Rethinking America’s Supreme Judicial Dictatorship

by Thomas J. DiLorenzo

Recently by Thomas DiLorenzo: Charles Koch Makes a Good Point

"The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers."

~ Woodrow Wilson, Constitutional Government in the United States, p. 178

Eighteenth- and nineteenth-century Jeffersonians warned that if the day ever arrived when the central government became the final judge of its own powers, Americans would then live under a tyranny. The government, they believed, would inevitably proclaim that there are in fact no limits to its powers. That day came in 1865 when citizen control over the federal government ended along with the rights of nullification and secession. Not surprisingly, a warmongering, imperialistic megalomaniac like Woodrow Wilson would then celebrate this fact several decades later, as the above quotation attests.

The so-called system of checks and balances is a farce and a fraud; the reality is that all three branches of the federal government work together to conspire against the taxpayers for the benefit of the state and all of its appendages. As Judge Andrew Napalitano wrote in his book, The Constitution in Exile, the Supreme Court failed to rule a single federal law unconstitutional from 1937 to 1995. The Court is essentially a political rubber stamp operation with all of its black-robed ceremony being nothing more than part of the circus that is employed to dupe the public into acquiescing in its dictates.

There is no such thing as an "American union." The original union was a union of the free, independent, and sovereign states. If that union still existed, then Wisconsin, Florida, Massachusetts, Alabama, and all the other states would have at least a say in the current discussion in the Supreme Court over whether or not the American system of healthcare should be Sovietized. They do not. Every television and radio talking head is feverishly awaiting the Pronouncement from Upon High from the black-robed deities of the "Supreme" Court on this issue.

Did Thomas Jefferson, who penned the words, "Governments are instituted among Men, deriving their just powers from the consent of the governed," really think it was a good idea to place everyone’s liberty solely in the hands of five government lawyers with lifetime tenure? Or perhaps even one single government lawyer with lifetime tenure, i.e., the "swing vote" on the Supreme Court, thought by many to be one Anthony Kennedy? Not likely.

Now with perfect timing comes a great book that asks Americans to rethink the federal/judicial monopoly that is a primary source of their servitude to the state. Just published by Pelican Publishers is Rethinking the American Union for the Twenty-First Century, edited and with an introduction by Donald Livingston. It is a collection of essays by such authors as legal and constitutional scholar Kent Masterson Brown; Yours Truly; constitutional scholar Marshall DeRosa; philosopher Donald Livingston; Kirkpatrick Sale, author of the book, Human Scale; economist Yuri Maltsev; and Champlain College Professor Rob Williams.

A major theme of Rethinking the American Union is stated in Professor Livingston’s introduction where he quotes Thomas Jefferson as writing on August 13, 1800 that: "Our country is too large to have all its affairs conducted by a single government." Such a vast country detaches the people from their political representatives, which "will invite the public servants to corruption, plunder & waste," he wrote. In 1800! If "the principle were to prevail," Jefferson continued, "of a common law being in force in the U.S., (which principle possesses the general government at once of all the powers of the State governments, and reduces us to a single consolidated government) it would become the most corrupt government on earth" (emphasis added). This of course is exactly the kind of government that has been existence since 1865, when all states, North and South, became mere appendages of the central government in Washington, D.C. This relationship was cemented into place in 1913 with the advent of the income tax and the creation of the Fed, which gave the federal government the ability to threaten and bribe all individuals and all state governments to acquiesce in its dictates. As Frederic Bastiat sagely observed in his classic, The Law, "democracy" can become indistinguishable from socialism if it is characterized by governmentally-coerced uniformity, whether it is for socialized healthcare or anything else.

What could "the public good" possibly mean in a nation of 305 million people, Livingston asks. Well, it is what it is: "Washington could not be anything other than a scene of frenzied pork-barrel spending, waste, inefficiency, corruption, and special-interest patronage for the politically well connected." As your author has often said, the purpose of government is for those who run it to plunder those who do not.

The essays in the book are a response by a proposal by the late George Kennan who, late in his life, proposed limiting the tyrannical proclivities of American government by dividing it "into a dozen constituent republics."

Nationalism was the ideological cornerstone of all of the evils of government during the twentieth century and beyond, from National Socialism (Nazism) to communism and welfare/warfare statism. Devolution of power and the denationalization of government as an antidote is the subject of the essays.

In his essay, "Secession: A Constitutional Remedy that Protects Fundamental Liberties," Kent Masterson Brown, a Lexington Kentucky trial lawyer and legal scholar, writes of how secession was – and is – a remedy that evolved over the centuries as an essential ingredient of contract law. If the Constitution is an agreement or compact, he writes, then the states that are a party to it have a right of rescission. "[T]he equitable remedy of rescission in the law of contracts was one of the most important concepts applied by the framers and ratifiers of the Constitution . . ." Brown’s essay is a careful, lawyerly history of the right of secession, its role in American constitutional history, and of how it was undermined by statist politicians even prior to 1861.

Yours Truly contributes an essay on how, from the very origins of the American republic, such nationalist politicians and government bureaucrats as Alexander Hamilton, John Marshall, Justice Joseph Story, Daniel Webster, and Abraham Lincoln toiled mightily to rewrite American constitutional history in such a way that would have made the propagandists of the Soviet Union or Nazi Germany blush. Indeed, the latter characters might well have learned their tactics from their fellow nationalists in America generations earlier. Hitler himself did in fact quote Abraham Lincoln’s first inaugural address in Mein Kampf to make his case for centralized governmental power and the abolition of states’ rights in Germany.

Marshall DeRosa exposes the fatal flaw in the current Tenth Amendment Movement, namely, that it relies on the judgment of the Supreme Court as to whether nullification is constitutional. This "servile posture" to the central state has been so ingrained in the American mind by generations of government "education" that most "Tenthers" do not seem to realize the absurdity and futility of what they are doing. If they are serious about the devolution of power away from Washington and back to the people of the states, writes DeRosa, then they must realized that "there is neither divided sovereignty, an oxymoron if there ever was one, nor an imperium in imperio. Each of the several States is sovereign, and as sovereigns they have the prerogative to inform the national government that it has exceeded the grants of its authority. Whether that is by nullification (or interposition) via blocking national policies or a complete withdrawal from the onetime voluntary union of the States via secession is for each sovereign State to decide."

Of course, that would take principled courage on the part of any "Tenthers" who would not be intimidated by the state’s usual tactic of smearing all advocates of decentralization as racists who would like to bring back slavery or segregation. In utilizing this particular smear tactic the state relies on the "rational ignorance" of American history by almost all Americans these days, and believes that it can censor all discussion of its unconstitutional and tyrannical behavior by mere name calling.

The Tenthers must also realize that the Supreme Court is nothing more than "a facilitator of the national ruling class’s hegemony over the constitutional rights of the States." They must "be prepared to bypass the U.S. Supreme Court." DeRosa’s essay includes a scholarly history of how Jefferson’s cherished Tenth Amendment was destroyed by nationalist politicians, lawyers, and bureaucrats over the generations.

Donald Livingston presents the kind of essay that he has long been known for: a deeply scholarly effort that spans philosophy and history. He surveys the idea of republicanism going back 2,000 years in which it was always thought that republican government was only possible in relatively small polities. This is the history that informed Thomas Jefferson when he commented that the American polity of 1800 was too big to be governable by just one government. Over half of the states in the world today are not the massive mega-states like the U.S., but have populations of less than 5 million people, Livingston points out.

Kirkpatrick Sale revives the Aristotelian argument that everything in nature has a natural or efficient size beyond which it becomes dysfunctional. He makes the case that relatively small states of 3-5 million population have superior performance compared to large states in such areas as prosperity, crime, human rights, healthcare, literacy, and a general sense of well-being. He proposes a "Law of Government Size" that contends that "Economic and social misery increases in direct proportion to the size and power of the central government of a nation."

Yuri Maltsev applies Austrian economics to explain the failure of the Soviet Union. Without the institutions of private property and free market prices, there was never any chance that socialism in the Soviet Union (or anywhere) else could work as an economic system. Maltsev explains why in detail, in a fine primer on some of the basic principles of Austrian economics. He also explains why, in realizing that socialism could never work, "Kremlin leaders realized from the first that the only way of managing an economy under socialism was . . . with direct government coercion based on mass murder and forced labor." The only people in the world who still believe in socialism, Maltsev writes, are academics, especially American academics, who always strut about their campuses posing as Keepers of the Moral High Ground despite the fact that the system they associate themselves with is inherently based on mass murder and forced labor or slavery. "We should all be thankful to the Soviets that they proved conclusively that socialism does not work," Maltsev concludes.

The final essay by by Rob Williams is a history of the most active secession movement in America, the Second Vermont Republic. Vermont was an independent country from 1777 until it joined the American union in 1791; hence the name. The state’s propaganda organs, such as the Southern Poverty Law Center, have attempted to smear those associated with the Second Vermont Republic, but their attempts have been ludicrous. Claiming that these mostly liberal Democrats who are disgusted with both the national Republican and Democratic parties, are somehow part of a racist conspiracy to bring back Jim Crow Laws by advocating their independence from Washington, D.C. is only something that someone with an I.Q. of around 35 could believe. That is apparently the audience – and a major target of fund-raising appeals – of such repulsive race-hustling rackets as the Southern Poverty Law Center and the federal politicians who support them. Unlike most "Tenthers," the people of the Second Vermont Republic hold no delusions that the central state’s "Supreme" Court will someday dismantle the unconstitutional American empire that it has spent the past 150 years constructing.

March 28, 2012

Thomas J. DiLorenzo [send him mail] is professor of economics at Loyola College in Maryland and the author of The Real Lincoln; Lincoln Unmasked: What You’re Not Supposed To Know about Dishonest Abe and How Capitalism Saved America. His latest book is Hamilton’s Curse: How Jefferson’s Archenemy Betrayed the American Revolution – And What It Means for America Today.

Copyright © 2012 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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