The Flight From Reality: 24. The Flight from the Constitution – Part II

Dr. Carson is Professor of American History at Grove City College, Pennsylvania. Among his earlier writings in THE FREEMAN were his series on The Fateful Turn and The Ameri­can Tradition, both of which are now avail­able as books.

It is hardly conceivable that a people would grant the power to a government of their own making to make over their lives. Only confu­sion could produce the notion that it would be desirable or necessary to grant such powers to govern­ment. If a people wish to alter the character of their lives and their ways of doing things, there is no need for government to ef­fect the changes; the people can make them on their own. Of course, a majority might grant powers to its government to make a minority conform to its will. But any thoughtful majority would wish to circumscribe these powers, for majorities change in their constituency, and a man who is today the member of a majority may tomorrow find himself in a minority.

At any rate, the Constitution of these United States did not authorize the government it pro­vided for to engage in social re­construction. Moreover, many pro­tections were written for minori­ties against their subjection to some temporary majority. Yet, for a good many years now, the gov­ernment of these United States has been engaged in various proj­ects of social reconstruction. Each of these is a flight from the Con­stitution. But before detailing these flights and explaining how they have been made, let us ex­amine a single instance.

On May 31, 1955, there went out a decree from the Supreme Court at Washington in the Dis­trict of Columbia based upon a prior declaration by that body of “the fundamental principle that racial discrimination in public ed­ucation is unconstitutional…—All provisions of federal, state or local law requiring or permitting such discrimination must yield to this principle….” This decree ordered subordinate courts to comply in these words:

The Courts will require — a prompt and reasonable start toward full compliance — and enter such or­ders and decrees — as are necessary and proper to admit to public schools on a socially non-discriminating basis with all deliberate speed the parties to these cases….

This decree had the purpose of implementing the ruling of the Supreme Court in Brown vs. Board of Education of Topeka, et al, which had declared segregated schools unconstitutional in 1954.

A great concert of spokesmen in the media of communication proclaimed that the decision and the subsequent decree was the Law of the Land. Many vocal ele­ments in the United States sub­scribed to the notion, or presump­tion, that those who did not rush to comply with the Court’s procla­mation were defying the law. The import of what they were saying was this: Those who continued to maintain segregated schools sup­ported by taxes were outlaws.

Such was not the case (and is not the case). Nothing is more firmly established in the Ameri­can system of jurisprudence than that courts apply the law to par­ticular cases. If this decision was law for anyone, it was law only for the defendants in the case (i. e., the Board of Education of Topeka, and so forth). It would become law for others only when rulings had been made upon cases brought before courts.

Critics of the decision have charged that the Court was legis­lating. Defenders of the decision have, by implication, claimed that the Court has legislated. When they say that the decision is the Law of the Land, they must be saying that the court legislated, for they do not charge that it was the Law of the Land before 1954. The words of the decision suggest that the Court was trying to legis­late, or, at the least, give this character to its pronouncements, for it did speak to the general sit­uation, though its order did and could apply only to those defend­ants before it.

Reconstruction, the Aim

The Brown case is of particular interest because it is a dramatic illustration of two intertwined trends involved in the flight from the Constitution. In the first place, it was an attempt to make over or reconstruct society. One writer focuses upon this character of the decision as well as emphasizing the departure from earlier prac­tice in these words:

The Segregation decisions had a social consequence of a vastly differ­ent order. They called for a rewrit­ing of state and federal legislation relating to public education. When to the Segregation decisions are added the later judicial acts extend­ing the new constitutional regime to other places of public assembly, one must acknowledge that judicial or­ders have required a basic revision of social structure and a root change in human relationships. The Su­preme Court did not order Alabama and Mississippi and South Carolina to forget about an innovation in public policy and continue life as they had lived it before the promul­gation of that innovation; the Court ordered people in those and other states to fashion legislation of a kind that they had never had on their statute books and to institute some social relationships that had never prevailed in those places.¹

Second, the Court used estab­lished judicial procedures to carry out unjudicial action. This gave the act its semblance of legality and claim to be obeyed. But it did not alter the fundamental innova­tion involved nor departure from judicial functions.

The Method of Judicial Review

The two judicial instruments used were judicial review and the court order. The so-called power of judicial review is based upon the view that in applying the law the courts must decide which law applies to a particular case. If there are two laws in conflict, the court must choose which one is applicable, and in so doing it makes of the other a nullity. Two sorts of conflict have arisen: one, a con­flict between an act of the legis­lature and a provision of the Con­stitution; the other, a conflict be­tween Federal legislation and that of the states.

Since Marburg vs. Madison, the rule has held that an act of legis­lature in conflict with the Con­stitution will not be applied by the courts. Such an act is usually said to be unconstitutional. It is also held that a state act in conflict with a Federal act, when the Con­gress was acting within its con­stitutional powers, will not be ap­plied. Claims have arisen over the years that the courts were actually making law when they interpreted the Constitution and the laws. But in the above examples, at least, the courts would not be making laws, they would only be deciding between laws as to which to apply.

The Brown decision was pecu­liar in many ways. The usual route to the testing of a law is to violate it, be found guilty by the appropriate court, and appeal the decision on the grounds of the unconstitutionality of the law. The Brown decision did not arise in this way, though it could have. Two ways to test the segregation laws come to mind. One would be for the parents of a child to re- fuse to send him to a segregated school. If the state in which this occurred had compulsory attendance laws, the parents might then be prosecuted for failing to re- quire the child to attend. The particular law being challenged would be the compulsory attendance law, but perhaps the courts might decide upon the constitutionality of segregation in connection with it.

The other way to test the constitutionality of segregation would be for a school official to enroll, say, a Negro child in a white school, or vice versa. If he were then brought to court for his act, a perfect test case would be avail- able for the constitutionality of the laws requiring segregation.

Change by Order of the Court

In both imaginary cases, the court could have ruled the acts unconstitutional. That is, the court could have held that an act compelling students to attend segregated schools was in violation of the Constitution (or even, that compulsory school attendance was). And, it could have held, in the second case, that the require­ment that schools be segregated was unconstitutional. In either case, the decision of the court would have been negative, and the initiative for taking action would have remained with the states and communities. In these cases, the Court would not have been making law, though it would have reversed its former position as to what was law.

But the approach to the courts was not made in the usual way. Plaintiffs in these cases asked for court orders requiring the ad­mission of the pupils in question to all-white schools. That is, they asked for orders compelling inte­gration. The court order is a well established instrument of the courts. There are a considerable array of instances in which they may be issued. Roughly, though, they are of two kinds: those is­sued prior to adjudication, and those issued to effect a judgment arrived at in regular court pro­ceedings. The first usually is of the nature of an injunction, pro­hibiting or stopping some action which, if it is as alleged, will re­sult in irreparable damage if al­lowed to continue until a case can be decided in court. Decisions themselves may result in court orders; if so, they would be of the second kind.

Remaking the Law

It is remarkable that these cases should ever have come before the Supreme Court. There was no al­leged conflict between Federal and state statutes. There was no stand­ing law (that is, legislative enact­ment) compelling integration upon which a court order might issue. Moreover, courts (including the Supreme Court) had held on many occasions that segregation, per se, did not violate the “equal protec­tion of the law” clause of the Fourteenth Amendment. The rul­ing principle in such a case might be expected to be stare decisis (to let the decision stand). In short, there was no law, either statute or constitutional, upon which a court order might be issued.

Before the Supreme Court could issue the orders that it did and remand the cases to the lower courts for particular orders, it found it necessary to establish at least the semblance of such law by constitutional reinterpretation. That is, it reversed earlier deci­sions. Theoretically, it might have done so by declaring that it would not enforce laws requiring segre­gation in the schools, though it had no case directly challenging these before it. If it had done so, however, its ruling on the cases be­fore it would, of necessity, have been to deny the suits. The Court was asked to rule not that segrega­tion was unconstitutional but that for the plaintiffs to receive equal protection of the laws integra­tion must be required in public schools.

Desegregation Does Not Require Compulsory Integration

Compulsory integration is the key phrase for understanding the import of the Brown decision. The distinction between declaring seg­regation to be unconstitutional in the public schools and the compel­ling of integration may appear to be a distinction without a differ­ence. It is not; it makes all the difference in the world. If the Court had ruled that segregation was unconstitutional, the decision would undoubtedly have been sub­ject to much controversy. It would, nonetheless, have been, in the common parlance, the Law of the Land. That is, the courts would not enforce segregation laws by assessing penalties against vio­lators. In the normal course of events, no such cases would come before the courts. Everyone might know that such laws were of no effect. Ruling in this way, the Su­preme Court has an inherent pow­er to say what is the law in these United States. It is a negative power; it nullifies but does not create.

Compulsory integration is an­other matter altogether. It is not law at all. It lacks the predictabil­ity which is an essential require­ment of law, about which more anon. There are no minimum nor maximum penalties fixed for vio­lators. There is no provision for trial by jury of offenders, which, if the decisions were law, would be in conflict with the Sixth Amendment to the Constitution. There is no description of the circumstances under which inte­gration must occur, no exclusion of those in which it is not re­quired. The effecting of the deci­sions is to be done in such a man­ner as to evade the requirements that due process of law be ob­served.

“Due process of law” is often treated as if it were a mystery, to be divined, if at all, by those deeply immured in the intricacies of the law. For some of the finer points, this may be so. But much of the outline of the requirements of due process of law is spelled out unmistakably in the Fourth through the Eighth Amendments to the Constitution. For example, the Fifth Amendment says, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury….” The Sixth says, “In all criminal prosecutions, the accused shall en­joy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been com­mitted….” The Seventh says, “In Suits at common law, where the value in controversy shall ex­ceed twenty dollars, the right of trial by jury shall be preserved….” Any law which did not allow or provide for these processes would, itself, be in violation of the Con­stitution. The Brown decision, and those subsequent to it, allowed for no such processes; contempt pro­ceedings before a judge only were to be the methods of enforcement.

Nothing Settled

More needs to be said under the heading of predictability. The Brown decision, for all its firm­ness of tone, did not settle the question as to what is the law. It only raised a host of questions. Let us note some of them. Must a school admit a child of the Ne­gro race when he applies without regard to where he resides? Does the ruling apply with equal valid­ity to Indians, for instance? Must a school district integrate its schools in the absence of the desire for such integration from any of its constituency? May a pupil be compelled to attend an integrated school? When is a school integrated? Must a school have some kind of balance among the races in its pupil make-up? Must Negroes be imported or white people exported in order to achieve integration? Any court worth its salt confronted with the Brown decision under the guise of law would, of necessity, rule that it was no law.

The Brown decision, and those subsequent to it, was not judicial legislation; it was judicial compul­sion. There was, and is, no law requiring integrated schools. There have been a large number of court orders compelling inte­gration in particular instances. They are compulsions, however, without the sanction of law—in the absence of standing law. They are assertions of the will of the courts, or of the Supreme Court, hence, arbitrary, violative of con­stitutional rights, and putative usurpations of powers belonging to legislatures or to the people.

Those who believe that the Brown decision was nonetheless proper may defend their position by holding that the integration of the schools could not otherwise have been obtained, that there would have been insufficient states to approve a constitutional amend­ment for it to be adopted, that Congressional action would have been forestalled by a filibuster, that grand juries in some parts of the country would not indict offenders, that trial juries would not convict. All of this is another way of saying that the Constitu­tion does not contemplate the use of the government to make over the lives of Americans, that it provides for a government answer­able to the people, that the taking of life, liberty, and property are powers residing finally in juries selected from among those in the communities where the act is done. In short, Americans did not contract away the power to alter and determine what their lives would be. Such attempts can be made only by flights from the Constitution.

Other Unconstitutional Actions

The above is, of course, only one among many flights from the Constitution in the last eighty years. It is particularly significant because it shows how a nonelec­tive branch of the government claims power for itself to alter society. But all branches of the United States government may and have taken part in action un­authorized by the Constitution. The following are some examples of such actions:

1.    Passage of antitrust acts

2.    Authorizing the Interstate Commerce Commission to set rates

3.    Establishing of the Federal Reserve System

4.    The passage of a graduated income tax

5.    The construction of steam generators by the Tennessee Valley Authority

6.    The subsidizing of agricultural prices

7.    The restricting of crop acre­ages

8.    The subsidizing of interest rates

9.    The establishing of minimum wages and maximum hours

10. The operating of Social Secur­ity

11. The sponsoring of co-opera­tives

12. The giving of Federal aid to education

13. The providing of low rent housing

14. The making of loans to other nations

15. The forbidding of child labor

16. The arbitration of labor dis­putes

17. The controlling of prices

These and many other actions have been done by the govern­ment of the United States. They are nowhere authorized in the Constitution. The legislative pow­ers are enumerated in Article I, and not one of the above is men­tioned nor, for that matter, clear­ly implied in the powers granted. Some will imagine, for example, that a graduated income tax is authorized by the Sixteenth Amendment. It is not. The Amend­ment reads, “The Congress shall have power to lay and collect taxes on incomes from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.”

True, a graduated tax is not forbidden; but, then, neither is it authorized. Moreover, since the prevailing practice in America was for taxes to be uniform, no presumption existed that this au­thorized graduation. On the con­trary, the supposition would be that income tax rates would be uniform.² Any court eager to in­sure the equal protection of the laws to the citizenry might refuse to enforce the graduated feature of the income tax on the grounds that by its workings Americans are not equally protected from the confiscation of their property.

Getting Around the Limitations

My point, however, is that the Constitution does not authorize a graduated income tax. Nor does it authorize a host of other actions taken with the purpose of making over American society. The Con­stitution posed both formal and substantive obstacles to the parti­san use of government for such unlimited ends. Some account has been made of how the formal obstacles have been largely over­come. The formal obstacles were the separation of powers within the Federal government, the dis­persion of powers among the Fed­eral and state governments, the differing composition of the elec­torate for various elective offices, and the division of the country into relatively small electoral dis­tricts. The major devices by which these have been overcome have been the development of political parties, the direct election of Sen­ators, the establishment of “inde­pendent” boards and commissions which tend to combine powers otherwise separate, the taking of initiative for legislation by the President, and the engaging of the Supreme Court in pseudo-legis­lative pronouncements.

The substantive obstacles in the Constitution consist mainly of the enumeration of powers granted and reservation of those not granted to the states or to the people, procedural restrictions, and enumerated prohibitions against certain actions. Many of these have been evaded, recon­strued, or ignored, so as to allow the Federal government to act in ways not authorized.

The Commerce Clause

Probably the one provision of the Constitution that has been stretched to the greatest extent to empower the Federal govern­ment to act upon Americans has been the interstate commerce clause. Article I, Section 8, gives Congress the power “to regulate Commerce… among the several States….” Of this power, along with that of regulating commerce with foreign nations and with the Indians, one writer says: “This grant of authority is in the sim­plest of words, yet these words have unfolded into a body of prop­ositions and explanations that con­stitute at least one half of the constitutional doctrine pronounced by the Supreme Court.”3

The first thing to be noted about this power is that it is a general and exclusive grant of it to the Federal government, and that the power so granted is vague and imprecise. Chief Justice John Marshall set forth in outline (in Gibbons vs. Ogden, 1824) the broad expanse of this power. He said, in part, “Commerce, un­doubtedly, is traffic, but it is some­thing more, — it is intercourse. It describes the commercial inter­course between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.” Of the power granted, he said: “This power, like all others vested in congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no lim­itations other than are prescribed in the constitution.”4

Production and Sale

For about one hundred years, from some time after 1824 through 1936, the courts occupied them­selves with delimiting and pre­scribing the extent of these pow­ers. The Supreme Court distin­guished between interstate and intrastate commerce, between trade and manufacturing, between that which has a direct effect on commerce and that which does not. Typical of such decisions was that of United States vs. E. C. Knight Company (1895). This case tested the constitutionality of the Sher­man Antitrust Act, involved the question of whether or not the power over commerce gave Con­gress the power to control monop­olies in manufacturing. While the court did not hold the Sherman Act unconstitutional, it did hold that it did not extend to monop­olies in manufacturing. Chief Jus­tice Fuller reasoned in the follow­ing way:

Doubtless the power to control the manufacture of a given thing in­volves in a certain sense the control of its disposition, but this is a secondary and not the primary sense; and although the exercise of that power may result in bringing the operation of commerce into play, it does not control it, and affects it only incidentally and indirectly…. The power to regulate commerce is the power to prescribe the rule by which commerce shall be governed, and is a power independent of the power to suppress monopoly….5

One of the last decisions to at­tempt to maintain such distinc­tions and limitations on the Fed­eral power was Schechter Poultry Corp. vs. United States (1935). The tendency of this decision was to in­validate the National Recovery Act (1933). It was also one of the last decisions to affirm that the Constitution imposes limits upon the Federal government regard­less of the conditions which may prevail. Chief Justice Hughes said, in part:

… Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate, as they have proved to be both in war and peace, but these powers of the national gov­ernment are limited by the constitu­tional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment….6

He then concluded for the ma­jority of the Court:

We are of the opinion that the at­tempt through the provisions of the Code to fix the hours and wages of employees of defendants in their in­trastate business was not a valid exercise of federal power.

On both the grounds we have dis­cussed, the attempted delegation of legislative power, and the attempted regulation of intrastate transactions which affect interstate commerce only indirectly, we hold the code pro­visions here in question to be in­valid….7

A Turning Point in 1937

From this point on, though, the obstacles to the use of power over interstate commerce to regulate a multitude of business activities began to be removed. The Federal courts had never exercised much restraint over state regulation of industry and commerce (about which, more later), but now they began to reduce the restraints on congressional power. A turning point can be seen in NLRB vs. Jones & Laughlin Steel Corp. (1937). Chief Justice Hughes came as close as a judge is apt to do to reversing his earlier opinion in this one. He said,

We do not find it necessary to de­termine whether these features of defendant’s business dispose of the asserted analogy to the “stream of commerce” cases. The instances in which that metaphor has been used are but particular, and not exclu­sive…. The congressional author­ity to protect interstate commerce from burdens and obstructions is not limited to transactions which can be deemed to be an essential part of a “flow” of interstate or foreign com­merce.8

Thereafter, all sorts of legislation has been validated under this clause, as, for example, child labor laws, social security, minimum wages, maximum hours, and so forth. By 1953, a student of con­stitutional interpretation, William W. Crosskey, could conclude that the whole panoply of distinctions and restrictions upon the Federal government in the regulation of economic affairs had been in error. Correctly construed, he said, the powers granted are plenary: “The national government shall have power to regulate the gainful busi­ness, commerce, and industry of the American people.”⁹ The Con­gress, the President, and the courts have increasingly operated upon such a premise.

Liberties Infringed

But let us examine some of the implications of this doctrine. Such an examination will lead us to other flights from the Constitu­tion. If Congress may regulate all gainful business, what is to keep it, for example, from regulating newspapers? Might it not enact legislation to the effect that no newspaper may be sold in any state other than the one in which it is published? Might it not pro­hibit the dissemination of reli­gious information?

But, it may be objected, these acts would be in violation of free­dom of the press and of religion. So they would; Congress is pro­hibited from making such legisla­tion by the First Amendment. The power of regulating interstate commerce is limited by the Consti­tution. One writer notes that there are four limitations upon this reg­ulatory power in the original Con­stitution, relating to “importation of slaves and migrations of other persons into a state, imposition of taxes on imports and exports, and discrimination against one state in favor of another in ocean shipping.¹º

Much more to the point, how­ever, are the limitations in amendments. Not only are religion and the press protected by amendment, but life, liberty, and property are as well. The Fifth Amendment prescribes that “no person… shall be deprived of life, liberty, or property, without due process of law….” The courts assumed that this restriction did not apply to state governments, but the Fourteenth Amendment made such an extension explicit: “nor shall any State deprive any person of life, liberty, or property, without due process of law….”

Ownership Undermined

Life, liberty, and property are in a slightly different category from speech, the press, and re­ligion. The Constitution contem­plates occasions where the former may be taken away; whereas the latter are absolutely protected from congressional intervention. But life, liberty, and property are only taken by due process of law. It should be clear that these pro­visions have the purpose of limit­ing government action. It should be clear, also, that the regulation of interstate commerce may affect property. (It may also affect lib­erty, and perhaps life, but let the consideration be restricted here to property.) The Constitution provides for two occasions for the taking of property: by taxation and (by implication) by the right of eminent domain. The taxing power is limited by the require­ment that taxes be for the common defense and general welfare, and that they be uniform throughout the United States. The power of eminent domain may only be ex­ercised when private property is taken for public use and just com­pensation is paid.

Any taking of property other than by taxation or eminent do­main by the Federal government would be unauthorized. Any regu­lation which had the effect of tak­ing property, or some portion of it, would have to follow estab­lished procedures, namely, those for levying and collecting taxes or those for condemning property. Otherwise, it would be unconsti­tutional because it did not observe due process of law.

My point is that the power to regulate commerce among the states has been used so as to take property. Take a simple case, the establishment of minimum wages. Whatever wages an employer paid, under this enactment, above what he otherwise would have paid would be property taken from him by the working of the law. It would be property taken not as taxes nor for which he had re­ceived compensation. Such con­fiscation would be unauthorized and in violation of the due process clauses of the Constitution. This would appear to apply as well to state action as to that of the Federal government.

Regulation Involves the Taking of Property Bit by Bit

A nice distinction occurs at this point. The regulation of interstate commerce does not usually result in taking all of the property in question. It only takes some por­tion of it or some traditional (or natural) right to its use. It limits the right to buy and sell, to trans­port goods, to hire and fire, to contract, and so forth. It is an eminently effective device for tak­ing property bit by bit and piece by piece. The gradual thrust to socialism has no more appropriate Fabian method in its arsenal.

While Congress and Presidents have been employing these meth­ods ever more effectively, the courts have been weaving a fabric of opinions which enable them to evade responsibility for negating such action. The courts never did much, though they did some, to protect property from states under the Fourteenth Amendment. Early and late, they reduced this protec­tion by declaring that states had an inherent power, which they had never yielded up, to exercise the police power to protect the health, safety, and morals of their citizenry. No mention is made of this in the United States Constitution, and no exceptions for it are to be found in the Fourteenth Amendment.

Changing “Due Process”

As far as “due process” is con­cerned, the Supreme Court has, as regards property, reduced this to something that the courts can determine without reference to any objective standard. For ex­ample, Justice Roberts ruled for a majority of the Court in Nebbia vs. New York (1934) that “the guaranty of due process, as has often been held, demands only that the law shall not be unreason­able, arbitrary or capricious, and that the means selected shall have a real and substantial relation to the object sought to be attained…. The reports of our decisions abound with cases in which the citizens, individual or corporate, has vainly invoked the Fourteenth Amendment in resistance to neces­sary and appropriate exertion of the police power….”^¹¹ There is in none of this language any refer­ence to anything objective to which the courts must bow in mak­ing their decisions.

Other lines than these have been followed to override the constitu­tional limitations on the use of governmental power. The general welfare clause has been inter­preted as if it were a grant of power.¹² Courts have ruled, in ef­fect, that there is a presumption in favor of the constitutionality of an act of Congress, thus tacitly placing the burden of proof on anyone who claims that it is not constitutional. Courts have turned limitations upon governments in­to requirements that governments provide some service. Examples of this can be found in such rulings as that states must provide coun­sel for those criminally charged and who are unable to afford it, that “civil rights” demonstrators must be permitted to use the high­ways of a state, and so on. In ef­fect, the courts create “rights” (more precisely, privileges) by their decisions while they take away constitutional rights.

Advanced Decay

Whatever evidence and analysis should be summoned to support the judgment, there should be no doubt that a general flight from the Constitution has taken place. The obstacles in the way of using government to make over Ameri­cans have been, to a large extent, overcome, so far as the Constitu­tion is concerned. The Presidents have taken over much, or most, of the initiative for legislation. The courts have made decrees that have no basis other than their wills. Many of those in Congress think of the Supreme Court as the only limitation on their ac­tions, and the Court, as has been shown, is ill disposed to limit. The formal limitations upon the politi­cal activities of factions have been mainly overcome.

The balance of powers within the government has been upset, as Presidents and courts have gained power. Much of the power of the Federal government now resides in the least representative branches. The courts are not popu­larly elected, and the members can be removed from office only by difficult impeachment proceedings. This was not to be feared so long as courts applied the standing law, but as they have begun to inno­vate, the matter has changed. They are usurping powers that belong to the people. The dispersion of powers among the Federal and state governments has been great­ly altered as more and more power has been centralized in the Fed­eral government. Departures from the basic and fundamental law of the land — the Constitution — sig­nal lawlessness in high places. If the Supreme Court may interpret at will, what is to keep each man from doing so?

There is an answer to the last question. The answer is that he is kept from doing so by superior force. Force is being introduced into every area of life, but not by regular means. It is done increas­ingly pursuant to decrees and proclamations. In short, the power of government is being used to make over Americans, not by con­sent for that would hardly be given, but arbitrarily and capri­ciously. We are on a flight from the reality of our political founda­tions which evinces itself in a flight from the Constitution.

The next article in this series will concern “Political Experimentation: The Four Year Plans.”

 

—FOOTNOTES—

1 Charles S. Hyneman, The Supreme Court on Trial (New York: Atherton Press, 1963), p. 199.

2 See Thomas J. Norton, Undermining the Constitution (New York: Devin­Adair, 1951), pp. 60-63.

3 Hyneman, op. cit., p. 141.

4 Henry S. Commager, ed., Documents of American History I (New York: Ap­pleton-Century-Crofts, 1962, 7th ed.), 239-40.

5 Ibid., I, 618-19.

6 Ibid., II, 280.

7 Ibid., 283. ⁸ Charles Fairman, American Consti­tutional Decisions (New York: Holt, 1952, rev. ed.), p. 220.

9 Quoted in Hyneman, op. cit., p. 149.

10 Ibid., p. 141.

¹1 Commager, op. cit., II, 300.

¹2 See, for example, Justice Cardozo’s opinion in Helvering et. al. vs. Davis (1937).