Book used: Constitutional Law, 16th Edition, 2007. Sullivan and Gunther. Foundation Press.
Despite the fact that Brutus is a G(enius), what has the U.S. Supreme Court done to keep the federal government from exercises power to “annihilate all the State governments, and reduce this country to one single government… (since) every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over everything that stands in their way?”
And so I enter the room–Heidegger was right.
I see Brutus. I begin, “the U.S. Supreme Court justices throughout American history have heeded former Chief Justice John Marshall’s bravura motto, ‘We must never forget that it is a constitution we are expounding’ (Dr. Fino, 2009). And the constitution provides the people of the United States with protection from the federal government through its enumerated powers, particularly the 10th Amendment.’
But then–there is Brutus… I hear (h)is providential tone. He is seething now a little at the necessary and proper clause, since the federal government does deem more and more power “necessary and proper” (Article I, § 8), and these powers have been used in an authoritarian nature… he is loud, “Shall the government exert authoritarian power without the consent of the governed?!”
In the decades following the signing of the constitution, Brutus is appalled to recognize the authority of a national bank. He has mixed feelings regarding Chief Justice Marshall’s opinion in McCulloch v. Maryland (1819). He agrees that the Constitutional Convention was a proposal to the people; that “the people decided to accept it (the constitution), an act of the people…Decision of the people was final and bound the state governments…The Union is a government of the people not of the states” (Dr. Fino, 2009).
Brave Brutus says, “the power of Maryland to tax should destroy the national bank. Let the people rule! Let the national government escape from economic manipulation!”
“Please keep to case law,” I stand.
“Gibbons v. Ogden (1824),” Brutus seethes now from deep reflection, “reveals that Marshall’s words regarding a constitution as originating from the people is vapid rhetoric; since Marshall does not believe that himself, otherwise he would have decided to keep the power to regulate commerce between the states—to keep alive the 10th Amendment—especially since this case occurred pre-civil war; when states still believed that they could legally secede from the Union, regardless of “commercial intercourse” (83). Shall the United Nations, then, establish the ultimate power over “commercial intercourse”?! Outlaw authoritarian acts! But leave alone the entrepreneurial spirit!
“The Shreveport Rate Case (1914),” Brutus commands, “was another step along the way of the federal authority usurping state’s rights. In this case, the Supreme Court decided in favor of the ICC regulation of intrastate charges for interstate carriers. And if the power to tax is the power to destroy, then the power of the federal government to regulate businesses within a state is the power to destroy state regulation. Even if the railroads approach to the Supreme Court was ill-worded, ‘Congress is impotent to control the intrastate charges of an interstate carrier,’ the fact remains that congress legally increased its power over the states (86, italics added)–always the constitution in all matters of life played! A Constitution, as Thomas Jefferson proclaimed, that should have been submitted to and been approved by the people!
“U.S. v. Darby (1941) was another slice of authority for the federal government, since the Court allowed the federal government to set the minimum wage for employees engaged in interstate commerce throughout the United States. Justice Stone diminished the importance of the Tenth Amendment when he wrote, ‘[Our] conclusion is unaffected by the Tenth Amendment, which [states] but a truism that all is retained which has not been surrendered…’ (101). Surely, the Tenth Amendment, which explicitly states that the powers not given to the federal government under the constitution are reserved to the states, or to the people, has been commandeered through time and law by the federal government—because of all three branches of federal authority–indeed because of the Supreme Court.
Brutus, the local genius, is mad. “Gonzalas v. Raich (2005) as the usurpation of economic power is now wholly the power of the federal authority. In this particular case, the Supreme Court decided that ‘production of the commodity meant for home consumption, be it wheat of marijuana, has a substantial effect on supply and demand in the national market for that commodity’ (120).” Brutus shouts: “the marijuana was only grown and consumed within one’s home, yet the federal authority supported by the Supreme Court reveals that actions within one’s home are subject to the commerce clause! Are not the State governments reduced to one single government? Has not the national government penetrated completely?!
“I have logically explained why your freedom is extinguished. Your defending of the federal authority is to illuminate that it actually has completely conquered the constitution and federalism. States constantly bend to the arm twisting of the federal authority, such as with the known coercion of the States to change the drinking age or else receive no highway funding…et cetera! It has been openly reported that the precedents and laws set by the W. Bush and Obama administrations violate numerous constitutional protections; such as the ‘Sneak and Peak’ clause in the Patriot Act that allows agents to legally search a citizen’s home without a warrant. Brutus might likely talk for hours—for days—about the complete strength of the federal government and its methods to extend its power through state governments absolutely.
I now vehemently respond with recent Supreme Court decisions (Hamdan V. Rumsfeld and Hamdi v. Rumsfeld); but as the conversation completely unwinds… Brutus’s continuous facts just might change my mind. Brutus, I now find, has become my guide. I might only be able to muster a few final words for the logical “local noble” patriot—”the Supreme Court is the last guardian of the people, and they still protect us from our government.” I might even vocally recall Dr. Fino’s lecture, “The Constitution must adapt to the ‘crises of human affairs’ if it is to endure.”
Brutus is certainly most appalled these 2012 days! “Have your read The Lethal Presidency or The Moral Hazard of Drones?”
An hour later, he has justifiably established that the Iraq War and other “crises of human affairs” today are contrived—pretext after pretext after pretext–“even though there are 100,000 evil-doers amongst 7 billion citizens of Earth!
“Just recall the Gulf of Tonkin Resolution! Oh, let’s be sure, habeas corpus was suspended during the Civil War because armies of men killed each other on American soil, yet W. Bush did so without a war between armies of men within these united States—whatsoever!”
I think, “Sleep poor Brutus, sleep.”
I say, “Speak Now! Noble Brutus! How shall you develop this change?!”
I hear, again, his providential voice: “In every election, IF there is not a presidential candidate–truly willing to make America non-authoritartian–THEN vote for your freedom. Protest, by vote, and write-in Joe Gratis!”
The Moral Hazard of Drones: http://opinionator.blogs.nytimes.com/2012/07/22/the-moral-hazard-of-drones/?smid=tw-share
The Lethal Presidency: http://www.esquire.com/features/obama-lethal-presidency-0812