""It would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights... Confidence is everywhere the parent of despotism. Free government is founded in jealousy, and not in confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power... Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go... In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution." --Thomas Jefferson: Draft Kentucky Resolutions, 1798. ME 17:388 "
♫ ♪ ♬ You say you want a Constitution ... well ya know, we all want to change the world ♬ ♪ ♫
In the comments of a previous post, Lance had asked “At what point do you think the Government started to poke holes in the Constitution? Or, who was the first President to begin weakening it?”
That's a couple of good questions, and being a favorite subject, it set me off on a big time major longwinded reply… which I’ve mercifully paused, stopped and chopped. The answers I’d like to give, just have to wait until I finish my series of posts on Justice. So far I've taken it glancing back through Rousseau, Descartes, Hobbes, Bacon and Machiavelli and have come back forward from Homer to Solon, Pericles, Aeschylus & Sophocles, but until I’ve taken these posts from Aristotle on up to Locke… I've just got to have patience, without those posts being sourced first, giving my answers now would be like setting flower pots on shelves that aren’t there yet - it might get your attention, but it'd just leave behind a big mess.
The reason I began my series on Justice, was because of an argument with a libertarian wherein we were separated by a seemingly common language, and I wanted to at least have the concepts as I understood them out here so that what I wanted to say would at least have some substantial explanations and arguments to fall back on. What I found in trying to answer Lance’s question, was that I was going to either skip over, give abbreviated explanations, or jump ahead of myself and give even more extended explanations… but that would itself have to skip over, give abbreviated explanations or extended ones… you see where that’s headed?
Yeah. I got up to page 27, and barely into the 1800's, before I finally admitted that I really just need to have patience, and attend to first things first. Not my favorite thing to do, but, there you go.
Still, Lance’s question is a good one, and I think there's one aspect of it that I can answer now, and it is the one which is, and has been, the most damaging to our constitution and to our nation and to ourselves.
A lot of the answer depends on what you mean by ' weakening ', and what actually constitutes damage to the Constitution - but more importantly I think it also assumes that the legislature, the administration and the courts, actually have much more power than I for one give them credit for - or at least more than they are capable of sustaining for any extended period of time.
In terms of actual damage to the constitution - how it functions and is expected to function – some trace it to Presidential acts, some to congressional legislation, some to decisions of the Supreme Court of the United States (SCOTUS)… but this seems to me to give too big a break to We The People – remember, we did elect them after all, and as a people, we have passed several of what were essentially anti-constitutional amendments which arguably have done more physical damage to the constitution than all the previous acts of the three branches of Govt combined.
Still, there have been several issues that have been key to the weakening of how the Constitution has been allowed to operate, So for starters and future reference, here’s an abbreviated list of some of the more damaging actions done to the Constitution:
- Charles River Bridge v. Warren Bridge,
- Dred Scott
- Morril Act
- Plessy v Fergusson
- Slaughter-house cases
- Sherman Antitrust Act.
- Establishment of Regulatory Agencies (FDA, etc)
- Federal Reserve Act
- Lochner v New York
- Federal Roads
- The process of passing the 14th amendment (not the amendment itself, but the process of passing it - the manipulation of the system and raw use of power was deplorable)
- 16th, 17th & 18th amendments
- Motel wage
- Gold Clause
- Brown v Board of Ed
- Kelo v New London
Citing such a list is a bit misleading though, because it gives the impression that each of these issues actively did something to the Constitution, rather than their merely registering the fact that something had already been done to it, to which these instances are merely the visible effects of, and that’s the key issue I’m going to touch on in this post. There's a quote widely attributed to Cicero that was brought up the other day, which fits well with this,
""Do not blame Caesar, blame the people of Rome who have so enthusiastically acclaimed and adored him and rejoiced in their loss of freedom and danced in his path and gave him triumphal processions. ... Blame the people who hail him when he speaks in the Forum of the 'new, wonderful good society' which shall now be Rome's, interpreted to mean 'more money, more ease, more security, more living fatly at the expense of the industrious."
--Roman statesman Marcus Tullius Cicero (106-43 B.C.)(I haven't found a source for it, other than from this Florida Supreme Court Justice, maybe his own translation/characterization of this)"
And whether or not Cicero actually said it, I heartily agree with it. And along those lines, one of those points mentioned above in particular, enabled, even ensured, that all the ones following it would be merely registering the progressive damage done to the Constitution to date, which that one was most instrumental in bringing about. For that reason, I think we’ll get closer to the damage that has been caused if we concentrate less on the actions themselves, than on the realms the Constitution has suffered damage in, those being of how it is practiced, how it has been interpreted and how it has been comprehended. So while I'm not going to be able to get to all, or even many, of those key issues in this post, I’ll go ahead and point towards some of the significantly damaging ones, focusing less on them, than what made them possible, and I'll do that by taking three high and wide turns through what has been done in the legislative area, then judicial area... then the... last area (the suspense builds!).
But first, before going any further into it, a couple fundamentals on the Founding Fathers, Americans, and the Constitution.
Such a list summarizing the Founder's views usually ends at #3, sometimes #4, but there is a 5th point that should be not only noted, but focused upon. The constitution is the guide for 'binding them down', but IT isn't the chain that does the binding, the "in plain sight" is. The power of the Constitution is that it is founded in universal truths extracted from thousands of years of experience of Western Civilization, and because it is a written, fixed set of rules and procedures that are plainly visible to all, when those in power are seen straying from the enumerated powers of the constitution, it is by the fact of it's being "in plain sight" that everyone is informed that a bad thing is happening.
- One, they knew that man can be virtuous.
- Two, they knew that you can't rely upon men to always be virtuous.
- Three, Govt is necessary, for as Madison summed it up
"If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controuls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to controul the governed; and in the next place, oblige it to controul itself.".
- Four, as that quote points out, because govt is power, and is run by men - flawed & unflawed - it needs to be restrained by something which will be in plain sight of everyone - our Constitution
But that's a bit misleading, isn't it, because of course... the Constitution... is paper. Nothing but. IT can't do squat. WE are the ones who must do the telling, WE are the ones who must raise the alarms. For those in power to be effectively bound by the Constitution, it is We The People who must pay attention to it, and to them, and it is We The People who are ultimately responsible for seeing that all the branches of government - Legislative, Judicial, Executive - are submitting to our rules of restraint.
The U.S. Constitution is our tool for restraining those in power from exerting their power over us to the point of taking away our lives and liberties. The power of the Constitution lies in We The People getting angry when it is violated. No anger, no workee.
As Franklin replied to the little old lady who asked him what the constitutional convention had given them, he answered,
"A Republic Madam... if you can keep it."See how that works? No anger, no workee. Ok then, with that clue given to my last point, we'll move on for the moment.
First, to touch lightly on a couple of the legislative actions which in practice have caused operational damage to the constitution and to the rule of law, I'll try working my way up from tangible issues to the more significant, though less obvious ones, as we go.
What actions were, and were not thought to be constitutional have been argued over from day one. The meaning and 'original intent' of the Constitution has been argued over since the original first congress first sat under it. For instance, there were huge battles between the Madisonian/Jeffersonian camps and the Hamiltonian/Adams's camps (and not a little amongst themselves), and each of these camps accused the other of doing major and deliberate harm to the Constitution... but in these types of issues, IMHO, not even Hamilton’s U.S. Bank nor Adam’s Alien and Sedition Acts, did any real harm to it. And for you Civil War bugs, some of you might be interested to know that the South wasn't the first group of states to threaten to secede from the Union - several New England states, Massachusetts among them, seriously considered seceding from the Union to form a more pro-British confederation (possibly even joining with Canada) in 1804, looong before the Civil War. And in the War of 1812 several New England states refused to send troops to our War!
Just think of that next time you hear someone ranting about how Iraq and Afghanistan are 'tearing us apart!'
We The People? We The Pansies, more like.
I do not think that any of these issues, significant as they were, did any real or lasting damage to our constitution or to our understanding of it, I think these were simply instances of a new nation actively debating about how to properly function within the entirely new concept of a National, Constitutional Representative Republic, and I don't think they either intended to, nor actually caused, any real lasting harm to the Constitution through their actions, enthusiasms and yes, blunders.
If anything these were signs that our Constitution was healthy and strong. Mere disagreement, is not destructive to our way of government. So... if major factional disagreement, even to the point of states discussing secession, if that isn't a sign of damage to the constitution... what is?
The answer goes to the heart of what a constitution is, and to what our constitution requires in order to constitute the basis of our government.
As a few congresses and administrations passed through the Constitution's restraints, they began to argue over not just about what it meant, but to chafe under what it didn't allow them to do and some of those actions did begin to have long reaching negative effects. As these issues began to bubble up they involved congresses and administrations and judiciaries in attempts to take advantage of two of the strongest characteristics of Americans, strengths which to a great extent define us to ourselves and to the world, and in their best intentions, they have been turned against us, judo-like, to become our greatest weaknesses, and even became something which later villains (intentionally and unintentionally) would play on to manipulate and do real harm to our Constitution.
One of those strengths is the real heartfelt American urge to ‘do good’ in the world, and the other is the ever present urge to improve things - virtues both, for individuals - but only if guided by virtue. Misapplying these prevalent desires has had real long reaching, damaging effects, and they propagate in different shadings of them being repeated continually down through the centuries. These aren't what caused damage to our constitution, but they have been extremely useful tools in the service of what has caused the damage we are experiencing today.
Almost from the very start there were politicians seeking to 'do good' - via other people’s money, I've mentioned several times before about Madison getting ticked off at congresses attempt to spend the then princely sum of $15,000 on refugees, saying
"I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents."That the American people themselves do value such benevolences can be seen in the billions given from the pockets of individuals for the relief of victims of Tsunami's, hurricanes, floods, famine, disease & earthquakes worldwide, as well as to local disasters like Katrina. We The People are willing and eager to help others, volunteering our own donations of our own time, effort and money, even when economic times are tough. But that laudable sentiment - and it is itself a distinctive achievement of America - when volunteered out of generosity - becomes perverted, when that inclination is taken advantage of by some in order to seek to take the time, effort and money of other people, in order to offer their wealth to aid those who they think should receive it, and how much they are to receive.
This is not just a matter of technicalities over who signs the check - a great evil is done in this, when what is designed to protect our rights, is employed to violate them. But something more happens here too, far beyond the action itself, for because we Americans tend to approve of such benevolences we become inclined to overlook the overstepping of the strict bounds of the constitution in pursuit of those efforts, sure we grumble, but in the end we mutter "It's a good thing'... or 'it's a needed improvement", and the long lasting 'accomplishment' of this is that the ability for those in power (in D.C. and those at home (you are not excused here!)) to slip the constitution's bonds, and that circumvention becomes just that much easier to accomplish the next time, that much more unremarked upon the next time, and in that process power becomes just that much easier for those who have it, to wield it, with just that much less restraint upon their ability to do so.
Similarly the urge to improve things, to do away with the crude or botched, to replace the waste of inefficiency with something more effective, productive and even elegant, is also an urge that is ingrained deep within us - you can see it in our interactions in the world with things as varied as transforming a clattering hunk of tin that was the Ford Model T, into the sleek and thrilling Ford Mustang, or within ourselves in enduring the long process of Education, and with a man living up to the woman he wants to impress... when such activities are engaged in, by choice, upon our own persons and property, it is a magnificent force to behold, but when misappropriated and mishandled, it too becomes a tool destructive to those very rights of liberty and freedom which gave rise to them. If your memory is short, you can find abundant evidence of this in the playing out of President Johnson's 'Great Society' transforming our inner cities into ghetto's, or in the examples of Govt seizing private land on behalf of corporations - most infamously in Kelo vs New London, and also in the results of modern 'education'.
And of course turning that strength towards ulterior purposes has been engaged in by one congress after another since the founding. Congress after congress, has sought to engage in what they saw as 'grand improvements', in things like public works bills at the federal level, and in these efforts we get closer to examples in practice that resulted in lasting damage to the Constitution, as they have (and are) the deliberate attempt to establish the practice of exercising power without having the authority to do so - the Constitution enumerates no powers to the government to engage in such activities. When we see it, our constitution relies upon our forcing ourselves to look past the good we think we see, and towards the real danger we don't see being wrought.
The big complaint of proregressives like Woodrow Wilson is that the Constitution holds them back from doing the 'good' things they desire to do... but of course the whole point of the checks and balances that were put into the constitution were for that very purpose of slowing down and restraining 'men' with power from doing with their power over others the 'good' they would do 'for them' - it's not a flaw, it's a design feature! It's the whole point of the checks and balances!
A case in point can be found in one of first of the perpetual 'Roads Improvements" bills; in the early years Madison essentially told one congress, 'yes, you've got a good point, building these roads and canals would be a good thing, but... they don't qualify under those powers enumerated in the Constitution, I don't disagree it would be a good thing, but you should propose an amendment to the Constitution, make it constitutional and I'll happily support that, but as a bill, I've got to veto this'. But more than just vetoing the bill, Madison gave an explanation of why he vetoed it, and that explanation could, and should, serve as an excellent little primer for our current crop of congress critters like Pelosi, Hoyer, Reid and Obamao - and not a few Supreme Court Justices - regarding the proper limits of the commerce clause, which they all like to pretend is so elastic. I think that Madison's explanation is so good, that I'm going to go ahead and post here almost the entirety of it, his Veto Message of March 3, 1817,
"...I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.
The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation within the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.
"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such a commerce without a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.
To refer the power in question to the clause "to provide for the common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.
...If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.
I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and a reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it..."
And still - clear as that was, decade after decade this very same issue continued to come up, and time after time they were vetoed again, and again, by Presidents as varied as Monroe, Jackson, Tyler, Polk, Pierce, Buchanan & Cleveland... and probably others as well.
A telling point that shouldn't be lost on anyone, is that the people most commonly responsible for these bills, were men such as Henry Clay, pro-slavery politicians and yet odd as may seem, 'slavery' isn't the important issue here - some of them opposed it - but still, their conception of 'Rights' in general, and 'property rights' in particular, was such that they afforded no defense against slavery (something they have in common with modern leftism - a leftist doesn't oppose slavery on the basis of Rights, only on the grounds of emotional response to it). And while most of these politicians were Democrat, there were quite a few who were Republican as well - but before you let that surprise you, or lull you into an "all politicians are such @#%..." rant, there was a common denominator at work among them here, and it wasn't their party affiliation, but their philosophical affiliation - and that philosophical common denominator was that they held what would become the 'progressive' view of rights, of rights as being founded in acts of legislation, rather than in the nature of Man, and for the needs of the 'greater good' - which neatly enabled a view of Individuals and of Rights that made it exceedingly easy to also support Slavery, rather than the original understanding of Rights, of Individual Rights and their deep roots in Property Rights, as found in Natural Law.
Such a view of rights also lines up exceedingly well for those eager to take advantage of our two distinctive American traits of desiring to 'do good' and of making 'Improvements', and are with such an understanding of 'need' and 'greater good', they inevitably work to turn those good intentions against our actual rights, hijacking peoples good intentions into becoming a battering ram against our freedoms and liberty.
It wasn't until the coming of the Pro(re)gressive Era (very roughly 1860-1920), hitting full power between the administrations of Teddy Roosevelt and Woodrow Wilson, that such federal roads improvements bills finally passed. Even the Sherman Anti-Trust Act (and being a supporter of freedom and the Free Market, I assume I don't need to say how god-awful that thing was) was mostly ignored by the SCOTUS for a decade, until TR came into office. It wasn't until Woodrow Wilson that the first federal roads bill succeeded in overcoming the original ideas of the constitution as expressed by Madison a century earlier, and sustained by one president after another across parties and decades.
For a Federal Roads Improvement Bill to be able to pass, it required overcoming (or evading) the original understanding of the Constitution as expressed by James Madison, an understanding sustained over and over across one decade after another, and that wasn't possible, until Woodrow Wilson. And it wasn't a matter of his personal charisma - anything but - it was a matter of something in the minds of the American people having been recast and replaced, so that these new traditionally anti-American notions, now seemed pro-American.
Something had changed, and Wilson was the first (to Teddy Roosevelt's frustration) to be able to truly capitalize upon it. This breach in understanding is clearly visible in how the Federal Road program had come to be viewed,
"In the 1907 case Wilson v. Shaw, the U.S. Supreme Court officially gave Congress the power "to construct interstate highways" under its constitutional right to regulate interstate commerce."The SCOTUS 'gave' congress the power? Which Article of the constitution do you found that in? But that is the typical top down view of proregressivism (and what lawyer and judge doesn't see themselves as being at the top?). In the SCOTUS decision which opened the way for these bills, Justice Brewer admiringly references a previous case favoring railroads, that asserted,
"It cannot at the present day be doubted that Congress, under the power to regulate commerce among the several states as well as to provide for postal accommodations and military exigencies, had authority to pass these laws."Cannot be doubted? How is it that James Madison, the Father of the Constitution, not only doubted that congress had such power, but clearly expressed those reasons for them in his veto of just such a bill under the same guise? Something changed... what was it?
It is in that 'uncertain something' where we will find that the real damage to our constitution has taken place... and judgments such as Brewer's, and bills such as the Federal Roads Bill, were just the visible symptoms of that very real, and lasting, damage (more in a bit).
Road House Blues
That initial roads bill was of course expanded on over the years, as are nearly all government programs which enable congress to seem to be 'doing good' and making improvements for their constituents, and much later it received it's inevitable first hyper-expansion under Eisenhower in the form of his interstate highway bill, an expansion which he justified around those few remaining limitations on federal power still remaining after FDR, by doing an end run around them, claiming that it was all being done for National Defense.
Maybe it was... but his pretext did far more for establishing a practice of end runs around the Constitution, than it did for national defense, and it has now become in our day, an annual, expected and almost entirely uncontroversial issue, nearly rubber stamped - the only arguments are over which politicians will throw around which billions of our dollars and to where.
Some might say "Now come on, such things are real improvements and couldn't be done without government help"... which is the same common sense argument they used to justify 'partnering' Government with industry going back to the Railroads - such iron roads across an entire nation would be, it was said, impossible to build without governmental power, exceptions & subsidies... and as common sensical as that argument is, it might even be a believable argument, but for people like J.J. Hill, who built the Great Northern Railroad, explicitly without government assistance, or the much trumpeted Govt led 'Human Genome Project' which despite it's billion$ of dollars of funding, was soundly beaten by privately funded and directed project... or even in our own day, what people like Burt Rutan has done and is doing in
wining the X-Prize by developing a vehicle which can enter space at a fraction of the massive cost, time and resources appropriated and expended - and abandoned - by NASA.
It's also rather odd how those who are so against issues such as urban sprawl, and shopping malls, and materialism and the break up of families, are the same folks behind the reams of government regulations, zoning rules, controlled community growth policies, which have practically mandated the construction of unimaginative, bland, undifferentiated sub-divisions, bedroom communities, business and industrial parks and industrial style schools which have effectively separated one socio-economic class from another, which have removed businesses from their communities (which modern subdivision has a 'corner market, bar, or corner anything?), which stratify society, have separated parents and children from those teaching them, and moved young families form grand parents. The very policies proregressives have pushed for, have fostered and molded those issues which have become their pet problems in the first place - look into the origin of them and you'll find them to be the ideas of, you guessed it, progressivism... do they ever stop to wonder whether or not, like the proverbial foolish farmer who tries to pull his green shoots up early and kills the crop, have they ever stopped to think that maybe their interposing the power of government to hurry up progress, maybe by that very action, that of pushing through roads and highways and more before the community had actually developed to the point of being able to accommodate and afford such things - financially and socially, maybe forcing a 'mature' infrastructure upon an as yet immature community... might that not in some way be the very cause of the dysfunction which they continually wail about?
Yes, I know, I digress... that way lies a separate windstorm of words, best left for a future post.
The important issue for our purposes here, is to be seen not in the governmental actions themselves, but the willingness to rationalize them and to allow without objection, what was known to be clearly wrong just a short time before.
From Legislation to Judicial Opinions
Similar misuses of congressional power, in unconstitutional actions, and SCOTUS decisions, can be seen in cases like the Slaughter-House cases, and Plessy v. Fergusson, these were cases which (more in a moment), IMHO the Right side lost, the 'winning' opinion is summed up as,
" the state law is within constitutional boundaries. The majority, in an opinion authored by Justice Henry Billings Brown, upheld state-imposed racial segregation. The justices based their decision on the separate-but-equal doctrine, that separate facilities for blacks and whites satisfied the Fourteenth Amendment so long as they were equal."but as in situations which crop up often in SCOTUS cases, the losing opinion, written in a dissent, as with such as Justices Harlan and Fields, pointed the way back towards proper decisions, and the next couple decades sometimes called the laissez-faire court, tried to follow them... but they lacked a certain something... several 'correct' decisions were made for the wrong or faulty reasoning’s, and the courts crippled dysfunction of Rights, collapsed back upon themselves with the furor of FDR's New Deal. What was it that they lacked?
Attack of the lack
At the opening of the 20th Century, the constitution was rocked with a trio of progressive, deeply anti-constitutional (but I repeat myself) amendments which, though they were constitutionally passed, were the most damaging of all direct actions ever taken, such as
But even these (with the exception of the 17th amendment (this is a full post on it's own, and is for later in my Justice series, but I have done a couple (somewhat riled) posts on it, by way of the foolish idea of term limits, here and here)) inflicted only minor damage - to the Constitution itself that is, they were after all physical amendments and as such were (and still are!) readily repairable, as evidenced by the repeal of the 18th amendment via the 21st amendment – and while they have set dark precedents, and have caused untold damage (the rise of the Mob in prohibition alone was a massive hit to the culture), it only takes one congress and/or supreme court, to overturn such a precedent, or to repeal a discredited amendment once, that is, it’s error in understanding becomes clear.
- the 16th amendment which introduced income taxation ‘only for a few’ and ushered in the Fed and federal control over the economy.
- The 17th amendment, which for all intents and purposes abolished Federalism.
- and of course the 18th amendment, which banned the sale of alcohol and Prohibition.
The ability to resolve things by way of legislative mechanics, however, began to change with
Plessy v. Ferguson, and accelerated past being able to catch up to, with Lochner vs. New York.
Far more damaging to the Constitution than acts of legislation or even constitutional amendments, have been a number of decisions of the Supreme Court, because as judicial decisions, they are expressions of ideas, rather than just the mandating of particular actions directed through legislative acts or amendments. Typically, SCOTUS decisions don't only apply to one ruling, but to future legislation as well, and they also have long ranging affects upon the judicial thinking of many successive judgments, and what with there usually being a reticence to overturn precedent, and they even have widespread affects upon cultural behaviors (Roe v. Wade comes to mind) - they set precedent far wider than in just the courts themselves.
The Constitution itself has been damaged by many of these decisions, but still they are but rulings, and they only need the people to realize their inapplicability and to raise their voice to say 'enough is enough' to begin the process of changing them, and though that change will not be immediate, that popular understanding will eventually penetrate the court itself and overturn the prior decisions. However... that can take a long time, and such change requires something more than simply adding a new justice onto the court in order to bring them about - when only justices change, and not the wider ideas, those changes tend to be more incidental than fundamental - even today decisions like Plessey v. Fergusson haven't been overturned, not even by Brown vs Kansas Board of Ed ( would that it had... we'd have been spared much of the wreckage which has followed in it's wake through the later half of the 20th century - more later), the Warren Court merely repackaged the earlier error and regifted it to the American people with a prettier bow on top.
As we just saw, one place you can readily see that fundamental change has taken place, is in the obvious differences between how the Commerce Clause was understood by James Madison, and how it was interpreted by later justices, such as Justice Brewer, who you'll recall after quoting a few previous lesser decisions, says,
"It cannot at the present day be doubted that Congress... had authority to pass these laws.", in his view, and that of latter judges, there was a real difference between their understanding and Madison's understanding of this clause, and it was deeply significant, and it has determined how the Constitution is thought to apply to the powers of Congress, the Rights of Citizens, the sanctity of contract and to Rights in general - but what is that difference? Where did it come from? Were the commerce clause or the prohibition against any "Law impairing the Obligation of Contracts" rewritten? No, they weren't, not officially at any rate.
This 'New' understanding was an alien understanding and it did not come either from the constitution, nor from those ideas up which it was founded.
The key here is of course in the words 'the present day' in the portion of the quote above... something in that present day, was no longer the same as in the founders day - and you can be sure that it wasn't the Truth, that stayed the same - but what did change? The phrase that judge used, that example of 'Temporal Provinciality' so common to their day, and ours, expressed a type of thinking that was wholly foreign to the thinking of the Founding Fathers, and it shouldn't be surprising that it finds it's expression in direct, even visceral, opposition to the Constitution and every idea of Rights which it represents.
Note also, especially those of you on the Left, that it has traditionally been from the Progressive line of thought (remember, this isn't a Democrat, Republican or Independent political issue, but a philosophical issue of Progressivism which infects each party) which directly and intentionally benefits selected large corporations, those which sought a 'partnership' with government 'for the greater good', those ones which had no finicky care for 'individual rights' or the 'property rights' of individuals, or the 'competition of the marketplace (their greatest fear), but only for 'progress' which served the greater good (and which only coincidentally enlarged their profits and power, I'm sure).
This is the very same proregressive legislative view of 'Rights', of positivist law, which the Wilson Administration brought to everything it felt justified in doing 'for the greater good' including segregating the U.S. Army and cleansing the civil service. Yes, long before Jackie Robinson - the U.S. Army was already becoming de-segregated, prior to WWI , that is until the proregressive democrat rule of Wilson, who not only imposed segregation upon the Army, but also fired nearly all blacks from civil service positions.
However consider that even if he completely flimflamed the electorate, there must have been a significant number of people, highly placed and influential, to enable such actions, otherwise he'd have been unceremoniously thrown out. Where did the likes of Walter Lippmann, John Dewey, etc, come from? That answer leads towards the actual answer... I'm getting there. For now, here's a brief refresher on who those progressives darlings actually were.
For these larger reasons, and others, I don't want to try here to set up the SCOTUS as being the bad guy - I think that is a too easy and short sighted error, and I don't agree with those who say that Justice Marshall overstepped his bounds in Marbury vs Madison, in establishing that the SCOTUS has judicial review over legislation. The concept of judicial review was one that was well established among the colonies, and later as states, and in some form in Britain as well, and as Marshall ably describes the matter, such interpretation and correction had to be done and the SCOTUS was the proper and logical place for it to be done at, as it should still be (confined to it's proper bounds).
And despite popular opinion, the SCOTUS is not without checks from the other branches of government - the legislature can rewrite laws, or together with the people, pass amendments which will change what is, and is not, constitutional. Those who say that there is no counter balance of power to that of the courts, or that those measures would take too long to pass, should review Thomas Jefferson's administration, he made it very clear that the Executive has authority to not only appoint judges, and to create judicial circuits, but it also has the power to wipe them out, as Jefferson did,
"In the Judiciary Act of 1802 ... revoked the judiciary act of the previous year and restored the structure of the judiciary as it had stood previously, thereby abolishing the sixteen judgeships assigned to the reorganized circuit courts. Jeffersonian Republicans asserted that Congress’s right to establish inferior courts implicitly allowed it to abolish such courts. The incumbent circuit judges and their Federalist supporters insisted that judges appointed for service during good behavior could not be removed by statute.
...Following an exchange of letters in which a majority of the justices concluded that they were obligated to serve on the circuit courts, Marshall deferred to the act. In March 1803, the Supreme Court in the case of Stuart v. Laird ruled that Congress had authority to transfer a case from a court established by the act of 1801 to one established by the act of 1802, and by implication affirmed the constitutionality of the Judiciary Act of 1802."
, and with the impeachments of Justice Chase which followed, he very ably brought what he saw to be an overreaching court to heel - even though the impeachment trials didn't favor his view.
That those few modern presidents who may have been in a position to take similar actions toward a judiciary overstepping it's bounds, failed to exercise their available Checks to maintain proper Balance, either they didn't have the balls to do so (and such efforts would have major repercussions, perhaps unforeseen and detrimental, and as FDR discovered with his 'court packing' scheme, such efforts may be unsuccessful and may reveal more about who they really are than they might have wished), or the thought just never occurred to them that they could, which is something that applies to the final section here on Comprehension of the Constitution.
But the first real instance of high level damage to the way that the Constitution would be interpreted, I think came from, as I've mentioned a few times before, from the same judge who was later responsible for the Dred Scott decision, Justice Roger Taney, and his decision was the first case of the southern, frenchified conception of Rights ('originating' in Rousseau, and passing into England and America through the likes of Godwin, Bentham & J.S. Mill), that of their being products of legislation, judgment and 'Need' overriding that of Property Rights. Taney succinctly summed up the 'greater good' viewpoint in his decision here,
“"While the rights of private property are sacredly guarded, we must not forget that the community also have rights, and that the happiness and wellbeing of every citizen depends on their faithful preservation."”
, IOW 'Rights are only Rights until WE say they are Wrongs', a position that is completely at odds with their original and true source in Natural Law, Individual Rights and of Property Rights which are rooted in the nature of Man as Man. When he heard the decision by Taney, Webster lamented that it would be the
"…death of Property Rights"... and his fear has I think, in the long run, been borne out. if the SCOTUS's Dred Scott decision hadn't been overturned by the Civil War (and this is an extreme example of what I meant when I said that the common understanding is far more important than court rulings – Dred Scott STILL has not technically been overturned in the SCOTUS, but by the Civil War, and in the indignant opinion of the People, it has been made clear that no civilized person or public official (not always the same thing) would be tolerated citing it as precedent.
While the 13th,14th and 15th amendments essentially annulled it (and said anyone born here, no matter their color, had citizenship and was due all rights of citizens, but sadly it didn't restate the traditional American understanding of Rights).
There was a drive begun in dissenting opinions, towards reestablishing Property Rights and Rights as a Whole, especially in the Slaughter-Houses and in Plessy v Fergusson, but with the fading of our earlier understanding, they culminated in Lochner - a correct ruling without proper basis, without the legs of Natural Law to stand on, and actually set the scene for the near destruction of Property Rights by the man who would confess that,
"All my life I have sneered at the natural rights of man", and that from a man, Justice Oliver Wendal Holmes, who is today an idol to leftist and conservative alike.
The closest the SCOTUS got to overturning Dred Scott explicitly, and reasserting for a time the importance of Property Rights (and so Individual Rights), were the later opinions and rulings led by Justice Harlan in Plessy v Fergusson (dissenting against 'separate but equal), he wrote,
"In respect of civil rights common to all citizens, the Constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and, under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the [p555] race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, National and State, but with the personal liberty enjoyed by everyone within the United States.For any who tout the 1964 Civil Rights legislation as being 'good', ask yourselves what it contributes beyond this? Ask yourself why it was needed?
The Thirteenth Amendment does not permit the withholding or the deprivation of any right necessarily inhering in freedom. It not only struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country. This court has so adjudged. But that amendment having been found inadequate to the protection of the rights of those who had been in slavery, it was followed by the Fourteenth Amendment, which added greatly to the dignity and glory of American citizenship and to the security of personal liberty by declaring that
all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,
no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State 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.
These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship. Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it as declared by the Fifteenth Amendment that
the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color or previous condition of servitude.
These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems."
There are of course legitimate concerns that the state may have, and have recourse to set aside technicalities of property rights, and such a situation arose under the Slaughter-Houses cases, but here again, only the dissenting, losing, voice on the court gave voice to it. This was a situation where real damage to property and harm to peoples health gave legitimate cause to the city of New Orleans, and the state of Louisiana, to exercise it's police power, where clusters of Slaughter houses located upriver of the city, were dumping massive quantities of animal parts and refuse into the river, causing masses of offal to float down to and foul the waters and lands and sewers of the city, which caused not only nuissances but real and actual harm to it's citizens through property damage and disease.
, and in response to this, came the issue of the Slaughter-House cases - a great example of a real wrong misaddressed and made worse. The case is summed up as,
"Facts: A Louisiana law of 1869 created a state corporation for the slaughtering of livestock. The corporation was given exclusive power to slaughter livestock, and all other private slaughterhouses were required to close. Independent butchers could use the corporations facilities for a charge, but could not conduct independent operations.
Procedural Posture: The butchers not included in the monopoly claimed that the law deprived them of their right to "exercise their trade" and challenged it under the 13th and 14th amendments. The highest state court sustained the law.
Issue: Whether the 13th and 14th amendments guarantee federal protection of individual rights of all citizens of the United States against discrimination by their own state governments.
Holding: No. "
Which IMHO was the wrong decision, the proper judgment I think is well voiced by Justice Fields in his dissent to the Slaughter-House cases,
"The first clause of the fourteenth amendment changes this whole subject, and removes it from the region of discussion and doubt. It recognizes in express terms, if it does not create, citizens of the United States, and it makes their citizenship dependent upon the place of their birth, or the fact of their adoption, and not upon the constitution or laws of any State or the condition of their ancestry. A citizen of a State is now only a citizen of the United States residing in that State. The fundamental rights, privileges, and immunities which belong to him as a free man and a free citizen now belong to him as a citizen of the United States, and are not dependent upon his citizenship of any State. The exercise of these rights and privileges, and the degree of enjoyment received from such exercise, are always more or less affected by the condition and the local institutions of the State, or city, or town where he resides. They are thus affected in a State by the wisdom of its laws, the ability of its officers, the efficiency of its magistrates, the education and morals of its people, and by many other considerations. This is a result which follows from the constitution of society, and can never be avoided, but in no other way can they be affected by the action of the State, or by the residence of the citizen therein. They do not derive [p96] their existence from its legislation, and cannot be destroyed by its power., these were the opinions of those Justices who still had some grasp of the idea that Rights were found in the nature of Man, not in the words and gifts of legislators or judges, and that they could not be separated from Property Rights, or from that of the sanctity of contract, which they also argued for and asserted. Had these opinions prevailed, much of the future history of the United States, particularly as regards racial civil rights issues, and welfare nanny-statism... would have been very different. The danger of the opposite opinions, such as of what the Taney court held, threatens the death of all Rights, and in the end would make the Constitution irrelevant for much more than anything other than administrative battles over turf. The Civil War, and the 13th, 14th & 15th amendments, slowed that process considerably... but something is still driving it forward. Any guesses? I'll show you mine in a minute (okay... several minutes).
The amendment does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.
...The terms "privileges" and "immunities" are not new in the amendment; they were in the Constitution before the amendment was adopted. They are found in the second section of the fourth article, which declares that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," and they have been the subject of frequent consideration in judicial decisions. In Corfield v. Coryell, [n6] Mr. Justice Washington said he had
no hesitation in confining these expressions to those privileges and immunities which were, in their nature, fundamental, which belong of right to citizens of all free governments, and which have at all times been enjoyed by the citizens of the several States which compose the Union, from the time of their becoming free, independent, and sovereign;
and, in considering what those fundamental privileges were, he said that perhaps it would be more tedious than difficult to enumerate them, but that they might be
all comprehended under the following general heads: protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole.
This appears to me to be a sound construction of the clause in question. The privileges and immunities designated are those which of right belong to the citizens of all free governments
The dissenting opinions by Harlan and Fields were rooted in the same principles which were behind Madison's understanding of the Commerce Clause, and ultimately in the same understanding and principles which saw democracy as a danger best guarded against by more sober minded and informed elections to the deliberative body of the Senate, as opposed to the direct vote of the electorate which the House of Representatives employs. The importance of Senatorial elections being in control of state legislatures - driven by real state concerns, not drummed up and dumbed down PR (and later PC) issues were well understood at the time of the Founding, and these principles were at odds with, and were opposed by, those later interpretations (of the commerce clause, and direct democratic elections). Direct democratic elections are the ultimate in dumbed down PR (PC) campaigns which actually distance the individual voter from the issues, rather than giving his representative a real and significant voice in the election of their Senator, yet one hundred years later, there were two amendments passed which struck deeply at them all,
What was it which allowed these otherwise clearly anti-constitutional measures, to be properly passed, in a constitutional manner?
- The 16th amendment which introduced income taxation ‘only for a few’ and ushered in the Fed and federal control over the economy - and obviated your right and your claim to your property.
- The 17th amendment, which for all intents and purposes abolished Federalism, which not only trivialized your voice in the election of your Senator, but cut any need for the Senator from your state to have any concern for the real issues of their state - the new, and only concern in winning an election, was advertising quality PR and Lots of Money needed to fund a statewide election.
Not Left or Right, or Center, but Foundational
This problem hasn't by any means been confined to the Left, or to the Right, and it didn't begin with the Progressive Era. Remember the two American Traits I mentioned above 'do gooderism' and the urge to 'improvement', they've always been with us... they probably always will, they've just become more and more detached from reality, from any sense that they needed to conform to reality, as time has... um... progressed. Even Thomas Jefferson had more than a touch of it, as do most who become so dazzled by the technological and scientific achievements of modernity - it is very human to do so and miss the forest for these trees their faces have unconsciously become pressed up so closely to - it isn't new - see Oedipus Rex. After all, it is extremely easy, without careful reflection, to become so impressed with our cleverness, that we mistake it for Wisdom... but they are two fundamentally different things, and very unwise to do... and bad things have a habit of following unwise decision - no matter how clever they might appear to be.
It is a commonplace to look at government as a mechanism, or even a management method, how many times have you heard "Govt should be run like a business!"? No, it shouldn't. It isn't a business. It isn't a social service. It isn't a community group. What government is, is the summit of legal, political, ethical, historical and philosophical knowledge in control of pure Power, and it must be recognized as being as Washington termed it "A dangerous servant",
"Government is not reason; it is not eloquent; it is force. Like fire, it is a dangerous servant and a fearful master."It must be carefully and deliberately employed in a well defined manner in order to preserve our Rights and Liberties, or it will consume them. As I said, even Jefferson exhibited quite a bit of this 'mechanistic' view of government, though to his credit, the progression of the French Revolution from 'Liberty' to mass executions, went a long way to curing him of it.
Recall that prior to Woodrow Wilson’s presidency, the Progressives were distributed throughout both the Democrat and Republican parties - Teddy Roosevelt, a Republican, was the first Progressive President, it took the Wilson administration to discredit proregressivism (for a time), at which point they did what they've always done - changed their name. The bulk stayed in, or moved into, the Democrat party and began to call themselves Liberal (a term they'd been deriding for some time, but which still had the respect of the American people, which was what they wanted), and the real Liberals fled the Democrat party, some going to the Republicans, other's to political limbo, and those progressives in the Republican party either followed them into the Democrat party, or stayed where they were and called themselves real Republicans, not Conservatives or Traditionalists or Classical Liberals.
As proregressivism progressed, the ideas became farther and farther removed from direct ties to reality, and as technology made it easier and easier to remove people from awareness of cause and effect, their concepts became further and further removed from their actual sources, and as false fundamentals grabbed the intellectual spotlight, the actual fundamentals were pushed into the shadows.
An example of this can be seen in rulings which on the surface seemed to be the 'correct' one for liberty, property and business, but ultimately undermined all property rights even further, such as was the case with Lochner vs New York. In this case there was the 'laissez-faire', 'conservative' justices such as Peckham who let slip their grasp on the original principles of Individual Rights and meaningful Property Rights, and could only see to strike down improper State Law on the grounds of New York having overstepped it's 'Police Powers' (in partial contrast to the lower court's Justice O'Brien, who better identified the actual issue involved,
"Liberty, in its broad sense, means the right, not only of freedom from actual restraint of the person, but the right of such use of his faculties in all lawful ways, to live and work where he will, to earn his livelihood in any lawful calling, and to pursue any lawful trade or avocation. All laws, therefore, which impair or trammel those rights or restrict his freedom of action, or his choice of methods in the transaction of his lawful business, are infringements upon his fundamental right of liberty, and are void."But the Majority Opinion in Lochner, didn't affirm it so, in fact the majority opinion offered a 'defense' of Lochner's right to property and contract,
"...Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers. . "Good Lord! That is a defense of Liberty and Property? How in God's name is "property and liberty are held on such reasonable conditions as may be imposed by the governing power " any different from the position of King George III? They'd rewrite the declaration to be "We hold these truths as self-evident, that you can have and do whatever the government says you can." And don't let a similarity of appearance deceive, this is the opposite of Justice Fields' earlier citation of,
"to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the government may justly prescribe for the general good of the whole..."Here liberty is primary and restrained only to prevent the reduction of other's liberty, but in Lochner the people's liberties are theirs only to the extent that government deigns to suffer them. The earlier defenses of Liberty given by Madison, and even the later attempts of Justices Fields and Harlan, had by this time faded beneath that of the progressive right, a view that was not too significantly different from the views of Justice Taney... and with friends like that, who needs enemies?
Now again, I don't deny that the State has police powers, and an example of a proper use of them, of how they should have been used, for example, in the Slaughter-House cases, where real damage and harm was being cause to the city of New Orleans by the Slaughter houses located upriver of them, their sending masses of offal down river to the city caused not only nuisance but actual harm and disease. A proper use of the State's police power would have been to uphold the Property Rights of the Individuals living in New Orleans, a proper use of the States police power would have been to demand that the business's cease damaging the Real Property Rights (in both chattel property, and to the property an individual has in themselves and their health), that they immediately either solve the problem they were creating by somehow cleaning the water of the offal they were sending downriver, or that they relocate their businesses to an area which would cause no such harm.
Unfortunately the State, in their disregard of anyone’s property rights, and probably more than a little desire to cash in on the situation, chose to involve itself in the business of the slaughter houses, it sought to establish new corporations under the States supervision and choice of location, etc. THAT is a misuse of state police power, and is unconstitutional, as it violates property rights, contract, and more. Similarly, in Lochner, the winning decision didn't say something like
'The State of New York failed to demonstrate how the employees were involuntarily affected, failed to show how the employees of the bakeries had no choice in accepting these jobs or hours, failed to show that they couldn't seek employment elsewhere, and so the State, as a result of their failure to demonstrate this, is wrong in intervening in the legal, consensual contracts made between Lochner and his employees'.
That would have been a constitutional view. But instead, the court essentially said that
'the State could intervene if it really, really felt that people couldn't be trusted to take jobs that might be stressful or harmful... but since they didn't demonstrate enough 'reallies', then such interference was unwarranted'
... which was a ridiculous dodge, it was an attempt that actually undermined the right to contract and of police powers together, and it did so in a way that amounted to a sentimental claim of 'this doesn't seem so bad, and it'll be bad for business, so no, New York should but out and let the survival of the fittest prevail', and THAT , IMHO, was unconstitutional, and unconscionable as well.
And by choosing to use that transparent dodge, it opened the door by virtue of its errors and disingenuousness, for Justice Oliver Wendell Holmes (the worst and most disastrous Supreme Court Justice, this side of Justice Roger B. Taney, to ever sit on the court) to capitalize on in his dissent with a historic legal zinger of
"The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.”", (which was a reference to Spencer's 'Social Darwinism' and his famous tagline "Survival of the fittest") and Holmes's losing dissent, won over prevailing opinion, it easily tied the conservatives, by way of Spencer, to an image of heartless 'survival of the fittest' mentalities clinging to the past for the past's sake (and since they'd lost a grasp of what True Individual Rights and Property Rights were, that they were inseparable and rooted in Natural Law - Holmes's was essentially correct about them, on that count at least) and with his dissent, he established the foundation for the coming constitutional wreckage leading from the coming minimum wage cases and on up to FDR's 'New Deal' era and later seizure of the nations gold in the gold clause cases.
The Law always exists in the heart and in the minds of the people, and it exists only in the quality which it is so held - whether or not it is faithful to the Constitution and the principles it is rooted in, depends on what they are taught - or not taught - about it, and about the law - and the sum of that teaching, describes the state of law - or lawlessness - ruling the land, and what 'solutions' the people will be willing to accept.
If you want to see where the constitution has sustained the most damage, look into your own heart, you'll find the answers - and more importantly, the questions - right there. What do I mean by that? The Constitution was once taught in grammar schools (as were the persons and deeds of the Founders). What do you know of, and about, the Constitution? Can you recite even the purpose of the main Articles? The names of the signers of the Declaration? The heroic deeds of the Founding Fathers in a desperate attempt to secure to us the blessings of liberty?
See what I mean?
I say again, this is NOT a fetishizing of the old dead guys in wigs - though not a few conservatives do just that - these men and women were remarkable people not because they signed a document and had it preserved in a painting, but because of the lives they led and the deeds that they performed in the service of principles and ideals they deeply understood and believed in, which led them to pledge their lives, their liberty and their sacred honor through the inscribing of their signatures at the very real risk of death by hanging... by virtue of the remarkable lives they led, they deserve our respect and thanks, and more so, they deserve to be recognized by us as having been remarkable men and women and worthy of our emulation.
But that is most decidedly not a view commonly held, and even less commonly taught, today.
So how did we get from there to here? Step by step.
This finally brings me back around to one of the earlier wounds to the nation, to the constitution, and to the minds of We The People, which has to my mind been more responsible for the damage to the Constitution, and to our understanding and reverence for it - such as there may still be - than anything else. While much of the damage to the world today can be attributed to modern developments in philosophy originating in Europe, this, though under it's influence, was done by ourselves, to ourselves, and by virtue of this act, every abomination that has followed from it's time to ours, has been simpler to accomplish because of this act, than otherwise would likely have been possible - not for several more generations, at any rate.
It was something which also goes mostly unremarked by nearly everyone, but IMHO it was the first of the truly damaging issues - those who've been reading this blog for some time will not be surprised to realize that I'm referring to the much admired and regaled Morrill Act for Land Grant Colleges, by the proregressive Republican Morrill, then in the house, later a long lasting and influential Senator and founder of the Republican party in Vermont. His education bill was vetoed before for the mischievous evil it was, by the much derided (and not without good reason) President Buchannan - nowhere in the constitution were there the powers for the Fed Govt to involve itself in the local operations of the education of the citizenry. Most states and local towns were doing so already, but on the local level, where the real and proper concerns of parents and their community were involved, but at the removed level of the Fed Govt, they had no business being involved in it, and Buchannan vetoed it.
Morrill, together with a progressive education 'reformer', Charles Evans, who wanted to remake education from a liberal (in the true and traditional 'Classical Liberal' sense of the term) enterprise into one centered around Vocational Training (one which earlier luminaries, such as Aristotle and Socrates would have recognized (in place of True Education) as more fitting for slaves, than free men) repackaged it and passed it by Lincoln as a war measure, with the assurance that it'd help educate ignorant rebelliousness out of the South.
This was at a time when most college presidents had their positions because they were master teachers, learned in all the school's 'depts', and had not yet sunk to the point of being replaced by simple administrators.
They didn't like it.
As these learned men knew the purpose of education to be, it was to aid and guide the student into attaining a broad-based, integrated, understanding of history, literature, philosophy, for the purposes of imparting informed knowledge of themselves, making them fit to be free, self-governing Men.
Because of those goals, the materials studied required, ideally, an understanding of Greek & Latin, though translations were tolerated as a lesser option. The materials themselves were the treasure house of the West - Homer, Hesiod, Herodotus, Thucydides, Aeschylus, Sophocles, Euripides, Plato, Aristotle, Euclid, Livy, Tacitus, Cicero, Caesar, Virgil, Plutarch, Marcus Aurelius, The Bible, Augustine, Aquinas, Dante, Shakespeare, Bacon, Galileo, Newton, Hobbes, Locke, Pope, Montesquieu, Coke & Blackstone... not an exhaustive list, or even those always chosen, but one that would have been uncontroversial.
Again the purpose of this type of education was not to impress anybody, or to fawn over old dead white guys, it had a purpose of providing a general and comprehensive knowledge of the history and knowledge of the West, in order to provide a basis for students to learn and revere what was right and good, to recognize and revile what was evil, and to know the importance of the Good, the Beautiful and the True.
Beginning slowly, with men like Machiavelli, Bacon & Hobbes, a materialistic thrust began to alter the thrust of classical education, particularly that of scholasticism (which has been unfairly tarred far beyond its not insignificant failings), and initially brought to education a healthy interest in measurement, in the logical verification of ideas, and especially with Galileo and Newton, an emphasis on ordered, dispassionate investigation of nature and our place in this world.
This tempered new emphasis, and subsequent developments in British history (Magna Carta, The Glorius Revolution), produced the high point of Western Civilization, the most balanced, well rounded, Civilized people, yet who had lost nothing of their decisiveness and backbone, and could show concern for rights of other peoples, seemingly to their own disadvantage (in fact it was to their advantage, but that's a higher and longer range view few then grasped),something the world had never seen before, and certainly nothing even remotely like them had been seen since the high water marks of the Ancient Romans and Greeks before them.
With the intellectual and political freedoms this unleashed, there came advances in science and technology and prosperity which had also never been seen before. There also came a certain giddiness, an unwarranted assumption of wisdom being associated with their scientific advances, which encouraged some number of oversights and errors, but it also unleashed numerous fears and resentments, especially at the invalidation of old and royal ways and traditional ways of thinking were bound up with them, and these new views and skepticisms began to find their way into philosophy through the likes of Descartes & Spinoza, and later more consciously through Rousseau, Kant & Hegel.
An unfair, but useful, bullet pointing of these developments might be summed up as:
With that dizzying progression from 'know thyself' to 'nothing can be known' occurring over just a couple centuries, the utter destruction, carnage and chaos of Marxism, Progressivism, Fascism and mindless totalitarianism which has swept the world was unavoidable.
- Descartes torpedoed metaphysics - thinkers began to concern their thinking with their own thoughts, rather than with reality,
- Rousseau asserted that civilization was an evil and that primitivism and childhood, were innocent and exalted ideals,
- Hume hoodwinked people into thinking that the height of scientific understanding was to understand that you couldn't be certain of anything you understood,
- Kant accomplished his goal of ending the Enlightenment by convolutedly convincing otherwise intelligent people, that Reality was not only hard to refer to, but actually unknowable,
- Hegel, through even more impenetrable convolutions than Kant, convinced intellectuals that individuals were nothing, the culture, the collective, the State was everything, and that through his dialectic, errors actually helped construct 'truths'
- Peirce, Dewey & James's Pragmatism, completed the coupe de grace, through pointing out that while Kant and Hegel may be right, it didn't matter if they weren't understandable, and since reality couldn't be known or understood anyway, then those tools which had lifted men to the heights of the Founding Fathers generation, reality based reasoning, Truth, Principles, should be discarded in favor of just taking whatever action 'seemed sensible', seeing how it worked, and then trying something else, even the opposite, until you got an acceptable result.
The 1800's was a century of transition as the old understanding faded and the new ignorance surged ahead, and the world wide wars of the 20th century were the result.
Some Saw It Coming
These changes announced themselves through the popularity of Rousseauian theory of education - let the child lead his own education, after all, he was closer to the ideal of natural primitivism, than the corrupted and civilized adult, and the new 'German Method' of machine-like focus on data, facts, and a fetish for quantifiability - if it couldn't be measured, it wasn't worth studying, it was intellectually sniffed at and dismissed as 'worthless niceties', fine for fun, but not for respectable discussion. In this new intellectual fashion something like 'Virtue' which couldn't be expressed as a fraction, was out, and now unworthy of respectable study. As Hume put it,
"...If we take in our hand any volume; of divinity or school metaphysics, for instance; let us ask, Does it contain any abstract reasoning concerning quantity or number? No. Does it contain any experimental reasoning concerning matter of fact and existence? No. Commit it then to the flames: for it can contain nothing but sophistry and illusion...."The only thing worthy of study, were listings of de-natured and deconceptualized facts (hello textbooks), and class time would be better spent on materialized version of Science and attaining 'useful' skills in a 'scientific' way which would enable people to better work and produce and serve society.
Virtue? Beauty? Truth?! Bahhh! Religion? 'Don't make me laugh!'
This was the mindset which began to filter back into America, as it's more well to do students pursued the new fashionable forms of education, which couldn't be found in our backward States, in Europe. It's ideas became fashionable with the elites and those who aspired to be, but was brushed off by the vast majority of the populace, recognizing it as ignorance on stilts, and leading to a new and ominous anti-intellectualism in America - a land that had been the most literate on the face of the earth, saw the boneheaded ideas of those who were coming back with new 'more respectable ideas', saw them for the fools they were, and dismissed them.
That was dangerous indeed.
Dangerous because the new ideas were coming, and they needed to be identified, battled and defeated, rather than simply turning their backs upon them, because come those ideas did. And when they found our backs turned to them, they pounced upon America with a vengeance.
You can imagine what such a philosophical movement driven by a philosophy which 'valued' skeptical view of reality and knowledge (which means one that is anti-reality), inherently opposed to the very idea of principles, derisive of the value of civilization, and prejudiced against giving any real credit to ideas of Beauty and Truth, felt and thought about the culture of our Founding Fathers Era. You should be able to imagine how such a mindset felt about a Nation founded upon timeless principles derived from an integrated overview of the fruits of Western Civilization (shorthand for Greco/Roman-Judeo/Christian Culture), with a deep respect for character and a healthy respect for reality, a reverence for Ethics and ethical behavior, culminating in a fixed Constitution which was expected to be a fount for principled legal ideals rooted in Natural Law and its vital political anchor in Property Rights and sanctity of Contract.
Like Oil and Water, they do not mix.
I've gone into some detail elsewhere, and will devote greater detail in a later post, but the highlights are that Harvard was the first of the traditional colleges to buckle to the new philosophies, beginning with offering a 'Law School' elevating skills and techniques to a position of competition with a traditional humanities education. Later, under the new leadership of Charles Elliot, they instituted the new Rousseauian and German ideas of 'elective classes', and even stronger emphasis on utilitarian and vocational training (Pierce was one of the early products, who dismissed the Kantian/Hegelian rubbish - not as Wrong - but as maybe correct but, but too dense to be useful, and Pragmatism was the reactionary product).
The fruits of this, was a new sort of 'education' that would care less (they couldn't yet discard) about 'soft' studies, such as that which Education had always been concerned with, Religion, History, Ethics, etc, and focused upon making people useful workers, cogs in the gears of the societal machine.
But still, the people didn't buy into these new views of Education, they gave it little credit, and with spectacular examples of failures such as "The Temple School", they also gave it much derision, and sought out instead materials such as "The McGuffey Readers", and "Constitution Catechism". And in true proregressive spirit, when faced with disagreement and opposition, they sought to force their new educational goals and methods on the people.
That next big push came under the agitation of Johnathan B. Turner,
"...Industrial Education.—In 1851 was instituted a movement which, although obstructed for some time by partisan opposition, has been followed by more far-reaching results, for the country at large, than any single measure in the history of education since the act of 1785 setting apart one section in each township for the support of public schools. This was the scheme formulated by the late Prof. Jonathan B. Turner, of Jacksonville, for a system of practical scientific education for the agricultural, mechanical and other industrial classes, at a Farmers' Convention held under the auspices of the Buel Institute (an Agricultural Society), at Granville, Putnam County, Nov. 18, 1851. While proposing a plan for a "State University" for Illinois, it also advocated, from the outset, a "University for the industrial classes in each of the States," by way of supplementing the work which a "National Institute of Science," such as the Smithsonian Institute at Washington, was expected to accomplish. The proposition attracted the attention of persons interested in the cause of industrial education in other States, especially in New York and some of the New England States, and received their hearty endorsement and cooperation. ..."But there were still those capable of seeing what was coming, and what this sophistry would mean to a country so heavily dependent upon an educated and moral people for the continuance of good government and society. They saw the destruction of Education that would have to follow form a government not just setting aside land for funding education, but for determining what kind of education should be given. Most college presidents of the day objected, they knew that it would eventually mean the death of proper education, a Liberal Education, that which is Vital for a moral people, without whom, as John Adams said,
"..."We have no government armed with power capable of contending with human passions unbridled by morality and religion. Avarice, ambition, revenge, or gallantry, would break the strongest cords of our Constitution as a whale goes through a net. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other."...", but that vital, tested, tried and true and phenomenally successful form of Education, was to be progressively thrown over in favor of vocational training, and the consolidation of curriculum's under the direction of the national government.,
"...Turner's typical speech described the failure of existing private universities trapped in the old ideals that college ought to be concerned with the study of Latin and Greek languages and ancient authors. Colleges did not address the practical concerns of life, especially agriculture. Turner stressed the democratic basis of American society, explaining that a people's institution was needed to sustain it. Turner then outlined what the university could do for farmers and the industrial classes. Four months later, when the progressive and widely read Prairie Farmer weekly in Chicago published Turner's speech, he had added the critical component that such colleges should be funded by federal grants of land. They would be called land-grant colleges ..."The people also saw a harebrained scheme worthy of Aristophanes’ pen, they saw a boondoggle in the works that would consume their money and produce nothing of value in return. They didn't like it. They fiercely tried to stop it.,
"...But there was strong opposition to the public university system. Turner's barn and outbuildings were burned. A number of newspapers railed against the foolishness of what seemed like a Utopian idea and a perfect waste of money. Many farmers and most Illinois farmers believed no results would flow from such an institution that it would actually provide a way for its students to avoid hard, practical work with their hands. Farmers had to be convinced to support the movement. ...One of the principal supporters of the idea was the editor of the Prairie Farmer, John S. Wright, who used the pages of the popular farm journal to agitate for an industrial university. Wright had migrated from Massachusetts to Chicago, where he had become involved in a number of social improvement projects. ..."Although both the college presidents and the people tried to oppose this movement, with the rising popularity of the faux-scienceish proregressive movement combined with the persistent Republican Progressive Morrill and the heat of War, the Morrill Land Grant Colleges Act passed.
IMHO, all that has happened since, had as its ultimate enabling cause (as Aristotle might term it, the efficient cause) has been a result of that single Act. True, the new 'modern' philosophy was sweeping Europe and it was being eaten up by young American elites who travelled to the continent for a more prestigious education, but America is a nation founded from the ground up. Such ideas as they could spread, would likely have remained isolated among just those few elites who went and exposed themselves to them. Sure, some colleges would still have fallen to them, Harvard, Yale, Princeton... but again, the sentiment of the people was already being felt in their distrust of these patently foolish and 'idealistic' intellectuals.
The mass of Americans were educated at home, or by men and women who had local and humble educations themselves, educations which were rooted in the books handed down from parents and traditionally admired, education which eagerly studied the lives of the heroic Founding Fathers, the Declaration of Independence, the Constitution, the "Columbian Orator", Plutarch, the Bible and Shakespeare (take a look at studies of popular books and those which formed the core of 'one room schoolhouse' education, and those are what you'll find).
It is unlikely that on its own, the ideas of proregressivism would have been able to filter down below the fad level of philosophic and educational fashion, and without the Morrill Land Grant Act, it could not have spread across the land as it did. The Morrill Act insured that people who would never have heard the ideas of Kant, Hegel & Marx, not only would hear them, but would be presented with and taught them, and not even in a situation of a fair and interested examination by students of a scholarly interest, but from the perspectives of students who were really there to learn about a trade, and as such it would be received as extraneous material they had to endure (and so accepted uncritically), as they acquired what they really wanted, information about new agricultural techniques, and progressively wider technical training.
It might be helpful here to do a bit of compare and contrast between what Education meant to those who created the Founding Father's era, and those who produced Obamao's.
Take a look at what was given in answer as to why you should get a Liberal Education, when those who it was given to, did things like grow up and change the world by writing the Declaration of Independence, the U.S. Constitution, Burke’s letters on French Revolution, etc,
Compare that to this, from the Leipzig connection, regarding the Grand Father (John Dewey being the Father who spun it to be acceptable to modern sensibilities) of modern educational method:
part iii: An Essay on Liberal Education - George Turnbull, Observations upon Liberal Education, in All its Branches:
To the experimental psychologist, however, education became the process of exposing the student to “meaningful” experiences so as to ensure desired reactions:Or as Hume would have it:
"Morals and criticism are not so properly objects of the understanding as of taste and sentiment. Beauty, whether moral or natural, is felt, more properly than perceived. Or if we reason concerning it, and endeavour to fix its standard, we regard a new fact, to wit, the general tastes of mankind, or some such fact, which may be the object of reasoning and enquiry.
What happened next in short order after the passage of the Morrill Act, was an expansion of it, and then Federal 'concern' that 'some teachers' (those concerned with the ideas of traditional Education - History, the humanities (Homer, Virgil, Cicero), Philosophy, etc - were not 'up to speed' on the latest scientific educational techniques ("No teacher needs to know the material, in fact it's a hindrance, they only need to learn techniques of presentation and tonality in order to 'tilt' kids into accepting the material" - see Thorndike, Fichte, Wundt, James Cattell), and so they nationally, and locally, began demanding 'Teacher Education Colleges' - Thomas Sowell has a few thousand choice words for those abominations.
Woodrow Wilson was a child in the south during the civil war, and whatever his stated positions favoring the ending of slavery, he did much to promote at least the spirit the ideals of the losing side – I’ve often repeated the quote he gave to the high school teachers, about wanting two classes, one educated to be rulers and another trained so as to be fit only to be ruled, but he also is the one responsible for RE-segregating the Army, cleansing the civil service, and for pushing the status of blacks back almost to pre civil war status.
This was a man, Woodrow Wilson, was President of Princeton University - ask yourself, did he ignore the ideals of his university... or did they resonate with him? Did he oppose the ideals he oversaw the teaching of, or agree with them and carry them forward into his position as President of the United States? This is a man who wrote against the ideas of the Declaration of Independence, and ridiculed the Constitution of the United States of America (which he would soon swear to defend and protect), did he hold those ideals in opposition to the ideas taught to his students, or did those sentiments and anti-constitutional ideas, disparaging of individual rights and property rights fully agree with and resonate with his own views?
I think the later is clearly the case. And I don't think the case has changed in the last century. In fact it has accellerated.
The Pro(re)gressives are, and always have been, fundamentally opposed to the Constitution of the United States of America... which every one of them who has been sworn in to office, also swore to uphold and defend. That alone should tell you all you need to know about them.
What the educationista's figured out, is that if no one knows the constitution, no one is going to be angered when it is violated, No anger, no ties, no binds... constitution no workee. That means that those with the power will get to use it according to their won rules, if any.. as if.
See how that works?
I hope you get a glimpse of the evolution of a notion, first felt in property being subject to the 'greater good', then to the notion that the Individual Rights of some people were of less value for some, than for others; a muddle which undercut, undermined and corrupted the original American ideals of Rights, Property and Liberty being interdependent and reliant upon a written Constitution. As those ideas rose and spread through our schools, our understanding of Rights, Property and Liberty have been shoved aside, and nearly lost.
Your understanding of an issue cannot exceed the clarity of the ideas with which you seek to understand the issue with. If you don't understand the full import of the meaning of Property Rights, You. Will. Not. Understand. America.
Madison expressed his understanding of this in his response that the $15,000 congressional largesse was unsupported by the constitution and so meaningless in congress - it was the constitutionally correct response then, as it is now. Freedom and Justice cannot withstand Governmental kindness any better than it can tyranny - and both, eventually, will end in the same way.
But even more so, Freedom and Justice cannot withstand hearts and minds who are not familiar with their meanings and requirements. That understanding once formed the heart and soul of our 'system' of a liberal education.
The start of Liberal learning began with Plato, particularly The Republic and Socrates's Cave, No matter whether or not you agree with Plato, and nearly ever answer he gives, I disagree with, but the questions and consideration of them are phenomenal, that was the beginning of the idea that a man must first learn to govern himself, before he can contribute to governing the Republic.
That was the start of Liberal Education. That was the very Point of getting an Education. An education which not only doesn't teach you about your system of governing, but doesn't even teach you to govern yourself...
... THAT is the start of, and source of THE most damage that has been done to our Constitution. Nothing a politician can do can surpass that damage, and nothing a politician can do to fix our Constitution will have any real and lasting benefits, without the real damage being fixed first.
From the article from 1965 which is the source of the Cicero 'quote' I opened with,
"The whole trouble is that, in our civic stupor, we have forgotten that major policies, whether the gift of our substance to the communists or the regimentation of industry, agriculture, business, and the professions, require either the approval or acquiescence of the citizens of this country. What has been done, both that which has contributed to our stability and that which has endangered our future, has been with our consent. But I should tell you that the time is growing short. We must make a choice between the form of government conceived by those who captured our freedoms from Great Britain in the Revolution and this new form of government, a centralization, advocated and practiced by the left-dealers. Whether this nation is to be governed by the rule of law, under the Constitution, or the rule of man, unfettered by any restraint, constitutes the most vital problem of our time.
It is no longer of first importance whether we collectivize the professions or bankrupt the nation in abolishing poverty or in supporting our enemies abroad - the vital question, the question, in the face of which all others fade to insignificance, is whether we save the Constitution of the United States and the Republican form of government established by it."
And I would just add, that in order to save the Constitution, we must first, again, understand the Constitution.
The alarm was raised long ago, we may not have that much time left to answer it now, but imagine the alternative. We often hear the quotes of "Liberty once lost, can never be regained", but that isn't true. The English did it with their Glorious Revolution, and we can as well.
But we'd better know what we're talking about.