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Dead Constitution See other Dead Constitution Articles Title: TAX-EXEMPT SUBVERSION: Special House Committee - 1953 TAX-EXEMPT SUBVERSION Congressman B. Carroll Reece American Mercury July 1957, pp. 56-64 Congressman Reece oversaw the hearings in 1953 of a special House Committee. The hearings were published in 1954: Tax-Exempt Foundations: Hearings Before the Special Committee to Investigate Tax- Exempt Foundations and Comparable Organizations, House of Representatives, Eighty-Third Congress, Second Session. This document is exceedingly rare. At the end of this article is information about where you can download a PDF file of the complete set of the hearings. Tax-exempt philanthropic foundations clearly have become one principle source of Communist influence infiltration and subversion in the United States. Inquiry by four committees of Congress since 1952 has demonstrated beyond all question that eleemosynary foundations – however laudably described in their charters – are accountable in history for all their works. As one promising approach, the Senate Internal Security subcommittee (of the Committee on the Judiciary) recommended on February 28, 1957, that Congress withdraw the tax-exempt status from any organization “contributing funds to a Communist or Communist-front organization, or for Communist purposes.” Such a law would apply to all foundations those definitions already established in the Federal Code by the Subversive Activities Control Act. Tax-exempt foundations then would be subject to citation by the SACB whenever their operations were determined to he tainted by Communist inspiration, purpose, or direction. This type of legislation would not touch reputable and law-abiding foundations. But where the hearing disclosed financial support of Kremlin programs, a foundation's tax-exempt status would be terminated automatically. This would fix a due-process death sentence upon subversive foundations. The House Committee on Tax Exempt Foundations reports there are about 7,000 foundations in the United States today. Their combined trust funds aggregate $7.5 billion, with total annual income approximating $675 million. Some 500 of the larger foundations, those holding more than $10 million each, control roughly 56 percent of the total endowments, and collect approximately 32 percent of all foundation income. Some fifty foundations were named in the hearings as supporters of studies or programs contributing to Communist purposes in the United States.“ It is the conclusion of this committee that the subject of foundations urgently requires the continued attention of Congress,” the House committee reported in December 1954.Under today's law, foundations administer their capital and income “with the widest freedom, bordering at times on irresponsibility. “Wide freedom is highly desirable as long as the public dedication is faithfully followed, but present laws do not compel such performance.” The Committee's criticism fell, for the most part, upon foundations operating in the social sciences, as distinguished from those supporting research in the physical sciences, or missionary activities through bona-fide religious organizations. In the social sciences, the power of the large foundation is enormous.“ It can exercise various forms of patronage which carry with them elements of thought control. It can exert immense influence on educational institutions, upon educational processes, and upon educators. . . . It can materially predetermine the development of social and political concepts and courses of action, through the process of granting or with-holding foundation awards upon a selective basis, and by designing projects which propel research in selected directions. It can play a powerful part in the determination of academic opinion, and through this thought leadership, materially influence public opinion.” This power to influence national policy is amplified tremendously when several great foundations act in concert.“ There is such a concentration foundation power in the United States, operating in the social sciences and education . . . It operates in part through certain intermediary organizations supported by the foundations. It has ramifications in almost every phase of research and education, in communications, and even in government.” A professional class of administrators of foundation funds already has emerged. This informal guild, as the committee describes it, “has fallen into many of the vices of a bureaucratic system, involving vast opportunities for selective patronage, preference and privilege.” Through selectivity in granting funds for research projects, this vast interlocking guild of social engineers “has shown a distinct tendency to favor political opinions of the Left.” One influential foundation gave heavy financial support to The Institute of Pacific Relations, which later was shown to be an all-out Moscow front working for the establishment of a communist regime in China, an aim which has since been accomplished. At one point, subversion is defined in the committee report as “the process of undermining our vitally protective concepts and principles.” Several big-name foundations were found to have supported attacks upon our social and governmental systems, and to have financed “the promotion of collectivist ideas.”Socialist attack upon these Congressional reports misrepresent the purposes of the committees, by suggesting that the end sought by Congress might be to bring every foundation grant under direct federal supervision. Instead, the Committees urged merely that all foundation objectives be described honestly to the public – thus to destroy the protective shield of high-sounding public purpose as a possible cover for hateful attack upon the freedom under the law. The first principle of subversive organizations necessarily must be to defy public inquiry.“ As indicated by their arrogance in dealing with this committee, the major foundations and their associated intermediary organizations have entrenched themselves behind a totality of power which presumes to place them beyond criticism,” one House Committee reported.“ Research in the social sciences plays a key part in the evolution of our society. Such research is now almost wholly in the control of the professional employees of the large foundations and their obedient satellites. Even the great sums allotted by the Federal Government for social science research have come into the virtual control of this professional group. The public interest in foundation funds was illustrated dramatically by Thomas H.Briggs, professor emeritus of education at Columbia University. “This right and this responsibility are derived from the fact that the public has chartered the foundations, and also that by remission of taxes it is furnishing a large part of the available revenue. In the case of the Ford Foundation, which has an annual income in excess of $30-million, the public contributes more than $27-million, or $9 to every $1 that comes from the original donor.” (hearings page 96) This is the dollar value of tax-exemption to one foundation. Is it to be argued that economic privileges of this magnitude granted by public law entail no public responsibilities or accountability? Almost without exception the trustees of large foundations are active men of great affairs, often too busy with their private concerns to give minute attention to the foundation's operations. The effective decisions thus are made by the administrative officers. The trustees meet once a month, or once each quarter, to approve staff reports and recommendations. But in the case of The Ford Fund for the Advancement of Education, Professor Briggs told the House Committee he had resigned from the national advisory committee when he became satisfied that: “Not a single member of the staff, from the president down to the lowest employee, has had any experience, certainly none in recent years, that would give understanding of the problems that are met daily by the teachers and administrators of our schools.” This staff had been selected, the witness continued, “by a former influential officer of The Ford Foundation who is notoriously critical – I may even say contemptuous of the education of teachers.” When the Advisory Committee suggested changes in the program submitted by the staff managers they “were glossed over without discussion.” “ As a former member of the so-called Advisory Committee I testify that at no time did the administration of the fund seek from it any advice on principles of operation, nor did it hospitably receive or act in accordance with such advice as was volunteered.” This testimony offers a challenging commentary on the advisory-committee gimmick, which presumably protects the busy trustees in the discharge of their full fiduciary responsibility as custodians of tax-exemption. Because the trustees are recognized as eminent citizens “with many other occupations and avocations,” they had no way of knowing that the Rockefeller Foundations was contributing heavily to international Communism through the Institute of Pacific Relations. Neither could the trustees of the Carnegie Endowment for International Peace, have been aware of the full background of Alger Hiss at the time he was confirmed as president of that endowment. Both cases illustrate the normal chasm between the trustees and office managers of the foundations. Likewise, both cases illustrate the interlocking guild which prevails among tile professional foundation managers. When lush jobs are available on the foundation projects, the guild provides the ideal candidate. Scores of incidents in the extended hearings (1952-56) underline the House Committee’s conclusion that, as a general rule, “Trustees of great foundations are unable to keep their fingers on the pulse of operations, except to a very limited degree.” That finding explains how the Fund for the Republic could spend considerable sums on producing, and distributing an hour-long TV film defending Dr. I. Robert Oppenheimer, following his dismissal from the Atomic Energy Commission on findings that his earlier associations with identified Communists disqualified him for access to restricted information in the AEC. It also explains why the trustees of the same foundation could not know that Mary Knowles, identified by witnesses appearing before investigating committees as an active Communist, had been granted a special citizenship award of $5,000 following her dismissal as librarian at the Plymouth Meeting of Friends, in Plymouth Township, near Philadelphia, Pa. When called before the Senate Internal Security Subcommittee, on May21,1953, Miss Knowles pleaded thee fifth amendment. No set of foundation trustees, meeting once a month, could possibly be fully aware of such devious operations. Yet these are some of the reasons why the City of Los Angeles, through formal action by its Board of Education, rejected a gift of $300,000 from the Ford Foundation for teacher training. Are the American people without any legal recourse whatever to stop these outright assaults upon freedom – indeed upon our very national security – with millions of dollars in the hands of men who are responsible to nobody for their actions? Reflective study of the hearings discloses that, as a rule, foundation trustees incline to delegate their fiduciary responsibility to the president and officers of the endowment; and these top administrators, in turn, delegate to department heads; and the department heads lean heavily upon the subsidiary organizations created for specific operations. Thus, in the case of the Rockefeller Foundation, the trustees are far removed from the operations of the Social Science Research Council, and the American Council of Learned Societies, which are, substantially, subsidiary off-shoots of the Foundation. The point at which the inter-locking guild of professional foundation managers touches government administration is in appointments to new federal agencies, as they come along.“ We have seen many Communists and fellow-travelers recommended by foundation executives for government posts,” the House committee reported. “In the case of the recommendations to the government made by the Institute of Pacific Relations and the American Council of Learned Societies for experts to be used by our occupations forces in Germany and Japan, the lists were heavily salted with Communists and their supporters.” (Report p. 57). Professor Kenneth Colgrove, secretary of the American Political Science Association, also related his experience touching selection of civilian advisers for Japan: “I was shocked when I saw the list . . . I wanted to find out where the list came from, and I was told it had come from the Institute of Pacific Relations.” (Hearings p. 561)Later a second list had been supplied by the American Council of Learned Societies,“ and the list of the American Political Science Association had been ignored.” “And so,” Professor Colgrove concluded, “General MacArthur, who had very little control over the personnel that was sent to Japan at this time for civil affair – practically no control – had to receive a large group of very leftist, and some of them Communist, advisers in the field of political science.” (Report p. 201)Testifying before the Cox Committee on December 22, 1952, Maurice Malkin, a U.S. immigration inspector in New York, told of Moscow’s direct orders to American Communists to penetrate our philanthropic foundations. Malkin had been a member of the Communist Party of the U.S.A. from 1919 until 1937, when he was expelled. Ludwig Martens, the first official Soviet representative in the United States, was the transmission belt for this penetration order, Malkin related.“ This Ludwig Martens came to the Party and ordered us, that instead of depending upon Moscow to finance the American party directly, we should try to work out ways and means of penetrating philanthropic charitable grants, foundations et cetera . . . to try to penetrate these organizations, in order to drain their treasuries, that they should be able to finance the Communist Party propaganda in the United States, beside the subsidies that will be granted by Moscow.” (Cox hearings p. 692)This campaign of penetration was in some measure successful, Malkin continued: “We made a little headway, like trying to penetrate the Garland Fund, at that period known as the American Fund for Public Service . . . In the Garland Fund we succeeded in placing a few Communists and fellow-travelers at the controlling board, or grant board.” Among the men thus placed, Malkin named as known Communist sympathizers William Z. Foster, Benjamin Gitlow, Norman Thomas, Roger Baldwin, Forest Bailey, Adelaide Shulkind. A similar penetration had been successful in the Phelps Stokes Fund, the witness recalled: “Now in these two organizations the Communist Party actually succeeded in getting in and milking the organization dry . . . Up until about 1928 these organizations actually financed the Communist Party publications, known as the Daily Worker, The Young Worker, the Masses, the Labor Herald , and Novy Mir.” “Besides that, these two funds also helped to finance the organization of the Worker’s School in New York in 1924, which was actually the training school for Communist leadership in the United States, which later was supplemented by what they call the Lenin Institute and Lenin School of Moscow.” Critics of the Congressional inquiries into tax-exempt foundations studiously ignore this segment of the record. “The existence of this plot was corroborated by others, and stands amply proved,” the final House Committee report said; in December 1954. (Report p. 197)Another witness before the Cox Committee was Igor Bogolepov, who had served in the Soviet Foreign Office through the years 1923- 41. He renounced Communism in 1943, joined. the American occupation forces in Germany in 1947, and came to the United States early in 1952.Bogolepov told of a secret meeting in Moscow in 1930, in which Stalin had “revised one of the most basic conceptions of Marxism.” “He recommended this way of thinking: that the revolution in the Western world can be made, evidently not with the hands of proletarians, who proved to be rather indifferent to the Communist conception and ideas, but through the brains of western intellectuals who,as we discovered, were very sympathetic with the Communist ideas, and with the whole construction and conception of socialism in the Soviet Union.” After this directive from Stalin, Bogolepov continued, Foreign Officer Oumansky was placed in charge of the intellectual penetration operation. Later Oumansky was assigned as Soviet ambassador to Washington.“ So started this big operation whose results we still see every day,” the witness continued.” While reading reports of the Soviet Embassy in Washington, more than once I met the name of the Carnegie Endowment and of the Rockefeller Foundation . . . I read about these foundations mostly in the reports of the Soviet ambassador in Washington, when he said what kind of people he and his officials met from these foundations in this period of time, what kind of assignments they gave to these people, or through other people, to these foundations, or to these foundations through American universities or publishing houses . . . He gave the names of the people whom he met, and the people his agents met . . . I just registered in my memory the fact that with every year the number of mentions of these foundations became more and more numerous, and the people involved in this machination of the Soviet Embassy in this country became also greater and greater.” (Cox hearings, pp.677-78)In my attempt to summarize the problems presented in subversive activities supported by tax-exempt foundations, I have reviewed carefully some 3,000 pages of hearings and reports from the two House Committees established especially for that inquiry in the 82nd and 83rd Congresses, plus voluminous collateral material gathered in the House Ways and Means Committee hearings in the 84th Congress, and several bulky reports from the Senate Internal Security Subcommittee Relating to the Institute of Pacific Relations, and Interlocking Subversion in the Federal Agencies. But no reader should assume that this brief synopsis presents all facets of the problem. We have not touched, for example, upon the impact of the foundation-supported Kinsey Reports in the field of American sexual behavior, nor upon the influence of certain foundation studies upon the military or foreign policies of the United States. These are large areas remaining for future development. For the present, we seek merely to demonstrate that tax-exempt subversion presents a national problem which demands the attention of the Congress and the people. One other aspect of national policy touching foundations generally awaits attention. Many complaints have been received, that foundations established to expand research and teaching along traditionally “conservative” lines often have been denied tax-exempt status. On the other hand, foundations which avowedly seek to foster theories and doctrines of the political Left often have been accommodated promptly and most graciously with the tax-exempt privilege. If the administration of the law in this field has been influenced by discrimination or favoritism, a Congressional study on that score would quickly indicate the amendments needed to enforce practical fair, and, impartial application of the tax-exempt privilege to all research and educational foundations. It was never the intention of Congress to provide tax-exempt privileges exclusively for institutions sponsoring ideological subversion of the traditional American, principles of life and government. But I desire to emphasize, in the words of our final committee report, that “not even an inferential conclusion should be drawn from this report that foundations are undesirable. Our conclusion is the opposite. It is our intention to present critical material for the very purpose of increasing the usefulness of foundations and making their place in our society firmer and safer. We hope that such material will induce the foundations themselves to ‘ clean house’, if that is necessary.” (Report, p. 3)Finally, I would warn the reader against much violent vituperation currently prevalent in appraisals of the Congressional committee’s findings. Here, J. Edgar Hoover, chief of the FBI, puts my warning in eloquent terms: “It is an established fact that whenever one has dared to the Communist threat he has invited upon himself the adroit and skilled talents of experts in character assassination.” A complete set of the Reece Committee hearings is available here: "HOW TYRANNY CAME TO AMERICA" Published: 2000 Author: Joseph Sobran One of the great goals of education is to initiate the young into the conversation of their ancestors; to enable them to understand the language of that conversation, in all its subtlety, and maybe even, in their maturity, to add to it some wisdom of their own. The modern American educational system no longer teaches us the political language of our ancestors. In fact our schooling helps widen the gulf of time between our ancestors and ourselves, because much of what we are taught in the name of civics, political science, or American history is really modern liberal propaganda. Sometimes this is deliberate. Worse yet, sometimes it isn’t. Our ancestral voices have come to sound alien to us, and therefore our own moral and political language is impoverished. It’s as if the people of England could no longer understand Shakespeare, or Germans couldn’t comprehend Mozart and Beethoven. So to most Americans, even those who feel oppressed by what they call big government, it must sound strange to hear it said, in the past tense, that tyranny “came” to America. After all, we have a constitution, don’t we? We’ve abolished slavery and segregation. We won two world wars and the Cold War. We still congratulate ourselves before every ballgame on being the Land of the Free. And we aren’t ruled by some fanatic with a funny mustache who likes big parades with thousands of soldiers goose-stepping past huge pictures of himself. For all that, we no longer fully have what our ancestors, who framed and ratified our Constitution, thought of as freedom — a careful division of power that prevents power from becoming concentrated and unlimited. The word they usually used for concentrated power was consolidated — a rough synonym for fascist. And the words they used for any excessive powers claimed or exercised by the state were usurped and tyrannical. They would consider the modern “liberal” state tyrannical in principle; they would see in it not the opposite of the fascist, communist, and socialist states, but their sister. If Washington and Jefferson, Madison, and Hamilton could come back, the first thing they’d notice would be that the federal government now routinely assumes thousands of powers never assigned to it — powers never granted, never delegated, never enumerated. These were the words they used, and it’s a good idea for us to learn their language. They would say that we no longer live under the Constitution they wrote. And the Americans of a much later era — the period from Cleveland to Coolidge, for example — would say we no longer live even under the Constitution they inherited and amended. I call the present system “Post–Constitutional America.” As I sometimes put it, the U.S. Constitution poses no serious threat to our form of government. What’s worse is that our constitutional illiteracy cuts us off from our own national heritage. And so our politics degenerates into increasingly bitter and unprincipled quarrels about who is going to bear the burdens of war and welfare. I don’t want to sound like an oracle on this subject. As a typical victim of modern public education and a disinformed citizen of this media-ridden country, I took a long time — an embarrassingly long time — to learn what I’m passing on. It was like studying geometry in old age, and discovering how simple the basic principles of space really are. It was the old story: In order to learn, first I had to unlearn. Most of what I’d been taught and told about the Constitution was misguided or even false. And I’d never been told some of the most elementary things, which would have saved me a tremendous amount of confusion. The Constitution does two things. First, it delegates certain enumerated powers to the federal government. Second, it separates those powers among the three branches. Most people understand the secondary principle of the separation of powers. But they don’t grasp the primary idea of delegated and enumerated powers. Consider this. We have recently had a big national debate over national health care. Advocates and opponents argued long and loud over whether it could work, what was fair, how to pay for it, and so forth. But almost nobody raised the basic issue: Where does the federal government get the power to legislate in this area? The answer is: Nowhere. The Constitution lists 18 specific legislative powers of Congress, and not a one of them covers national health care. As a matter of fact, none of the delegated powers of Congress — and delegated is always the key word — covers Social Security, or Medicaid, or Medicare, or federal aid to education, or most of what are now miscalled “civil rights,” or countless public works projects, or equally countless regulations of business, large and small, or the space program, or farm subsidies, or research grants, or subsidies to the arts and humanities, or ... well, you name it, chances are it’s unconstitutional. Even the most cynical opponents of the Constitution would be dumbfounded to learn that the federal government now tells us where we can smoke. We are less free, more heavily taxed, and worse governed than our ancestors under British rule. Sometimes this government makes me wonder: Was George III really all that bad? Let’s be clear about one thing. Constitutional and unconstitutional aren’t just simple terms of approval and disapproval. A bad law may be perfectly constitutional. A wise and humane law may be unconstitutional. But what is almost certainly bad is a constant disposition to thwart or disregard the Constitution. It’s not just a matter of what is sometimes called the “original intent” of the authors of the Constitution. What really matters is the common, explicit, unchallenged understanding of the Constitution, on all sides, over several generations. There was no mystery about it. The logic of the Constitution was so elegantly simple that a foreign observer could explain it to his countrymen in two sentences. Alexis de Tocqueville wrote that “the attributes of the federal government were carefully defined [in the Constitution], and all that was not included among them was declared to remain to the governments of the individual states. Thus the government of the states remained the rule, and that of the federal government the exception.” The Declaration of Independence, which underlies the Constitution, holds that the rights of the people come from God, and that the powers of the government come from the people. Let me repeat that: According to the Declaration of Independence, the rights of the people come from God, and the powers of the government come from the people. Unless you grasp this basic order of things, you’ll have a hard time understanding the Constitution. The Constitution was the instrument by which the American people granted, or delegated, certain specific powers to the federal government. Any power not delegated was withheld, or “reserved.” As we’ll see later, these principles are expressed particularly in the Ninth and Tenth Amendments, two crucial but neglected provisions of the Constitution. Let me say it yet again: The rights of the people come from God. The powers of government come from the people. The American people delegated the specific powers they wanted the federal government to have through the Constitution. And any additional powers they wanted to grant were supposed to be added by amendment. It’s largely because we’ve forgotten these simple principles that the country is in so much trouble. The powers of the federal government have multiplied madly, with only the vaguest justifications and on the most slippery pretexts. Its chief business now is not defending our rights but taking and redistributing our wealth. It has even created its own economy, the tax economy, which is parasitical on the basic and productive voluntary economy. Even much of what passes for “national defense” is a kind of hidden entitlement program, as was illustrated when President George Bush warned some states during the 1992 campaign that Bill Clinton would destroy jobs by closing down military bases. Well, if those bases aren’t necessary for our defense, they should be closed down. Now of course nobody in American politics, not even the most fanatical liberal, will admit openly that he doesn’t care what the Constitution says and isn’t going to let it interfere with his agenda. Everyone professes to respect it — even the Supreme Court. That’s the problem. The U.S. Constitution serves the same function as the British royal family: it offers a comforting symbol of tradition and continuity, thereby masking a radical change in the actual system of power. So the people who mean to do without the Constitution have come up with a slogan to keep up appearances: they say the Constitution is a “living document,” which sounds like a compliment. They say it has “evolved” in response to “changing circumstances,” etc. They sneer at the idea that such a mystic document could still have the same meanings it had two centuries ago, or even, I guess, sixty years ago, just before the evolutionary process started accelerating with fantastic velocity. These people, who tend with suspicious consistency to be liberals, have discovered that the Constitution, whatever it may have meant in the past, now means — again, with suspicious consistency — whatever suits their present convenience. Do liberals want big federal entitlement programs? Lo, the Interstate Commerce Clause turns out to mean that the big federal programs are constitutional! Do liberals oppose capital punishment? Lo, the ban on “cruel and unusual punishment” turns out to mean that capital punishment is unconstitutional! Do liberals want abortion on demand? Lo, the Ninth and Fourteenth Amendments, plus their emanations and penumbras, turn out to mean that abortion is nothing less than a woman’s constitutional right! Can all this be blind evolution? If liberals were more religious, they might suspect the hand of Providence behind it! This marvelous “living document” never seems to impede the liberal agenda in any way. On the contrary: it always seems to demand, by a wonderful coincidence, just what liberals are prescribing on other grounds. Take abortion. Set aside your own views and feelings about it. Is it really possible that, as the Supreme Court in effect said, all the abortion laws of all 50 states — no matter how restrictive, no matter how permissive — had always been unconstitutional? Not only that, but no previous Court, no justice on any Court in all our history — not Marshall, not Story, not Taney, not Holmes, not Hughes, not Frankfurter, not even Warren — had ever been recorded as doubting the constitutionality of those laws. Everyone had always taken it for granted that the states had every right to enact them. Are we supposed to believe, in all seriousness, that the Court’s ruling in Roe v. Wade was a response to the text of the Constitution, the discernment of a meaning that had eluded all its predecessors, rather than an enactment of the current liberal agenda? Come now. And notice that the parts of this “living document” don’t develop equally or consistently. The Court has expanded the meaning of some of liberalism’s pet rights, such as freedom of speech, to absurd lengths; but it has neglected or even contracted other rights, such as property rights, which liberalism is hostile to. In order to appreciate what has happened, you have to stand back from all the details and look at the outline. What follows is a thumbnail history of the Constitution. In the beginning the states were independent and sovereign. That is why they were called “states”: a state was not yet thought of as a mere subdivision of a larger unit, as is the case now. The universal understanding was that in ratifying the Constitution, the 13 states yielded a very little of their sovereignty, but kept most of it. Those who were reluctant to ratify generally didn’t object to the powers the Constitution delegated to the federal government. But they were suspicious: they wanted assurance that if those few powers were granted, other powers, never granted, wouldn’t be seized too. In The Federalist, Hamilton and Madison argued at some length that under the proposed distribution of power the federal government would never be able to “usurp,” as they put it, those other powers. Madison wrote soothingly in Federalist No. 45 that the powers of the federal government would be “few and defined,” relating mostly to war and foreign policy, while those remaining with the states would be “numerous and indefinite,” and would have to do with the everyday domestic life of the country. The word usurpation occurs numberless times in the ratification debates, reflecting the chief anxiety the champions of the Constitution had to allay. And as a final assurance, the Tenth Amendment stipulated that the powers not “delegated” to the federal government were “reserved” to the separate states and to the people. But this wasn’t enough to satisfy everyone. Well-grounded fears persisted. And during the first half of the nineteenth century, nearly every president, in his inaugural message, felt it appropriate to renew the promise that the powers of the federal government would not be exceeded, nor the reserved powers of the states transgressed. The federal government was to remain truly federal, with only a few specified powers, rather than “consolidated,” with unlimited powers. The Civil War, or the War Between the States if you like, resulted from the suspicion that the North meant to use the power of the Union to destroy the sovereignty of the Southern states. Whether or not that suspicion was justified, the war itself produced that very result. The South was subjugated and occupied like a conquered country. Its institutions were profoundly remade by the federal government; the United States of America was taking on the character of an extensive, and highly centralized, empire. Similar processes were under way in Europe, as small states were consolidated into large ones, setting the stage for the tyrannies and gigantic wars of the twentieth century. Even so, the three constitutional amendment ratified after the war contain a significant clause: “Congress shall have power to enforce this article by appropriate legislation.” Why is this significant? Because it shows that even the conquerors still understood that a new power of Congress required a constitutional amendment. It couldn’t just be taken by majority vote, as it would be today. If the Congress then had wanted a national health plan, it would have begun by asking the people for an amendment to the Constitution authorizing it to legislate in the area of health care. The immediate purpose of the Fourteenth Amendment was to provide a constitutional basis for a proposed civil rights act. But the Supreme Court soon found other uses for the Fourteenth Amendment. It began striking down state laws as unconstitutional. This was an important new twist in American constitutional law. Hamilton, in arguing for judicial review in Federalist No. 78, had envisioned the Court as a check on Congress, resisting the illicit consolidation or centralization of power. And our civics books still describe the function of checks and balances in terms of the three branches of the federal government mutually controlling each other. But in fact, the Court was now countermanding the state legislatures, where the principle of checks and balances had no meaning, since those state legislatures had no reciprocal control on the Court. This development eventually set the stage for the convulsive Supreme Court rulings of the late twentieth century, from Brown v. Board of Education to Roe v. Wade. The big thing to recognize here is that the Court had become the very opposite of the institution Hamilton and others had had in mind. Instead of blocking the centralization of power in the federal government, the Court was assisting it. The original point of the federal system was that the federal government would have very little to say about the internal affairs of the states. But the result of the Civil War was that the federal government had a great deal to say about those affairs — in Northern as well as Southern states. Note that this trend toward centralization was occurring largely under Republican presidents. The Democrat Grover Cleveland was one of the last great spokesmen for federalism. He once vetoed a modest $10,000 federal grant for drought relief on grounds that there was no constitutional power to do it. If that sounds archaic, remember that the federal principle remained strong long enough that during the 1950s, the federal highway program had to be called a “defense” measure in order to win approval, and federal loans to college students in the 1960s were absurdly called “defense” loans for the same reason. The Tenth Amendment is a refined taste, but it has always had a few devotees. But federalism suffered some serious wounds during the presidency of Woodrow Wilson. First came the income tax, its constitutionality established by the Sixteenth Amendment; this meant that every U.S. citizen was now, for the first time, directly accountable to the federal government. Then the Seventeenth Amendment required that senators be elected by popular vote rather than chosen by state legislators; this meant that the states no longer had their own representation in Congress, so that they now lost their remaining control over the federal government. The Eighteenth Amendment, establishing Prohibition, gave the federal government even greater powers over the country’s internal affairs. All these amendments were ominous signs that federalism was losing its traditional place in the hearts, and perhaps the minds, of Americans. But again, notice that these expansions of federal power were at least achieved by amending the Constitution, as the Constitution itself requires. The Constitution doesn’t claim to be a “living document.” It is written on paper, not rubber. In fact the radicals of the early twentieth century despaired of achieving socialism or communism as long as the Constitution remained. They regarded it as the critical obstacle to their plans, and thought a revolution would be necessary to remove it. As The New Republic wrote: “To have a socialist society we must have a new Constitution.” That’s laying it on the line! Unfortunately, the next generation of collectivists would be less candid in their contempt for the federal system. Once they learned to feign devotion to the Constitution they secretly regarded as obsolete, the laborious formality of amendment would no longer be necessary. They could merely pretend that the Constitution was on their side. After Franklin Roosevelt restaffed the Supreme Court with his compliant cronies, the federal government would be free to make up its own powers as it went along, thanks to the notion that the Constitution was a malleable “living document,” whose central meaning could be changed, and even reversed, by ingenious interpretation. Roosevelt’s New Deal brought fascist-style central planning to America — what some call the “mixed economy” but Hilaire Belloc called the Servile State — and his highhanded approach to governance soon led to conflict with the Court, which found several of his chief measures unconstitutional. Early in his second term, as you know, Roosevelt retaliated by trying to “pack” the Court by increasing the number of seats. This power play alienated even many of his allies, but it turned out not to be necessary. After 1937 the Court began seeing things Roosevelt’s way. It voted as he wished; several members obligingly retired; and soon he had appointed a majority of the justices. The country virtually got a new Constitution. Roosevelt’s Court soon decided that the Tenth Amendment was a “truism,” of no real force. This meant that almost any federal act was ipso facto constitutional, and the powers “reserved” to the states and the people were just leftovers the federal government didn’t want, like the meal left for the jackals by the satisfied lion. There was almost no limit, now, on what the federal government could do. In effect, the powers of the federal government no longer had to come from the people by constitutional delegation: they could be created by simple political power. Roosevelt also set the baneful precedent of using entitlement programs, such as Social Security, to buy some people’s votes with other people’s money. It was both a fatal corruption of democracy and the realization of the Servile State in America. The class of voting parasites has been swelling ever since. So the New Deal didn’t just expand the power of the federal government; that had been done before. The New Deal did much deeper mischief: it struck at the whole principle of constitutional resistance to federal expansion. Congress didn’t need any constitutional amendment to increase its powers; it could increase its own powers ad hoc, at any time, by simple majority vote. All this, of course, would have seemed monstrous to our ancestors. Even Alexander Hamilton, who favored a relatively strong central government in his time, never dreamed of a government so powerful. The Court suffered a bloody defeat at Roosevelt’s hands, and since his time it has never found a major act of Congress unconstitutional. This has allowed the power of the federal government to grow without restraint. At the federal level, “checks and balances” has ceased to include judicial review. This is a startling fact, flying as it does in the face of the familiar conservative complaints about the Court’s “activism.” When it comes to Congress, the Court has been absolutely passive. As if to compensate for its habit of capitulation to Congress, the Court’s post–World War II “activism” has been directed entirely against the states, whose laws it has struck down in areas that used to be considered their settled and exclusive provinces. Time after time, it has found “unconstitutional” laws whose legitimacy had stood unquestioned throughout the history of the Republic. Notice how total the reversal of the Court’s role has been. It began with the duty, according to Hamilton, of striking down new seizures of power by Congress. Now it finds constitutional virtually everything Congress chooses to do. The federal government has assumed myriads of new powers nowhere mentioned or implied in the Constitution, yet the Court has never seriously impeded this expansion, or rather explosion, of novel claims of power. What it finds unconstitutional are the traditional powers of the states. The postwar Court has done pioneering work in one notable area: the separation of church and state. I said “pioneering,” not praiseworthy. The Court has consistently imposed an understanding of the First Amendment that is not only exaggerated but unprecedented — most notoriously in its 1962 ruling that prayer in public schools amounts to an “establishment of religion.” This interpretation of the Establishment Clause has always been to the disadvantage of Christianity and of any law with roots in Christian morality. And it’s impossible to doubt that the justices who voted for this interpretation were voting their predilections. Maybe that’s the point. I’ve never heard it put quite this way, but the Court’s boldest rulings showed something less innocent than a series of honest mistakes. Studying these cases and others of the Court’s liberal heyday, one never gets the sense that the majority was suppressing its own preferences; it was clearly enacting them. Those rulings can be described as wishful thinking run amok, and touched with more than a little arrogance. All in all, the Court displayed the opposite of the restrained and impartial temperament one expects even of a traffic-court judge, let alone a Supreme Court. It’s ironic to recall Hamilton’s assurance that the Supreme Court would be “the least dangerous” of the three branches of the federal government. But Hamilton did give us a shrewd warning about what would happen if the Court were ever corrupted: in Federalist No. 78 he wrote that “liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other [branches].” Since Franklin Roosevelt, as I’ve said, the judiciary has in effect formed a union with the other two branches to aggrandize the power of the federal government at the expense of the states and the people. This, in outline, is the constitutional history of the United States. You won’t find it in the textbooks, which are required to be optimistic, to present degeneration as development, and to treat the successive pronouncements of the Supreme Court as so many oracular revelations of constitutional meaning. A leading liberal scholar, Leonard Levy, has gone so far as to say that what matters is not what the Constitution says, but what the Court has said about the Constitution in more than 400 volumes of commentary. This can only mean that the commentary has displaced the original text, and that “We the People” have been supplanted by “We the Lawyers.” We the People can’t read and understand our own Constitution. We have to have it explained to us by the professionals. Moreover, if the Court enjoys oracular status, it can’t really be criticized, because it can do no wrong. We may dislike its results, but future rulings will have to be derived from them as precedents, rather than from the text and logic of the Constitution. And notice that the “conservative” justices appointed by Republican presidents have by and large upheld not the original Constitution, but the most liberal interpretations of the Court itself — notably on the subject of abortion, which I’ll return to in a minute. To sum up this little constitutional history. The history of the Constitution is the story of its inversion. The original understanding of the Constitution has been reversed. The Constitution creates a presumption against any power not plainly delegated to the federal government and a corresponding presumption in favor of the rights and powers of the states and the people. But we now have a sloppy presumption in favor of federal power. Most people assume the federal government can do anything it isn’t plainly forbidden to do. The Ninth and Tenth Amendments were adopted to make the principle of the Constitution as clear as possible. Hamilton, you know, argued against adding a Bill of Rights, on grounds that it would be redundant and confusing. He thought it would seem to imply that the federal government had more powers than it had been given. Why say, he asked, that the freedom of the press shall not be infringed, when the federal government would have no power by which it could be infringed? And you can even make the case that he was exactly right. He understood, at any rate, that our freedom is safer if we think of the Constitution as a list of powers rather than as a list of rights. Be that as it may, the Bill of Rights was adopted, but it was designed to meet his objection. The Ninth Amendment says: “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” The Tenth says: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Now what these two provisions mean is pretty simple. The Ninth means that the list of the people’s rights in the Constitution is not meant to be complete — that they still have many other rights, like the right to travel or to marry, which may deserve just as much respect as the right not to have soldiers quartered in one’s home in peacetime. The Tenth, on the other hand, means that the list of powers “delegated” to the federal government is complete — and that any other powers the government assumed would be, in the Framers’ habitual word, “usurped.” As I said earlier, the Founders believed that our rights come from God, and the government’s powers come from us. So the Constitution can’t list all our rights, but it can and does list all the federal government’s powers. You can think of the Constitution as a sort of antitrust act for government, with the Ninth and Tenth Amendments at its core. It’s remarkable that the same liberals who think business monopolies are sinister think monopolies of political power are progressive. When they can’t pass their programs because of the constitutional safeguards, they complain about “gridlock” — a cliché that shows they miss the whole point of the enumeration and separation of powers. Well, I don’t have to tell you that this way of thinking is absolutely alien to that of today’s politicians and pundits. Can you imagine Al Gore, Dan Rostenkowski, or Tom Brokaw having a conversation about political principles with any of the Founding Fathers? If you can, you must have a vivid fantasy life. And the result of the loss of our original political idiom has been, as I say, to invert the original presumptions. The average American, whether he has had high-school civics or a degree in political science, is apt to assume that the Constitution somehow empowers the government to do nearly anything, while implicitly limiting our rights by listing them. Not that anyone would say it this way. But it’s as if the Bill of Rights had said that the enumeration of the federal government’s powers in the Constitution is not meant to deny or disparage any other powers it may choose to claim, while the rights not given to the people in the Constitution are reserved to the federal government to give or withhold, and the states may be progressively stripped of their original powers. What it comes to is that we don’t really have an operative Constitution anymore. The federal government defines its own powers day by day. It’s limited not by the list of its powers in the Constitution, but by whatever it can get away with politically. Just as the president can now send troops abroad to fight without a declaration of war, Congress can pass a national health care program without a constitutional delegation of power. The only restraint left is political opposition. If you suspect I’m overstating the change from our original principles, I give you the late Justice Hugo Black. In a 1965 case called Griswold v. Connecticut, the Court struck down a law forbidding the sale of contraceptives on grounds that it violated a right of “privacy.” (This supposed right, of course, became the basis for the Court’s even more radical 1973 ruling in Roe v. Wade, but that’s another story.) Justice Black dissented in the Griswold case on the following ground: “I like my privacy as well as the next [man],” he wrote, “but I am nevertheless compelled to admit that government has a right to invade it unless prohibited by some specific constitutional provision.” What a hopelessly muddled — and really sinister — misconception of the relation between the individual and the state: government has a right to invade our privacy, unless prohibited by the Constitution. You don’t have to share the Court’s twisted view of the right of privacy in order to be shocked that one of its members takes this view of the “right” of government to invade privacy. It gets crazier. In 1993 the Court handed down one of the most bizarre decisions of all time. For two decades, enemies of legal abortion had been supporting Republican candidates in the hope of filling the Court with appointees who would review Roe v. Wade. In Planned Parenthood v. Casey, the Court finally did so. But even with eight Republican appointees on the Court, the result was not what the conservatives had hoped for. The Court reaffirmed Roe. Its reasoning was amazing. A plurality opinion — a majority of the five-justice majority in the case — admitted that the Court’s previous ruling in Roe might be logically and historically vulnerable. But it held that the paramount consideration was that the Court be consistent, and not appear to be yielding to public pressure, lest it lose the respect of the public. Therefore the Court allowed Roe to stand. Among many things that might be said about this ruling, the most basic is this: The Court in effect declared itself a third party to the controversy, and then, setting aside the merits of the two principals’ claims, ruled in its own interest! It was as if the referee in a prizefight had declared himself the winner. Cynics had always suspected that the Court did not forget its self-interest in its decisions, but they never expected to hear it say so. The three justices who signed that opinion evidently didn’t realize what they were saying. A distinguished veteran Court-watcher (who approved of Roe, by the way) told me he had never seen anything like it. The Court was actually telling us that it put its own welfare ahead of the merits of the arguments before it. In its confusion, it was blurting out the truth. But by then very few Americans could even remember the original constitutional plan. The original plan was as Madison and Tocqueville described it: State government was to be the rule, federal government the exception. The states’ powers were to be “numerous and indefinite,” federal powers “few and defined.” This is a matter not only of history, but of iron logic: the Constitution doesn’t make sense when read any other way. As Madison asked, why bother listing particular federal powers unless unlisted powers are withheld? The unchecked federal government has not only overflowed its banks; it has even created its own economy. Thanks to its exercise of myriad unwarranted powers, it can claim tens of millions of dependents, at least part of whose income is due to the abuse of the taxing and spending powers for their benefit: government employees, retirees, farmers, contractors, teachers, artists, even soldiers. Large numbers of these people are paid much more than their market value because the taxpayer is forced to subsidize them. By the same token, most taxpayers would instantly be better off if the federal government simply ceased to exist — or if it suddenly returned to its constitutional functions. Can we restore the Constitution and recover our freedom? I have no doubt that we can. Like all great reforms, it will take an intelligent, determined effort by many people. I don’t want to sow false optimism. But the time is ripe for a constitutional counterrevolution. Discontent with the ruling system, as the 1992 Perot vote showed, is deep and widespread among several classes of people: Christians, conservatives, gun owners, taxpayers, and simple believers in honest government all have their reasons. The rulers lack legitimacy and don’t believe in their own power strongly enough to defend it. The beauty of it is that the people don’t have to invent a new system of government in order to get rid of this one. They only have to restore the one described in the Constitution — the system our government already professes to be upholding. Taken seriously, the Constitution would pose a serious threat to our form of government. And for just that reason, the ruling parties will be finished as soon as the American people rediscover and awaken their dormant Constitution. Post Comment Private Reply Ignore Thread Top • Page Up • Full Thread • Page Down • Bottom/Latest Begin Trace Mode for Comment # 3.
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