If you have not read parts 1, 2 and 3 of this topic, posted on January 30, February 3, and February 11, I encourage you to do so before reading this post. You should be aware of: (a) how I define “morality” and “interpersonal relationships” for these posts; (b) my proposition that our Founders rightly believed the power to “legislate morality” should be reserved to smaller governmental units, as the most effective form of democracy supporting greater personal liberty; and (c) the attack on democracy (restricting small-government legislative authority) that entered through interpretation of the 14th Amendment.
For a century or so the rules of morality—how people ought and ought not behave toward and around one another—were established by local governments. Rules varied widely from one community to another. If you wanted to live among Methodists, you could select a town of mostly Methodists and the local government catered to Methodism. If you wanted to live in a pornography-free community, you moved to one, or you organized enough people in your community to elect people who would ban it.
This freedom of local governments to set the rules of morality was not always something to be proud of. The poster-child example of this, of course, was slavery. The freedom of local governments to set rules, coupled with the physical power of arms to enforce those allowed one group of people who had power to enact laws that made the other people “property” instead of human. The one group “legally” denied the others a place at the democratic “table.” This was the ultimate perversion of democracy, of course, and the 14th Amendment attempted to bring all people back to an equal place in the rule-making.
It has been pointed out that even after the 14th Amendment was passed, declaring all people to be citizens and entitled to privileges and immunities, to life, liberty, and property, and the full benefit of due process and equal protection, attempts were still made to deny blacks a place at the democratic table. From the obvious example of a poll tax to prevent poorer former slaves voting, to bizarre and obviously contrived requirements (like, you can vote only if your grandpa could vote prior to the date of the Emancipation Proclamation!) those in power attempted to retain it. Federal laws were enacted to give teeth to the purposes of the 14th Amendment. In today’s environment, those denied access to the polls would file suit asserting that the state or local government was denying them a right guaranteed by the 14th Amendment. In the late 1800s it seems that the solution was to enact federal legislation to enforce compliance upon the local officials. But the crux of the issue (the proper role of the bigger government imposing on the little ones) was assuring that all humans had equal access to the law-making process.
But let’s go back to the two prongs of “power grab” by powerful politicians in Washington D.C. First, when powerful politicians did not agree with the rules of morality set by local governments they could impose their own standards through the 14th Amendment. They appointed Federal judges who would overrule the local majority opinion and “protect” the individual who wanted to deviate from community standards. They did this by interpreting the 14th Amendment as extending the Bill of Rights’ limitations on Congress’ power to become limitations on all government power (explained further in Part 3 of this series). As such, local rules of morality were now extinguished, and a new national morality—or “national immorality” if you please—was imposed on everyone, everywhere.
For the most part this approach was, and still is, seen as rights derived by negating government power. By the extension of the Bill of Rights against all government bodies, you have a right to do things that a majority of your peers, and all state and local elected officials, might think you should not do…so long as you can get a federal judge to define what you want to do as a right under the Bill of Rights.
This gave the powerful politicians part one of their power to impose their morality on us all. We can no longer choose for ourselves and our communities through the free democratic process to post the ten commandments in schools, to place a nativity scene on the courthouse lawn, to ban abortion, to prohibit fornication, or to punish those who would corrupt their minds and others through pornography. (If you doubt that the Founders believed states and local governments should be able to set their own limits on licentiousness of speech, press, etc., read Thomas Jefferson’s “Kentucky Resolution.” It’s an eye-opener for those of us born and raised since the 1960s!)
But how will the powerful politicians go the next step and start writing their own rules of morality for us all? Remember that the Constitution was an agreement by the states to delegate limited authority to the federal government. The federal government could not write rules for interpersonal relationships. According to Article I, Section 8, Clause 3 of the Constitution, Congress could “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” What do those three phrases mean?
The first is easy. States could not negotiate treaties, impose tariffs, etc., with foreign countries. That would be the job of the feds. The third clause…well, not as obvious today as it was in the 1790s, but “Indian tribes” were almost like another country. The feds were to make rules for and deal with the Native American, which involved everything from war, to treaties, to reservations. (When you think of the correlation between more powerful politicians and liberal social policies vs. lower levels of government and conservative social policies, notice the fact that gambling and casinos have been permitted on “Indian reservations” more than where state and local governments set the rules of morality. Coincidental? Hmmm… oops, I digressed.)
But what about the second type: “commerce… among the several States”? For the first 140 years or so this clause, linked with the 10th Amendment, was interpreted narrowly. Navigable waters that crossed state lines was a rare example of Congress having the power, approved by the Supreme Court, to regulate commerce among states. In order for Congress to act, it had to be regulating the activities of states. The feds would act when the matter was beyond what states could independently address, i.e., where states had competing interests and a higher authority was needed to arbitrate. Remember the principal of subsidiarity? (see Post 2.)
So what did these three clauses not mean? They did not mean writing laws for how businesses would be run, how families would be defined, or otherwise what people ought and ought not do with or to each other. Morality and interpersonal relationships were none of the feds’ constitutional business.
This limitation on the ability to regulate people was simply not acceptable to the type of people who want to impose their morality on everyone else. Like our current President, for example, who wants to dictate what is “fair” and the “right direction” for everyone. But President Franklin D. Roosevelt came long before Obama.
FDR was very aggressive about imposing his will on everyone. He simply was not going to let the 10th Amendment get in his way. Under FDR’s leadership, Congress passed a series of laws attempting to regulate interpersonal—rather than just interstate—relationships. But in the decades leading up to 1936, the Supreme Court had struck down a laundry list of federal legislation attempting to regulate morality: minimum-wage laws, child labor laws, agricultural relief laws, and virtually every element of FDR’s New Deal legislation that had come before it. The 10th Amendment meant what it said. Wikipedia provides this snapshot of history, which gives insights as to how manipulative a President can be:
“In 1936, Roosevelt and Congress were implementing New Deal policies and the Supreme Court, in Carter v. Carter Coal Company,[10] struck down a key element of the New Deal's regulation of the mining industry, on the grounds that mining was not "commerce". After the Presidential and Congressional elections of 1936, Roosevelt began an assault on what he regarded as the Court's anti-democratic decisions. …”
Pause. Hear the spin? FDR said the court, by limiting the power of the federal government to regulate interpersonal relationships, was “anti-democratic.” How subtle. But democracy at the federal level is the least democratic form, democracy at the local level is the most democratic. We typically hear “legislating from the bench” is improper and “activist judges” are bad. I agree. But in stopping the federal attempts to regulate, the courts were preserving the ability of the local democracy to do what it does best: listen to the people most affected. The court was being pro-democracy! Back to Wiki…
“After winning the United States presidential election, 1936, Roosevelt proposed a plan to appoint an additional Justice for each sitting Justice over age 70. Given the age of the current Justices, this allowed a Supreme Court size of up to 15 Justices. Roosevelt claimed that this was not to change the rulings of the Court,
[…I can hear your sigh of relief to learn that…]
but to lessen the load on the older Justices, who he said were slowing the Court down.
“There was widespread opposition to this court packing plan
[…gives me a sense of nostalgia to know sane people still had influence back then…]
and in the end Roosevelt abandoned it. In what became known as "the switch in time that saved nine", Justice Owen Josephus Roberts and Chief Justice Charles Evans Hughes switched sides in 1937 and, in National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937), upheld the National Labor Relations Act, which gave the National Labor Relations Board extensive power over labor relations across the United States.”
So FDR got his way. The nature of man (see Post 2) is to impose our will on those around us, and those who are most aggressive about doing so seek the highest offices. FDR pushed his agenda, pushed justices around, pushed his morality on the nation…and most significantly, he fundamentally altered the relationship between state and federal governments.
This is not just a matter of which government will enact the best policy. When the federal government regulates a matter, it trumps any contrary state and local regulation on the same subject. The lower government is simply overruled. Worker protections or pro-business policies that are democratically enacted at a local level are nullified by federal legislation on the same topic. Thus morality is dictated by the most powerful politicians who take it upon themselves to speak on the subject.
One last quote from Wikipedia, which illustrates the common failure to perceive the fact that greater freedom of self-governance is provided by local democracy compared to its federal counterpart:
“The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause … Central to [the Court’s] theory was the belief that the democratic process was sufficient to confine the legislative power. Thus one of the central issues was whether the judiciary or the elected representatives of the people should decide what commerce is. The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. The debate over Commerce Clause jurisprudence thus includes philosophic differences over whether Congressional abuse of the Commerce Clause is best redressed at the ballot box or in the Federal courts.”
Wiki, along with a huge segment of our population, has swallowed FDR’s arguments whole.
The question was not one of whether the courts or “elected representatives of the people should decide what commerce is.” The state and locally elected representatives of the people had total authority to regulate commerce, and were doing as much of it as their electorate demanded. The question presented to the New Deal Court was whether the federal government had power to regulate private commerce or only commerce among the several States… as that pesky Constitution says. In other words, the court simply abrogated its constitutional duty to be a check on the federal administrative and legislative branches. If the democratic process was and is sufficient to stop abuse by legislative bodies then there is no reason for a constitution at all except, perhaps, to require that legislators be elected.
Any of our Founders who weren’t by this time spinning in their graves, must certainly have started. “In questions of power, then” the final link of Jefferson’s “chains of the Constitution” had been broken. We are not better off as a result. The self-centered nature of mankind, acknowledged by our Founders and long restrained by the Constitution, is on a rampage. Next time we will explore current results of this unleashed power.
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