago we fought each other hideously over central questions of the meanings of our Declaration of Independence as the framework of our Constitution and Bill of Rights. Did the early compromises inherent in constitutional federalism truly mean that some individual States could overcome, for their own economic benefits, one of the core self-evident truths, “that all were created equal and endowed by their Creator with certain inalienable rights, including but not limited to Life, Liberty, and the pursuit of Happiness”? Those compromises were found necessary to form a persistent union of States after the failure of the Articles of Confederation. The underlying intent, expressed by the Framers of those documents (many of whom enslaved people in self-admitted hypocrisy) had been to evolve into more universal freedom under the supreme laws expressed therein. As George Washington, Chair of the Constitutional Convention, told the delegates, “If, to please the people, we offer what we ourselves disapprove, how can we afterwards defend our work? Let us raise a standard to which the wise and honest can repair. The event is in the hand of God.”. That last phrase confirms that he, as were almost all the delegates and Framers, was confirmed in his belief and faith in a specific higher power. Washington evokes the common belief of the time that all might work and strive for the good, but the outcome of that work and strife in the lives of individuals and societies is not guaranteed by man but by another.
Almost four score years later, the compromises tried to end enslaving others failed, and the nation fell into the strife of war to raise the standards promised but unachieved. A major effect of our Civil War’s costs in blood and property was a better definition of the relationship between the States and the Federal government. Hamilton, Jay, and Madison had earlier explained the intents of the Constitution to the public in The Federalist Papers. Number 45 contained the unfortunately vague key to the relationship of the States and the Federal government. “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.”. Note the difference in their capitalization of the respective bodies. Note the inherent direct limitations of the powers, not rights, of the federal government, and the less limited powers, not rights, of the State governments. Again, quoting Washington, “The {ultimate}power under the Constitution will always be in the people. It is entrusted for certain defined purposes, and for certain limited period, to representatives of their own choosing…”. Rights remained inherent to people; powers were granted to any and all levels of government solely by the people under the supreme law of our nation through exercise of those rights. That exercise is our personal responsibility, the obverse side of the coin of liberty.
That first Civil War produced a federal government charged with enforcing the Declaration of Independence, the Constitution, and the Bill of Rights in a uniform manner amongst all the States. The 13th Amendment clarified this newly recognized power when it forbids the existence of slavery or involuntary servitude within the United States and stated, importantly for our future cold civil war, “Congress shall have the power to enforce this article by appropriate legislation.”. True limitations were placed, by Constitutional process, via Section 1 of the 14th Amendment, on State powers which no longer could “…deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”. Section 5 of that Amendment again specifies that “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”. Additionally, our nation attempted to eliminate the concept of “otherness” in the applications of law and operations of our society in the 15th Amendment by codifying the ultimate exercise of universal personal rights, voting. That right “…shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”. This keystone of citizens’ powers superior to those of any governmental body as inalienable rights inseparable from those individual citizens derived from Washington’s further explanation of government’s transiently granted powers under the Constitution. He wrote “...whenever it is executed contrary to {the peoples’} interest, or not agreeable to their wishes, their servants can and undoubtedly will be recalled.”. As is seen in all the direct granting of powers to federal government by the Constitution and the Bill of Rights, Section 2 of the 15th Amendment states that “The Congress shall have power to enforce this article by appropriate legislation.”. Given the superior powers regarding uniformity of Constitutional meaning and enforcement established by our first Civil War, a layman (such as those who wrote our foundational documents) would believe this same process of enforcement only by representative legislative action applies to states and more local bodies of government. Neither the executive nor the judiciary is granted the power of specific enactment or enforcement outside of Congress or the lower legislative branches. Otherwise, the universality of the meanings of those documents disappears.
Despite that intended universality, the gains nurtured by the blood of our first Civil War were restrained yet again. Reconstruction became deconstructed in the compromised election of Rutherford B. Hayes. The clear meanings of our amended foundational documents were again blurred with the codification of segregation as “separate but equal” in the Supreme Court Plessy v. Ferguson decision of 1896. We once again established visibly second-class citizens. States resumed their nullification of civil rights of some; blatant violations of civil and criminal law were openly and actively ignored by various levels of government. Floods of immigrants from various countries were eagerly added to the groups whose inalienable rights were disavowed. Even our first “progressive” President, Woodrow Wilson, actively encouraged federal benign neglect of laws so dearly bought. Most in the favored class were all too willing to go along as we tried to maintain two Americas, separate and not equal. The century following the first Civil War was as dark a failure to reach those standards proposed at our beginning as in all the several centuries before the Revolutionary War. All the more so for having clearly stated that to which we strove. Although in his farewell address Washington was speaking of religion and morality, his words also apply to this unmet national duty. “In vain would {one} claim the tribute of patriotism who should labour to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.”
That vanity began to burn away in the Civil Rights movement three score years ago. The exploding prosperity of the Pax Americana after WWII was clearly unavailable to most who were not Caucasian, regardless of merit or effort. During our Cold War with communism we struggled, often violently, in proxy wars of legal, social, and economic progress towards true equivalence of opportunity for all as promised at our beginning. All those desegregating dominoes have yet to fall. Yet even as our asymmetric domestic warfare about race and identity continues to smolder and occasionally reignite, a larger underlying enemy is finally being recognized. This adversary underlays the long many-faceted defeats of equality amongst us. And it now threatens the liberty of all.
The genesis of this threat to our freedoms is a misapprehension of the Declaration of Independence. That document raised all the objections to prior forms of government. The Constitution sought to resolve all those objections. The Bill of Rights solidified the primacy of the individual above government. That primacy was to be enacted by the vote, empowered by specific laws and rules of officials elected by that vote, and not interpreted but individualized to particular circumstances by our courts, subservient to the laws and rules enacted only by those ultimately susceptible to the assent of the electorate. The specificities of our founding documents have long been subject to re-interpretation born out of the convenience of the societal moment judged by our government, not us. That was not the intention of the Framers, nor should it be ours. As Thomas Jefferson wrote, “On every question of construction [let us] carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text or invented against it, conform to the probable one in which it was passed.” Every law, every court decision, that has deflected us from our original intent and sought-after standards has had its basis in that squeezing or invention suiting the government’s perceived needs of the moment. Only now have our only court mandated by the Constitution, the Supreme Court, begun to return to Jefferson’s (and others) requirement of originalism and textualism. These two concepts are our only defense against the secret adversary that has long sought to disable our republican democracy and expunge our individual and national freedoms.
That adversary is far more dangerous than communism or socialism. It declares itself as the ultimate defender of our nation through constant attention to every detail of our private lives in pursuit of “the general welfare”. This Constitutional phrase has been the basis of much injustice perpetrated by our internal enemy and is an excellent example of the continued need of “originalism and textualism”. Noah Webster has been called the founding father of American scholarship and education. He established our new American version of the English language with his dictionary. This, unlike our elasticized foundational documents, did not “evolve” to suit the changing times. His 1828 edition notes that the word General had a meaning of “The public; the interest of the whole; the vulgar” that was currently not in use. The word Welfare is defined in the same volume as to persons but also as to states, meaning “Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity; of the ordinary blessings of society and civil government.” Thus, as found by scholars in reviewing the debates and writings of the Framers, this phrase referred to the relationship between the federal government and the states, not an empowerment of government over the people at large. As noted above, the powers of the federal government were to remain “few and defined”.
As our society became more diverse and complex, Congress, the Executive Branch, and the Courts began to ignore this original intent. Congress found it beneficial to shapeshift into a profession apart from the people and the economy, to pass broader less specific legislation whose particular applications in everyday life would be dealt with by the other two branches. The Executive Branch was initially composed of two individuals who were not “heads of state” but required by Oath of office to faithfully execute the laws of Congress and the Constitution. They had a handful of ministers to use the clearly limited powers of the federal government on behalf of those two sources, gradually expanded its size and reach with the silent assent of Congress and the courts. As we shall see that executive has become its own legislative and judicial body. The Executive Branch, actively enabled by the Judicial Branch, has assumed the making of law and the modern power of “nullification” via failing to faithfully execute law.
Our Judicial Branch is both a key problem and perhaps now becoming a key solution to the overall concept of managerial government by a technocratic elite no longer answerable to the citizens. Alexander Hamilton, along with Madison and Jay, concurrently explained the meanings and intents of the Framers of the Constitution in The Federalist Papers. In defining and explaining the role of the Judiciary Branch in Federalist #79, Hamilton writes that when one “considers the different departments of power….in a government in which they are separated from each other, the judiciary…will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them”. He and the Framers viewed the judicial branch to be a check and balance on the other two, but not a coequal partner in a triad of power. It was to be subservient to the Constitution and the Congress. Unfortunately, the Supreme Court, specified in the Constitution along with “such inferior Courts as the Congress may from time to time ordain and establish”, without defined numbers of members, could not be entirely free of conflicted interests. Specific members were appointed by a President and confirmed by a singular Senate to serve “during good Behaviour”, effectively a lifetime tenure. This vaguery, inherently containing the power of Congress to remove their consent, was meant, perhaps, to immunize those justices from outside influences other than the original meanings and intents of the founding documents and the laws passed by Congress. Nonetheless it did carry the potential prejudices of that President and that Senate well beyond the changing needs of the nation and the legislations passed by Congress, which has abandoned their powers over this self-defined arbiter of the Constitution and Congressional and Executive actions.
Granted, the initial power over membership in these federal courts was reserved to the States, since the Senate, advising and consenting (or not) on Presidential appointments, originally were appointed by the State legislatures. However, the 17th Amendment “revoked” this power of the States in 1913, returning it to the people as direct electors of Senators. While most will argue that this enhanced our republican democracy, others might say that it created a standing professional class of highly privileged legislators given their six-year terms, as opposed to the House’s need for re-election every two years. It diminished the restraining power of the States. As Congress and the Executive branch responded to the expanding affairs of the nation by expanding their actions and particular powers, the courts responded likewise by expanding their interpretations and powers over the actions of those Constitutionally more senior branches. All three found it helpful, necessary, and self-preserving to abandon the core concept of federal powers that were “few and well-defined”, to “promote the general welfare” of their stakeholders, not the States. Representational government found it beneficial to find and fulfill perceived needs of the people which the people had previously provided or avoided for themselves. Gradually the ever-expanding Executive Branch discovered self-interest in finding and fulfilling other perceived needs of the people which representational government had not fully accounted for in its ever-vaguer legislations. The full turning of the tide may have been our governmental response to the Great Depression. Our Executive Branch invented and assumed vast new powers at the stroke of the President’s pen. Congress often enacted legislation ex post facto validating these unconstitutional powers and serving their own persistence in office rather than preserving that Constitution. The courts, and the Supreme Court, whose initial resistance to these efforts were quashed with threats of packing, gradually and progressively substituted its interpretations of laws everywhere Congress had failed to clearly do so. The timeless parchment and iron oxide ink of our founding documents frayed badly and faded with the wars of the three now “co-equal” branches of government as each sought to maintain its powers and existence and extend its reach.
The death knell of individual political liberty and responsibility may have been a decision by the Supreme Court. Citizens United v. Federal Elections Commission was decided in 2010. Ironically a conservative group organized as a corporation sued to establish their “speech” during an election as a previously unrecognized Constitutional right. The McCain-Feingold Act had been passed by Congress to limit the ability of corporations and unions to influence, by propaganda, the electorate within 30-60 days of an election. The Court’s decision voiding any such restriction noted “The Congress shall make no law…. abridging the freedom of speech.” Since “The Framers may not have anticipated modern business and media corporations”, the Justices decided that this amendment must therefore refer to any entity that could spend money or issue statements. This despite that Court’s statement that “The right of citizens to inquire, to hear, to speak, and to use information to reach consensus is a precondition to enlightened self-government and a necessary means to protect it”. Again, in their decision “By taking the right to speak from some and giving it to others, the Government deprives the disadvantaged person or class {of persons} of the right to use speech to strive to establish worth, standing, and respect for the speaker’s voice.” (italics mine). Their key pronouncement, forever changing our political discourse to the advantage of monied interests over those of the citizenry, was “Political speech is ‘indispensable to decisionmaking in a democracy, and this is no less true because the speech comes from a corporation rather than an individual’”. In a final dissemble of common sense (the true language of our founding documents), the Justices used the example of The Federalist Papers that, by three individuals rather than corporations, promoted understanding and discourse of the Constitution, not an election. The Court noted that “The great debates between the Federalists and the Anti-Federalists over our founding document were published and expressed in the most important means of mass communication of that era—newspapers owned by individuals”. (italics mine). Now these new corporate rights have been expanded beyond those in the Bill of Rights. Social media corporations and the Executive Branch are immunized by Congress and the Court from liability for their own heavy-handed abridgement of the free speech of persons of all persuasions. We can see the detriments of ignoring the historically inherent validity of George Mason and the other Framers on the sanctity of the inalienable rights of persons as against the powers of administrative bureaucracies and now the private government of corporations.
While our Court has judged itself the final unquestioned resolver of both Congressional and Executive actions, that Executive Branch has invented, with Congressional connivance, its own “private government of corporations”. Every law enacted by Congress and every adverse event national or otherwise and therefore sanctified as a crisis by the Executive Branch, requires new administrative structures, procedures, buildings, and personnel to “faithfully execute” something in endless appeals to authority. These administrative bureaucracies live on without the possibility of closure regardless of effectiveness. Their leadership in the Senior Executive Service is tenured outside executive, legislative, or judicial authority. The head of the Consumer Financial Protection Bureau, for example, could not be fired for any cause by the President thanks to Congress. Problems are evolved rather than solved. Financing is no difficulty. Obscure taxes and fees are instituted by Congress or the agency itself. These “investments” are made with monies removed from private enterprise and citizens’ pockets or created as debt repayable by those enterprises and citizens. The federal administrative agency mentioned above, the CFPB, can finance itself without Congressional oversight or approval by drawing funding at its discretion from the Federal Reserve, also independent of Congress. These funds and others are multiplied many times over by creation of fiat currency through the Federal Reserve using a method first instituted, ironically, by Benjamin Franklin during the Revolutionary War via the Continental Congress. Medieval feudal lords clipped coins to expand the money supply; ours makes it up out of the thin air of our secular faith in government.
Our administrative feudal federal estates owe allegiance only to their members, not the people over whom they progressively enlarge their rule. These feudal agencies, outside the assigned limits of federal powers or the reserved powers of the States, have the authority to bring charges of violations of rules they, not Congress, created. And to judge those violations internally, assigning behavioral and/or financial punishment to the miscreants. These are completely outside the strict limitations of due process and trial by jury enshrined in the Constitution and Bill of Rights. This new estate of rule was established in 1984 by the Supreme Court in Chevron v. Natural Resources Defense Council, wherein the Court decided that the judiciary “generally should defer to agencies’ interpretations of ambiguous language in congressional statutes” (Dorman and Vadum Epoch Times November 2023). This allowed judges to avoid their duty of independent judgement based in laws passed by Congress. What is ambiguous and what its interpretation should be are at the sole discretion of that agency. We must give these agencies, and their federal overlords, homage, our labor, and a share of our production of personal and community wealth. Remember, our wealth is transferred to them not only by taxation and fees, hidden and otherwise, but also through debasing our fiat currency by the “desirable” and designed factor of at least 2% inflation. Central to the genius of this long-desired technocratic totalitarianism is a slight imperfection in its federal feudalism. The elected nobility of our Congress and Executive Branch seemingly exerts no control over their vassal agencies once they have been created. While either Congress or one of many Presidents has promised new limits on the administrative state, no fiefdoms or departments have ever been diminished or exorcised. We can extend our tenuous medieval analogy in discussing how this may be changing.
In those Medieval feudal societies, the “Church” played an often-pivotal political role. That unipolar church was outside the structure of the nobility and vassals who governed the plebians, yet coincident with it. This accessory structure predating feudalism, based in its own rules and existential faith, frequently balanced the powers and authorities of the nobility in ways both good and bad for the population at large. Yet it remained a central supporting column of that feudalistic society until the primacy and privilege of its interpretation of that faith was undone by Gutenberg’s printing press in the 1400’s. The primary source of that faith gradually became widely available to the peasantry and serfs, whose personal economic value had grown exponentially after the Black Death of the 1300’s wiped out a huge proportion of the tenancy. For many reasons than just these two, the Enlightenment followed with an explosion not only of scientific thought but also rediscovery of old philosophies causing a re-evaluation of the Church’s construction of the faith and everyone’s strict roles in it. These ancient philosophies, as well as the Reformation, contained the seeds acknowledged by the Framers in their construction of an entirely new form of government. Secularists may object, but that faith’s constitution, the Bible, is the pluralistically greatest source of ideas in our Declaration of Independence and Constitution.
For better or worse, our national history has anointed the Supreme Court as the church of our secular faith in individual freedom, personal responsibility, and limited government. Throughout that history the Court, much like the Church of medieval times, has adapted itself and its interpretation of our nation’s canon to the evolving actions and methods of the other controlling branches of our society. The feudal authorities knew unconsciously that they ultimately owed their existence and enjoyments to a larger populace who received limited protections in return for greater sacrifices of wealth and well-being. So too our federal government must at least pay constant lip-service to the wants and needs of our citizenry through our appeals to authority. But it does so by incrementally reducing our authority over our own lives. Like the serfs of old we accept this in return for the hazy principle of “security”, both personal and societal. We diminish our actual freedom to diminish perceived risk. Quoting Jeffrey A. Tucker, “…the state itself…has been historically the most socially damaging violator of human rights there is. We tolerate states to defend our rights only to find out that the state is the main threat to our rights.” But a second quote from him may yet be wrong: “…no one has ever come up with a technology or system that has successfully restrained the state once it’s created.” We, as individuals and corporate groups, have become more aware of these growing intrusions, and more informed in detail about them through our own Gutenberg moment of a web of information readily available anywhere, anytime, to anybody. A central tenet of the Reformation was renewed recognition that faith was an individual, one-on-one relationship with the creator of natural law. Intercession by a governing body was unnecessary. The Church served as facilitator of that relationship at the request of the faithful, not at the Church’s behest. Recent case arguments raise the possibility that the Court is now acting as a facilitator of our freedoms, rather than further blessing the behests of the other two branches. Martin Luther conserved the original meanings of the faith away from the progressive self-enhancing changes of a millennium. We may be witnessing such a conservation of the origins of our nation in the current Supreme Court.
This turn to challenging the growing supremacy of the administrative state may have begun with an outlier but is extending more deeply into the authorities and powers of that “branch” of government never specified in our three foundational documents. In Seila Law LLC v. CFPB the Court found that agency’s director’s immunity from Presidential authority unconstitutional. That same agency’s funding is now under scrutiny in CFPB v. Community Financial Services Association of America. The Court may rule that CFPB cannot continue to exist without specific Congressional funding as in all other areas of government as specified in the Constitution which says, “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law;” (Article 1 Section 9). Nor, perhaps, may CFPB decide how to allocate that funding aside from Congressional mandate (see below). This would be resounding success in retracting authority and power from an agency that was created by Congress and the Executive Branch to specifically exist and act outside of any checks and balances. Other cases are not so extreme but nonetheless of equal importance in returning to Constitutional original intent and meaning.
Several other cases threaten the precedent of the 1984 Chevron Deference noted above. Two cases against the Commerce Department involve whether the agency exceeded its authority in requiring commercial fishing companies to pay for federal observers on board their vessels to monitor their compliance with Magnuson-Stevens Fishery Conservation and Management Act. From a layman’s point of view, this required payment or fee is a kind of tax. It was not specified by Congress in the law. It returns us to our roots— “No taxation without representation”. That is why the Constitution says, “All Bills for raising Revenue shall originate in the House of Representatives,” but also require assent of the Senate and the President (Article 1 Section 7). Further, in Section 8, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,” and “To make all Laws which shall be necessary and proper for carrying into Execution…the Government of the United States, or in any Department or Officer thereof.” Given this clear language, it is hard to see how the administrative state, originally the servant of the Congress, “…has become feral, brazenly overrunning constitutional limits and threatening our civil liberties.” (Philip Hamburger, Epoch Times November 2023). Only, perhaps, through the incremental erosion of our founding principles finally amplified by the Chevron Deference and the judicial principle of stare decisis.
That conservative cornerstone of the judiciary indicates that current decisions should be based on precedent. Would that be the cornerstone of Congressional action—all based on the exacting precedent of the Constitution.
Those very agencies are also under scrutiny for their own judicial actions and punishments. Although the use of administrative law and administrative “courts” was found constitutional in 1977’s Atlas Roofing v. OSHA, other recent cases may rapidly limit these agencies and courts operating outside of the 7th Amendment’s right of jury trial. Administrative courts often allow testimony and evidence that would be inadmissible in a regular court of law, and limit defendant’s procedural protections. Previously the SEC had enforcement jurisdiction only over those in the industry who voluntarily submitted to their authority. The 2010 Dodd-Frank law, responsive to the 2008 financial crisis, newly empowered the Securities and Exchange Commission to sue anyone in their own administrative court system and enforce financial and behavioral penalties. In SEC v. Jarkesy, originating in a 2013 accusation of fraud and financial penalties as well as expulsion from the industry for the now plaintiff, the Supreme Court may further the findings of federal appeals courts in New Orleans that ruled the SEC’s court system unconstitutional. Justice Ketanji Brown Jackson may complicate the issue, opining that older potential violations would go to federal courts as per common law, but that potential violations of newer regulations by the agency could continue to be handled by the agency’s administrative courts. Apparently, the 7th Amendment begins to dissolve after some as yet unstated year. Should the SEC’s judicial and enforcement powers be returned towards their historical limits, themselves perhaps questionable, this could have profound implications for limiting administrative actions outside the judicial branch by the FTC, the EPA, and many other agencies. To quote the Wall Street Journal, “Today’s administrative tribunals resemble those that the British government used to punish colonists and religious dissidents before the revolution. The British government used jury-less admiralty courts to impose civil penalties on colonists for violating the Sugar and Stamp Acts…. The Founders pushed to enshrine the right in the Constitution to prevent the new Congress from creating special forums to adjudicate civil penalties as Parliament and the King had done….Restoring the originalist interpretation of the Seventh Amendment would strengthen safeguards against tyrannical government.”( An Administrative State Watershed WSJ November 27 2023). Specifically, extra-constitutional government by managerial agency run by technocratic elites.
Other agencies have carried the idea of acting without permission or forgiveness even further. The Federal Highway Administration is now requiring state departments of transportation to reduce tailpipe emissions. They fail to note the many details and inconsistencies that cannot be managed by a blanket rule. Congress expressly rejected this new rule on tailpipe emissions during their internal debates on the 2022 Bipartisan Infrastructure Law per Senator Kevin Cramer, but the executive branch now says that since Congress did not use the opportunity in passing that law to amend current statutes that they “intended to leave such determinations to Agency expertise to be handled by regulatory authority.” Chevron gone wild. This despite the 2022 Supreme Court ‘major questions doctrine’ of matters of great political or economic significance wherein it clearly stated that agencies must identify “clear congressional authorization” for their newly claimed authority.
But the Supreme Court’s counter to the Chevron Deference may be equally egregious. Their 2022 recognition of ‘the major questions doctrine’ in West Virginia v. EPA requires, without Constitutional basis, that the courts presume Congress does not delegate policy decisions of great economic and political import to agencies. While this seemingly provides a rein by the courts on administrative power, it also might be interpreted as codifying a 1993 Presidential Executive Order defining significant rules as those that are “likely to have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or state, local, or tribal governments or communities.” (George Washington University Regulatory Studies Center). What are great economic or political imports? If we accept the content of the 1993 order as a kind of stare decisis, we have a monetary yardstick that changes radically over time due to inflation. Going by the second part of that statement, we now have principle that satisfactorily encompasses all the nation’s activities but rests on the incredibly nonspecific phrase, “…adversely affect in a material way”. This extends the universe to be decided by the courts, not Congress, in an infinite manner. That opens another leak in Constitutional rights as possibly justifiable by Justice Sandra Day O’Connor’s concurrent judgement in Employment Division v. Smith, 1990 where in she dangerously opined that the state had the power to overcome the clearly enumerated right to the free exercise of religion because that state had a compelling interest in doing so to prevent harm. Remember Covid, anyone? Incremental change is the creeping enemy of liberty. The true precedent may be that statutory silence regarding powers granted in legislation does not constitute ambiguity requiring interpretation by the agency or the courts. It is silence. Congress’ proper role is in making far fewer laws that carefully and very clearly define their scope and strictly limit actions that can be taken under that authority. Perhaps a proper role of the Supreme Court is to send any law promulgating unpredictable regulations based on ambiguous language back to Congress, to be immediately rescinded and refined or abandoned as futile or in violation of a clear cost/benefit ratio. The first proper role is readily available in response to the peoples’ insistence; the latter proper role would probably require a Constitutional Amendment. Thousands have been proposed, only twenty-seven have succeeded.
One of those score and five amendments is the basis for the most relevant case facing our Supreme Court. It covers not the funding or actions of agencies, but the very basis of funding and action of the whole government. Moore v. U.S. questions whether the 16th Amendment that gave Congress the previously unconstitutional power to “lay and collect taxes on incomes, from whatever source derived,” applies to unrealized capital gains. This case will be a complex three-dimensional web of economic, financial, legal, and political linguistics. After all, capital gains, realized or other, did not exist at the time of the amendment. Nor did many other financial or economic items or terms. This amendment came about after J.P. Morgan and other private bankers essentially rescued the U.S. government from bankruptcy and was designed to establish a more stable source of revenue to run the many enlarging endeavors of our federal government. Following the simplistic and straightforward layman’s approach established by the Framers in making the Constitution (remember they came from all walks of life), we might choose to concentrate on the phrase “from whatever source derived”. Source is an activity, and the Moore’s actively invested money in a foreign company. That company reinvested profits internally and did not pay out any dividends or other profits from their investment. However, those reinvested and undistributed “profits” held and used by that company became retroactively taxable back to 1986 under the Tax Cuts and Jobs Act of 2017. A portion of those unrealized profits that were reinvested under sole control of the company and not held on the Moore’s’ behalf were allocated to them as unrealized capital gains at an arbitrary unfixed floating rate. The key word in “commoner’s law” is derived. To derive is defined in a common dictionary as to obtain. The Moore’s did not obtain these funds, nor were they going to in the foreseeable future. There might be capital gains that would be obtained once they sold their investment, but not before. And this retroactive tax ignores Article 1 Section 9, “No Bill of Attainder or ex post facto Law shall be passed”. Our common man, invoking common law, might also look to the term “income” in that amendment. As noted in 2018 by Adler and White and repeated by them recently (“The Supreme Court Will Finally Decide What ‘Income’ Means, WSJ), this retroactive, mandatory, ‘repatriation’ tax in their words “…isn’t a tax on income and therefore is an unconstitutional direct tax. Congress {is taxing} the undistributed earnings of a corporation retroactively to 1986…based on liquidity {a valuation made in monetary terms by accounting}, making it not an income tax but a balance-sheet tax.” Perhaps too sophisticated for our lay understanding—but underneath all that is the simple question. Isn’t income for the purpose of the 16th Amendment’s taxation power money actually received by an individual, not monetary value ascribed by whatever means by a company to itself? As noted above, money, fiat or otherwise, must be actually received to be ‘realized’ as income. The implication of this law is clearly stated by Adler and Washington and easily understood. “If realization is no longer a requirement for taxable income, then ‘income tax’ has no boundaries in the Constitution, and Congress can directly tax wealth.” Or, more ominously, perhaps agencies can decide to tax various categories of wealth, or wealth per se as they arbitrarily define it. We noted above that one agency defends its actions, unspecified in law, “{that}Congress…intended to leave such determinations to Agency expertise to be handled by regulatory authority.” California, through its Public Utilities Commission, had dictated that private utility companies in the state soon begin charging different rates for electricity based on the customer’s income. This is a short conceptual distance from the self-funding power of the CFPB, or the administrative penalties adjudicated outside of any court by numerous federal agencies.
This long, silent, self-guided drift into technocratic management of our country--not by a representative body who decisions are strictly enforced faithfully by an executive with limited scope under checks and balances by a judiciary of textual constructionists--does not require a grand conspiracy. The dissolution of history’s first and only democratic republic begins with a coincidence of special interests that are outside of those clearly expressed in our founding documents. The solvents are privilege, power, and financial enrichment, all more addictive than narcotics and insidiously destructive of political altruism. They conciliate all branches of government in favor of its practitioners, not its citizens. Corporatism easily replaces the governmental influences of that citizenry with its newly established enjoyment of constitutional rights. These four bodies persistently engage in miscegenation through incrementally inventing and empowering the administrative state. Their progeny, that administrative state, immune from the public and largely free of limits of its membership via virtually permanent employment in and out of government, knows their own permanence and the transience of the others. Our current Supreme Court may have awakened to this real and present danger, and may begin, through the cases noted above and others yet to come, to place new retaining walls around our national foundations. But the Court as our ultimate safety valve has adapted itself and its interpretation of our nation’s canon to the evolving actions and methods of the other controlling branches of our society, with its medium-term direction dependent on appointment by a President and confirmation by a Senate. Both change in direction with the winds of popular expedience. So finally restraining and even removing our gentle, caring technocratic totalitarian regime remains in our hands, through our active resistance to its overreaches and our election of representatives and executives who choose to return to our roots.
Please, reader—ask yourself—when was the last time you read the Declaration of Independence, the Constitution, and the Bill of Rights? Who have you discussed these with? Have you taught your family members about them? These irreplaceable cornerstones of our version of civilization are as readily available to you as any influencer on social media. And when was the last time you heard someone ask any government official, elected, or appointed, if they had done so? The answers to those questions will determine our national outcomes.