Not a single person who signed the Constitution would say that
the Constitution is being observed today in any meaningful
sense.
- (2)
Quoted in A. Gulas, The
American Administrative State: The
New Leviathan, 28 DUQUESNE
L REV. 489, 490
(1990). (With Madison's warning
ringing in his ears, Gulas
nevertheless supports the
"New Leviathan.") See
also Peter B. McCutchen, Mistakes,
Precedent, and the Rise of the
Administrative State: Toward a
Constitutional Theory of the
Second Best, 80 Cornell
L. Rev. 1 (1994), in which
the author admits that we are no
longer under the Constitution, but
under a "second best"
system, and we must simply make
the best of it. The great
constitutional scholar E. S.
Corwin was
- told that Professor Powell of
Harvard carefully warns his class
in Constitutional Law each year
against reading the Constitution,
holding that to do so would be apt
to “confuse their minds.”
Certain it is that of the
6,000-odd words of the
constitutional document, at least
39 out of every 40 are totally
irrelevant to the vast majority,
as well as to the most important,
of the problems which the Court
handles each term in the field of
constitutional interpretation.
- E. Corwin, Constitutional
Revolution, Ltd., 13 (1941).
See also: Gary Lawson, The
Rise and Rise of the
Administrative State, Harvard
Law Review, Vol. 107, No. 6
(Apr., 1994), pp. 1231-1254
JSTOR
You've probably never
heard of "the administrative
state." Do a Google search for
"administrative
state" to begin your study.
This is just the tip of the iceberg. |
|
|
Scholars and political scientists will tell you what most
people don't know: we no longer live under the Constitution,
with its three branches of government. We live under "Administrative
Law" in an "Administrative
State." James Freedman has called "the
administrative state" "a fourth branch of
government,"[1] but
it is actually a form of government which Madison, as he wrote
in The Federalist, would have called “the very essence
of tyranny.”[2]
The Administrative State is also completely oblivious to the
fact that the Constitution was a document of "enumerated
powers." This means that the federal government was
intended to exercise powers only in areas that are specifically
enumerated in the Constitution. The federal government was given
no power over local schools, for
example. This is why some pro-constitutionalist politicians have
called for the abolition of the entire Department of Education.
The Declaration of Independence calls the British government
in 1776 a "tyranny." Today's
government in Washington D.C. is twenty or thirty times worse,
if we are to judge by tax rates, or
infinitely worse, if we are to judge by the fact that the
federal government makes it illegal to teach "The
Laws of Nature and of Nature's God" in public schools,
and removes copies of the Ten Commandments in public places, funds
Planned Parenthood (the nation's leading killer of pre-born
children), and has military bases
in over 100 nations.
Rather than calling attention to this tyranny,
most congressmen have continued to vote for higher
appropriations for this unconstitutional system. Both the
Republican and the Democrat parties are completely out of step
with the intent of the Founding Fathers and the genius of the
American system.
Many conservatives are convinced that Franklin
Roosevelt "suspended" the Constitution by
declaring a state of "national emergency" and
invoking "emergency
powers." They believe that if the "national
emergency" can be called off, we can turn off the
"emergency powers" and return to the Constitution and
big government will be eliminated.
Unfortunately, it's not quite that simple.
One of the leading advocates of this theory is Dr.
Eugene Schroder. I wrote him to ask him about some of the
gaps in his theory.
November 24, 1995
Dr. Eugene Schroder
P.O. Box 89
Campo, CO 81029
Dear Dr. Schroder,
I recently purchased your book, Constitution:
Fact or Fiction at a John
Birch Society Bookstore. I agree with your overall
conclusion (viz., "fiction"), but I'm not sure
I agree with your reasons.
I have read your materials, and have seen your video. I was
initially captivated by your whole "conspiracy" theory
-- and I would openly admit to being a "conspiracy
theorist."
I do not claim to be any kind of expert. I am not a full-time
"patriot" or "researcher," though I might
qualify as an amateur or hobbyist. I do have a State of
California-certified J.D. degree and I passed
the California Bar Exam. Even so, I still think you
should hear me out.
I never took a course in Administrative Law. I never really
understood what it was, except that it was somehow connected to
the bureaucracies. The subject is not on the Bar Exam. All of
this is new to me. But in the last couple of weeks I have read a
few things which have caused me -- reluctantly -- to question
the "Emergency Powers" panacea.
I say "panacea" because everyone in the Patriot
movement is speaking of this idea as a panacea. In an article
about you and your thesis in Anti-Shyster
magazine, vol. 5, no. 4, page 29, Alfred
Adask writes, "End the national emergency and almost
every 'alphabet-agency' will simply disappear." I truly
wish it were that easy. I no longer think it is.
Let us not forget that the 1973-74
Senate hearings[1] were set in
motion by a Democratic Congress which thought that by ending the
"national emergency" the Congress could take power
away from the Executive branch. Shifting power from one branch
to another, of course, will not solve our nation's problems.
The problem for which the "emergency powers" concept
is thought to be the answer (or the definitive
"paradigm" which helps us unlock the
"secret" to restoring "constitutional
liberties") is what political scientists refer to as the
"Administrative State." It
is simplistic, however, to believe that all America's problems
(which seem to be rooted in this "Administrative
State") began when Roosevelt declared a state of
"national emergency."
Your research is most interesting in indicting Roosevelt for
failing to honor his oath to
"support the Constitution," and Congress as well, for
approving his legislation without even reading it. "Government
by Emergency
"
has clearly continued in varying degrees since World War I.
But I believe our problems go much deeper than these declared
states of "national emergency." The
"Administrative State" is a reflection of our nation's
failure to resist the socialist
temptation. That failure goes back to the Constitution
itself.
James Freedman has surveyed the "Administrative State"
in his book Crisis and Legitimacy. He alerts us to the
fact that our problems did not begin in 1933.
Although the rise of the administrative process is often
identified with the presidency of Franklin D. Roosevelt, in
fact reliance upon administrative agencies to meet emerging
national problems long antedates the New
Deal. It is as old as the Republic itself. The First
Congress of the United States, meeting in 1789, enacted
legislation authorizing administrative officers[, and other
examples show that t]he administrative process thus has deep
roots.
Approximately one-third of the federal administrative
agencies were created before 1900, notably the Civil Service
Commission in 1883 and the Interstate
Commerce Commission in 1887.[2]
By 1891, the Pension Office of the Department
of the Interior, with six thousand employees and more than
a half-million cases pending for adjudication, was, according
to its commissioner, the "largest executive bureau in the
world." Still another third of the federal agencies were
created between 1900 and 1930, notably the Federal
Reserve Board in 1913, the Federal Trade Commission in
1914, and the United States Tariff Commission in 1916. During
these same decades, many state governments, responding to the
influence of the Granger and Progressive movements, created
administrative agencies to regulate banking, bridges, canals,
ferries, grain elevators, insurance, railroad freight rates,
and warehouses.
Reliance upon the administrative process was thus an
established practice by the time that Roosevelt became
President in 1933.[3]
In my view, this pretty much destroys the "emergency
powers" theory. As you point out, much of Roosevelt's
legislation was based on the emergency powers statutes left over
from World War I. But note that the Fed predated WWI
(1913) and its "Trading with the Enemy" Act. I would
say the "Creature
from Jekyll Island
"
is more of a disaster
than anything Roosevelt did. But, so far as I can tell, it was
not a result of any declared "national emergency." I
wrote Adask at the Anti-Shyster and told him that
Patriots must not think that just by terminating the
"national emergency" that things will be "back to
normal" (whatever that is). Any theory that cannot account
for the rise of the Federal Reserve Board is not going to be the
definitive theory which brings down the Administrative State.
I wonder if you have run across Michal Belknap's article in the Texas
Law Review entitled, "The New Deal and the Emergency
Powers Doctrine."[4] If you
have, skip the next couple of paragraphs.
You and I would agree with Belknap, I'm sure, when he says,
When Roosevelt took office, the Court was still interpreting
the Constitution in such a way as to impose significant
restraints on the regulatory activity of the federal
government. By the end of the New Deal, however, federal power
over economic and social matters had become essentially
limitless.
Your conclusion seems to be that this change took place
because of the acceptance of the "emergency powers"
concept. Belknap seems to disagree:
This view, however, is incorrect. The change occurred because
the American legal community could not accept the emergency
powers doctrine. Several decisions handed down by the Supreme
Court during and just after World War I had suggested that a
crisis temporarily expanded the sphere of federal power. New
Dealers, assuming that a domestic emergency would have the
same constitutional significance as a military one, offered
the emergency powers doctrine as a constitutional
justification for their recovery program. Most lawyers and
judges, including the Justices of the Supreme Court, accepted
neither the analogy between wars and depressions nor the legal
argument based upon it.[5]
Belknap shows that Roosevelt's New Deal legislation met with
sustained opposition in federal courts.[6]
Then Belknap claims that the entire concept of "emergency
powers" was repudiated by the Supreme Court, first in Panama
Refining Corp. v. Ryan[7]
and then more dramatically in A.L.A.
Schecter Poultry Corp. v. U.S.[8]
In Schecter, "the NRA attorneys, led by General
Counsel Donald Richberg, strongly advocated the use of the
'emergency powers doctrine.'"[9]
The Justices did not accept the government's arguments. . . .
Speaking for a unanimous Court, Chief Justice Hughes also
dealt a death blow to the emergency powers doctrine. Counsel
for the government's opponents relied on [Ex
Parte] Milligan,[10]
arguing that an "emergency does not increase
constitutional power nor diminish constitutional
restrictions." Yielding to their appeal, the Chief
Justice retreated from the near-endorsement he had given the
emergency powers doctrine in [Home
Building & Loan Association v.] Blaisdell.[11]
"Extraordinary conditions do not create or enlarge
constitutional power," he declared. The Court conceded
that such conditions might well require extraordinary
remedies, but that did not "justify action which lies
outside the sphere of constitutional authority." Those
who acted under authorization of the Constitution, the Court
said, were not free to transcend the limitations upon the
power that it granted merely because they believed that more
or different power was necessary.
After Schecter, the emergency powers doctrine
appeared to be dead.[12]
I think that Belknap's thesis is probably correct, although your
research is still very important. If you haven't worked through
Belknap's arguments, I would be happy to send you my analysis.
In a nutshell, the Judicial branch and the Legislative-Executive
branches[13] disagreed on what
kind of theory should serve as window-dressing for their
"Administrative State." One said "Emergency
Powers," the other said "No reason to suspend the
Constitution; let's call it 'Commerce Clause.'"[14]
The "Commerce Clause"
people seem to have won. But it's just a different name for the
same dictatorship.
The shift in the Supreme Court's attitude, from ruling more in
terms of free enterprise at first, and then shifting to such a
degree that "Beginning in 1937, with the National Labor
Relations Act, the Supreme Court upheld every piece of New Deal
legislation that it considered,"[15]
is itself an interesting story, involving intrigue at the
highest levels of government.[16]
Finally, Belknap really shakes up anyone who believes that by
terminating the "national emergency" we can end the
"Administrative state." His conclusion is that "The
growth of federal power, however, proceeded further under a
policy of 'judicial restraint' [under the commerce clause] than
it would have under the emergency powers doctrine."[17]
This underscores my conclusion that terminating the
"national emergency" will solve very little. No one in
the "Administrative State" is going to admit that the
Constitution was ever "suspended." They are going to
say that the whole "Administrative State" is
Constitutional; that they have been following the Constitution
all along. These people are completely without principle.[18]
The title of your book is perhaps truer than you think: The
Constitution is a "fiction." We better wake up
and smell the coffee.
I have my own theory as to why the Constitution is a Fiction,
and by the time you read this letter, I may have judgment passed
on that theory by a Federal District Court in Los Angeles.
My case in Federal Court involves the refusal of the State Bar
of California to admit me to the practice of law. Though I am
otherwise qualified, I have not been admitted because I have
demanded a modification of the required oath to "support
the Constitution." There are two reasons why I refuse to
take the present oath. The first is that I am a Theocratic
Christian, and the Constitution is an apostate, Secular Humanist
covenant. Dr. Gary North has proven this thesis in his 800-page
historical study, Political
Polytheism: The Myth of Pluralism.[19]
It used to be the case that only
Christians could hold public office.[20]
It is now the case that Christians are not allowed to become
attorneys, because the Constitution is (rightly or wrongly) held
to be a secular document, and a Christian's loyalty is to God --
a loyalty which is prior to any loyalty he has to the State. The
U.S. Supreme Court has ruled that Christians cannot take the
oath to "support the Constitution" in "good
faith."[21]
The second reason I will not take the oath is that I simply do
not "support" the Constitution. It was fine for a
generation that was moving away from hereditary monarchy toward
self-government, but the Constitution is now being used to move
us away from self-government. I support
"self-government," not "other-government,"
"political" government, or any other form of institutionalized
violence. The "Administrative State" is not the
result of Roosevelt's "national emergency" -- it is
the unfortunate (but logical) conclusion of the crypto-Communist
Constitution itself, which lets the socialist camel stick its
nose in the tent. Keep in mind this chilling fact: The
Constitution itself says that the Federal Government should
run the post office. We're obviously not dealing with people
who had a thorough understanding of laissez-faire
economics. Their defective economic theories are latent in the
Constitution itself. Christians should no longer "support
the Constitution." It is "syncretistic."
It is the Constitution, not a state of declared "national
emergency," which is at the heart of our nation's problems.
Belknap cites the case of U.S.
v. Macintosh,[22] which
overruled the case of Holy
Trinity Church v. U.S.[23]
This transformed America from an ostensibly Christian nation
into a secular "Garrison State." I believe this is the
true source of our nation's problems. This is the thrust of my
case in Federal Court. I would appreciate your prayers for Judge
Ronald S.W. Lew, as he considers my case, that he would make a
wise decision. I would be happy to send more information on my
case and my Biblical critique of the Constitution.
Thank you very much for your research, and it would be a
delight, and I would very much appreciate, hearing from you.
Sincerely,
Kevin Craig
Dr. Schroder did not respond.
The Federal District Court in Los Angeles held that I
could not become an attorney. That decision was upheld in the
Ninth Circuit Court of Appeals. The U.S. Supreme Court did not
hear my appeal from the California Supreme Court. More details here.
NOTES
(1) Emergency Powers Statutes:
Provisions of Federal Law Now in Effect Delegating to the
Executive Extraordinary Authority in Time of National Emergency;
Report of the Special Committee on the Termination of the
National Emergency, U.S. Senate, 93rd Cong., 1st Session,
(1973).
(2) While the rest of America was
celebrating the bicentennial of the Constitution (1787), the Public
Administration Review (organ of the Administrative State)
was celebrating the centennial of the ICC. Richard J. Stillman
II, "The Constitutional Bicentennial and the Centennial of
the American Administrative State." (Symposium: The
American Constitution and the Administrative State.) 47 Public
Administration Review 4-8 (Jan-Feb 1987). [kc]
(3) J. Freedman, Crisis and
Legitimacy 4 (1978).
(4) M. Belknap, "The New
Deal and the Emergency Powers Doctrine," 62 Tex. L. Rev.
67 (1983).
(5) Id., at 67-68.
(6) Id., at 94-96.
(7) Panama Refining Corp. v.
Ryan, 293 U.S. 388 (1935).
(8) A.L.A. Schecter Poultry
Corp. v. U.S., 295 U.S. 495 (1935).
(9) Belknap, at 96.
(10) 71 U.S. (4 Wall.) 2
(1866). See Belknap's discussion of Milligan at
78-79.
(11) 290 U.S. 398 (1934). A
good discussion of the hideous Blaisdell case is found in
H. Holzer, Sweet Land of Liberty? 42-54 (1983).
(12) Belknap, at 97. I should
note that the whole point of Belknap's article is that even
though the "emergency powers" doctrine was killed, it
should be revived as a useful tool of government policy.
Obviously he is not on our wavelength.
(13) Congress simply going
along with FDR's plans
(14) Or the "general
Welfare" clause (Art. 1, S 8, cl. 1). The Court called
their policy one of "judicial restraint."
(15) Belknap, at 103.
(16) M. Ariens, "A
Thrice-Told Tale, or Felix the Cat." (Role of Felix
Frankfurter in 1937 Constitutional Crisis), 107 Harvard Law
Review 620 (1994); G. White, "Felix Frankfurter, the
Old Boy Network, and the New Deal: Placement of Elite Lawyers in
Public Service in the 1930's (Legal History Symposium), 39 Arkansas
Law Rev. 631 (1986); S. Crockett, Frankfurter's Red
Record (1961).
(17) Belknap, at 103.
(quotation marks added)
(18) I speak of the architects
of the "Administrative State." The functionaries of
the Administrative State are average Americans. That is to say,
they are docile, ignorant of the Constitution, and will do
anything if "that's my job." Millions of people take
an oath to "support the Constitution" in order to get
a government check, ignorant of the fact that the Founding
Fathers never intended a majority of people to be getting checks
from the government. Covetous ignorance, not some kind of
"unique" evil, is the taproot of Naziism.
(19) I like to explain it this
way: If you are no big fan of Lyndon Johnson's Great Society,
keep in mind that the time interval between Johnson and the
Constitution is about the same as that between the Constitution
and the Puritans' Mayflower Compact. I believe that as far as
America had strayed from the Constitution by LBJ's day, so the
Founding Fathers had strayed from the Puritans by 1789. For a
much longer explanation, read Gary North's book, Political
Polytheism: The Myth of Pluralism (1989). At the end of
a rich 800-page historical/theological study, he concludes,
There is no escape from this conclusion: the United States
Constitution is an atheistic, humanistic covenant. The law
governing the public oath of office reveals this.
Unfortunately, this oath is rarely discussed. Christians who
do not analyze social and political institutions in terms of
the biblical covenant model are not sufficiently alert to this
crucial but neglected section of the Constitution. The
Constitution is not a Christian covenant document; it is a
secular humanist covenant document." (at 403-404)
(20) See the Delaware Constitution
(1776), Art. 22.
(21) In
re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed 1745
(1945); reh. den. 326 U.S. 807, 66 S.Ct. 94, 90 L.Ed. 491
(1945). Most Christians are not aware of this case, and so I do
not fault them for having taken the oath. But I know about it.
Thus, I am not simply "refusing" to take the oath;
under this ruling, I am not permitted by the U.S. Supreme
Court to take the oath. I am seeking to have this case and the
case of Torcaso
v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982
(1961) limited.
(22) 283 U.S. 605 (1931). See
Belknap at note 223.
(23) 143 U.S. 457 (1892).