Ratchet of rot

With few exceptions, bad Supreme Court precedents seem to move government in only one direction — toward greater power over people — despite the lack of authority for that in the Constitution as originally meant and understood. The Founders warned us of the dangers of creeping tyranny and usurpation from a failure of the people to be vigilant and diligent in their duty to supervise their public servants.

There is no better line of precedents to study to understand this process than those concerning the Commerce and Necessary and Proper clauses. They go back all the way to McCulloch v. Maryland in 1819, pivot on Wickard v. Filburn in 1942, and continue through this day. The main ones are gathered into a spreadsheet, Supreme Court decisions on the Commerce and Necessary and Proper clauses. It contains links to each case, indicated by red buttons, our assessments of the merits of the decisions and opinions, and brief comments on what is right or wrong with each. There are 44 decisions in the spreadsheet.

Some of this has been discussed in other articles, listed at the end of this article.

The texts of the opinions are instructive, but for full understanding it would help to have the original briefs in the cases, including those filed in the lower courts. We are working on getting those and will put them online when we do. In the meantime, one can discern some of what happened to produce the result.

Not all of these decisions were wrong. We include some that were right, usually earlier in our history, most of which were eventually overturned or restricted by later wrong court decisions.

The pattern is clear: In each such case there were strong political pressures to decide in favor of more government power, and weaker pressure against it. The Court yielded to the stronger pressure, and rationalized its decision in the ways it wrote its majority opinion. In some cases there were dissenting opinions that have more merit.

The process can be likened to a ratchet that only allows movement in one direction, or to a barrel of apples that are susceptible to rot. The only way to keep all the apples in the barrel from rotting is to remove the rotten ones faster than the rot spreads. Beyond a certain point that effort is futile, and the only solution is to throw out all the apples and sterilize the barrel, and at that point there may not be enough good apples to replace them.

This ratcheting up of power has incurred some political pushback, some of which managed to get correct decisions recognizing rights against the exercise of government powers. Some of the best decisions on rights emerged in that way. But those cases should not have been necessary if government officials and their patrons had not exceeded their constitutional authority in the first place.

Most federal criminal statutes are now based on this line of precedents. Appeals to the Tenth Amendment are futile when officials have the support of court precedents that support everything they want to do as a way to manage things that "have a substantial effect on interstate commerce". That position was reached step by step, each based on the ones before, that gradually moved beyond any reasonable interpretation of the words in the Constitution as originally understood, using the doctrine of stare decisis, discussed in an article below.

At this point the precedents are so entrenched that there is no serious hope of rolling them back through litigation. The only realistic alternative, as difficult as it might be, are constitutional amendments, and those amendments need to be worded to specifically overturn each of the precedents in the chain. Broad, general provisions won't do. They will have to be almost as specific as the court opinions are, and drafting such amendments is not a job for amateurs.


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Tsarnaev not guilty of federal charges

The Boston bombing suspect Dzhokhar Tsarnaev has been charged with multiple federal offenses, but none of them are authorized by the U.S. Constitution for offenses committed on state territory, as the acts in Boston were. If the federal courts were constitutionally compliant, they would be compelled to dismiss them all, and let the State of Massachusetts prosecute him under its laws.

The following is a summary of the main federal charges:
  1. Use of a weapon of mass destruction resulting in death and conspiracy.
  2. Bombing of a place of public use resulting in death and conspiracy.
  3. Malicious destruction of property resulting in death and conspiracy.
  4. Use of a firearm during and in relation to a crime of violence.
  5. Use of a firearm during and in relation to a crime of violence causing death.
  6. Carjacking resulting in serious bodily injury.
  7. Interference with commerce by threats or violence.
  8. Aiding and abetting.
Contrast this with the following, taken from the second of the unanimous Kentucky Resolutions of 1798, written by Thomas Jefferson, summarizing original understanding of the U.S. Constitution:
2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that 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 ;" therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States;" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.
Actually, Jefferson and the Kentucky Legislature did overlook one: crimes committed by military personnel, and militia personnel while in federal service, under military law. But that is a kind of private law for the military, and not applicable to the general public, so the omission is understandable.

The only federal crime which might be a fit for the acts committed is treason, the punishment of which is authorized in Article III:
Section. 3.Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
The bombing could be treated as "levying war", and there would seem to be more than enough witnesses to the overt act, if not to seeing the Tsarnaev brothers actually planting or triggering a bomb.

But treason is not one of the charges in the indictment. We should ask why not.

Here is what was said in debate in the Tenth Congress, 1808 Feb 11, 24, Mar 1; Annals 17:108-27, 135-49, 159-50:
Conspiracy is an offence no where mentioned in the Constitution. ... The power to punish conspiracy cannot be included with the class of incidental or resulting powers. ... the people of the United States, by declaring that treason should consist only in levying war. &c., intended to proscribe every other species of it; and it may be questioned whether we can with propriety introduce another species of treason into our penal code under the name of conspiracy. ... This crime called conspiracy, however odious, is in its nature so vague and indefinite, and liable to be proved by testimony of so suspicious a character, that I fear it would be dangerous to give it a place in our criminal code.
This argument prevailed, as representing original understanding of the Constitution of 1788 and amendments to it adopted in 1791, the Bill of Rights, concerning "conspiracy". The only further source of authority for it would have to come from subsequent amendments. The closest one finds is the 14th Amendment, except that it only authorizes penal legislation applicable to state actors, not to private persons generally, and the offenders in this case were not state actors.

The authority cited for all of these charges is the Commerce Clause, interpreted as authorizing criminal penalties under the Necessary and Proper Clause, mainly based on the Supreme Court precedent in Wickard v. Filburn, 317 U.S. 111 (1942), but that case and others to the same effect were wrongly decided, as I have argued in several articles:
If the American people were being properly educated, it would be nearly impossible to impanel a grand jury that would indict on such charges, or a trial jury that would convict. Achieving that level and kind of education is the challenge before us.

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