In the next few years of the George W. Bush administration, it is almost certain that there will be a number of contentious battles between Democrats and Republicans and between the White House and the U.S. Senate over certain federal court nominees. While the issues will appear to be substantive and far-reaching — and no doubt they are in the present-day United States — one needs to examine another perspective concerning the federal courts, one that demonstrates how far this country has drifted from its original moorings in liberty.
Before the 20th century, the federal courts did not play much of a role in the daily lives of Americans. It is difficult to comprehend just how decentralized government power was in this country at one time, for even the structure of the various court systems ensured that the federal courts would not have much effect on the average person.
That state of affairs no longer exists. While the state courts still handle the bulk of criminal cases and lawsuits, federal courts have grown both in the size and in the numbers of cases heard. A federal criminal code that once had three crimes (piracy, treason, and counterfeiting) now contains thousands, and it is no exaggeration to say that most Americans at one time or another have violated a federal law for which there are serious criminal penalties. The violations mostly are made in ignorance, and the size of the U.S. population relative to what the federal courts can handle means that the vast majority of people won’t be arrested or charged with anything.
However, the huge numbers of potential federal “criminals” also mean that a large number of people who have no idea they have violated a federal law will be shocked to find themselves in the dock. On top of that, the civil dockets have metastasized, as the number of lawsuits filed in federal court by private individuals, businesses and corporations, and the government itself has expanded exponentially.
The federal courts did not grow on their own, nor does the U.S. Constitution create a large role for them. That the federal courts are the major players in the system of justice in this country is testament to the unconstitutional usurping of power by the three branches of the federal government. This development did not occur out of logic or necessity; the federal system did not grow simply of its own accord. Instead, the Leviathan we see today has come about because groups of intellectuals and lawyers actively sought to change the very meaning of law in the United States. It was and is a sorry episode of U.S. history, one of many such affairs that have turned the nation’s legal system from a marvel to a slough of treachery, deceit, and unpredictability. The system of justice that once protected the innocent and held contracts and private property to be near-sacred entities, has become a mechanism through which lawyers legally loot businesses and rogue prosecutors regularly charge, convict, and imprison the innocent.
While the centralization of government began in earnest in the victory of the northern states over the Confederacy in 1865 and continued during the Progressive Era of the late 1800s and early 1900s, the process reached warp speed during the 1930s, the period we know as the New Deal. The legislative agenda that President Franklin D. Roosevelt sought to impose was collectivist in nature and clearly went against the emphasis on individual rights that reflected the core philosophy of those who wrote the Constitution.
Although the U.S. Supreme Court resisted the New Deal during Roosevelt’s first term, ultimately the president was able to push his agenda by remaking the High Court, which became little more than a rubber stamp for policies that made a mockery of rule of law and of the rights of individuals.
As I shall demonstrate in this series, the Roosevelt administration inflicted damage on law in the United States that was both wide and deep.
However, regime changes do not occur in a vacuum. While the U.S. Supreme Court in 1935 held to some of the vestiges of constitutional government, the intellectual breakdown had begun long before the courts finally caved in to Roosevelt and gave him the powers he coveted. Thus, in this first section, I tell the story of how the law began to lose its way before the Great Depression. For the remnant who believe in the primacy of limited, constitutional government, it is a sorry tale, but one that we need to know.
The origins of U.S. law
While we like to think of U.S. law originating with the Constitution, the real “author” of the original legal system was William Blackstone, the great British jurist who wrote Commentaries on the Laws of England in the mid 1700s. Historian Daniel Boorstin wrote that this book was influential not only in England, but also in the American colonies, writing that “no other book — except the Bible — [had] played so great a role” in colonial thinking. Boorstin added that “Blackstone was to American law what Noah Webster’s speller was to American literacy.”
It was Blackstone who championed the ideal of law as a shield of the innocent, a tool that in the hands of government was to protect the life, property, and liberty of individual persons. Law was not only to constrain (and punish) those who would steal or kill, but also to constrain the powers and activities of those who were part of the state. Perhaps more than any other person, Blackstone defined the limitations of law and how, correctly laid out, law could be a bulwark against tyranny.
The men whose signatures graced the Declaration of Independence and later the U.S. Constitution, were thoroughly familiar with Blackstone’s themes and sought to carry them out in this new country. Perhaps it is deeply ironic that in 1776, the same year the Declaration of Independence was written, the “champion” of modern law made his own intellectual debut in England. Jeremy Bentham, who sat in Blackstone’s Oxford lectures as a student, penned an anonymous attack on Blackstone entitled “A Fragment on Government.”
“Fragment” took the opposite approach to every ideal Blackstone laid out in his writings and lectures. Government’s role in society, wrote Bentham, was not to protect the innocent or to be restrained in what it could do, but rather to have near-unlimited powers to ensure the overall happiness of society, or “the greatest happiness for the greatest number.”
One of the important doctrines of criminal law was the condition of mens rea, or what Blackstone termed “a vicious will.” In Blackstone’s view, a person had to intend to commit a crime, and had to know that what he was doing not only was “wrong,” but also would inflict harm on others. What made the difference between a civil and criminal offense was the nature and the scope of injury that one was wreaking upon another. Bentham thought otherwise. Law was to be used as a tool of the state for the imposition of the “greater good.”
While Blackstone’s ideals prevailed when the Framers wrote the Constitution, Bentham is the father of modern law in this country. Writes Paul Rosenzweig,
[Today] the criminal law has strayed far from its historical roots. Where once the criminal law was an exclusively moral undertaking, it now has expanded to the point that it is principally utilitarian in nature. In some instances the law now makes criminal the failure to act in conformance with some imposed legal duty. In others the law criminalizes conduct undertaken without any culpable intent.
The law as it stands today is not a direct descendant from what the Framers held to be the proper and good role of law in society. In fact, it is not even a distant cousin of what was written on parchment in that hot summer of 1787. First, the Constitution clearly separated the powers not only of the three branches of the national (or what we today call the federal) government, but also distinguished between the legitimate powers of states and the central government.
Perhaps it is instructive to remember that, at that time, people referred to the United States in the plural; that is, they would say, “The United States are …” In the state system of justice, common law, something inherited from Great Britain, held sway. For the majority of American citizens, any contact that they would have with the law was seen, for the most part, on the state or local level. There were few federal laws, and they dealt with issues of national taxation (tariffs) or national defense.
Individual rights versus national power
The Bill of Rights protects individual persons from the predations of the state, and was intended to restrain the proclivities of politicians and government authorities to grab power. That governments and the courts have ridden roughshod over those protections does not minimize their importance or the fact that they are enshrined in U.S. law, even if that law today is little more than parchment under glass.
At the time the Constitution was written, the rights of private-property ownership and the sanctity of contracts were front and center, not only in the minds of the document’s Framers, but also with the public at large. For example, the Fifth Amendment, which contains the Due Process clause, says that government cannot take property from any person, subject anyone to double jeopardy, compel anyone to testify against himself, or deprive anyone “of life, liberty, or property without due process of law” (emphasis mine). As William F. Shughart II, writes, the key issue of this clause deals with whether or not the concept of “due process” was “substantive” or “procedural.” The former interpretation would require a high burden of proof of a “public” need for government to act, while the second would be nothing more than a nuisance for public officials, who simply would have to give notice and follow some prescribed set of rote guidelines. Well into the 20th century, the courts held that “due process” was substantive, not just a roadmap for procedure.
The Commerce Clause of the Constitution has provided that “hook” for the nationalizing of law. Article I, Section 8, No. 3 says that Congress shall have power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” One of the things the Framers wished to avoid was for the states to levy tariffs against each other, as they had done under the Articles of Confederation. By giving Congress the authority to be the final arbiter between the states, the Framers in effect were setting up the United States as a large free-trade zone.
Unfortunately, Congress has seized upon the Commerce Clause as a mechanism for declaring nearly everything to be “interstate commerce.” This provides the hook for creating laws that have usurped the rightful power given to the states and that have given the federal government a blank check to do whatever the political classes want to do with almost nothing standing in their way but votes by members of Congress, a signature from the president of the United States, and an okay by the Supreme Court.
One of the ways the Framers tried to keep a balance of power in the federal government was through what is called the “nondelegation principle.” Article I, Section 1 declares, “All legislative Powers herein granted shall be vested in a Congress of the United States. . ..” In other words, only Congress could make laws and carry out those duties granted to it by the Constitution.
That meant that Congress was given sole privilege of making laws, with the executive branch charged with carrying out the laws. To ensure that the presidency would not become too powerful, the president of the United States was not given lawmaking powers. That legal principle fell by the wayside during the 1930s, as Congress — under the prodding of Franklin Roosevelt — allowed the executive branch to grab what in effect would be the power to make law.
This article originally appeared in the June 2005 edition of Freedom Daily.