At the request of the First Presidency and the Quorum of the Twelve Apostles, Elder Dallin H. Oaks of the Quorum of the Twelve testified in support of the Religious Freedom Restoration Act before the U.S. House Judiciary Committee’s Subcommittee on Civil and Constitutional Rights on 13 May 1992. Only two other times has an LDS Church representative brought an official Church stance to Congress.

If passed, the bill, which has the sponsorship of 188 members of Congress and the support of a broad spectrum of religious and civil libertarian groups, would restore the standard that requires government officials to show a “compelling governmental interest” before interfering with religious practices.

The introduction of the bill came in the wake of the 1990 U.S. Supreme Court decision in Employment Division v. Smith. The Court did away with the compelling governmental interest clause, ruling that a state need only show that its action advances a legitimate government policy.

The following is the text of Elder Oaks’s testimony before the subcommittee:

Mr. Chairman, I am privileged to appear before you to testify on behalf of The Church of Jesus Christ of Latter-day Saints in support of Congressional enactment of H.R. 2797, the Religious Freedom Restoration Act. I am here to present the official position of our eight-million-member church at the request of its highest governing bodies, the First Presidency and the Quorum of the Twelve Apostles, of which I am a member. As a general rule, our church does not take positions on specific legislative initiatives pending in Congress or state legislatures. Our action in this matter is an exception to this rule. It underscores the importance we attach to this congressional initiative to restore to the free exercise of religion what a divided Supreme Court took away in Employment Division v. Smith (1990).

I have had considerable personal experience with the Constitution and laws governing the free exercise of religion. Upon graduation from the University of Chicago Law School in 1957, I served as a law clerk to Chief Justice Earl Warren. For a decade I was a professor of law at the University of Chicago. During the last year of that service, I was also the executive director of the American Bar Foundation. For nine years I was president of Brigham Young University, the nation’s largest church-related university. I then served for three and one-half years as a justice on the Utah Supreme Court. I concluded that service in 1984 when I was called to full-time service as a member of the Quorum of the Twelve Apostles. My professional publications have included three books and numerous articles on the legal relationships between church and state.

History

The history of The Church of Jesus Christ of Latter-day Saints (sometimes called Mormon or LDS) in America illustrates the importance of requiring a “compelling governmental interest” before laws can be allowed to interfere with the free exercise of religion.

I know of no other major religious group in America that has endured anything comparable to the officially sanctioned persecution that was imposed upon members of my church by federal, state, and local government officials. In the nineteenth century our members were literally driven from state to state, sometimes by direct government action, and finally expelled from the existing borders of the United States.

On 27 October 1838, Missouri Governor Lilburn W. Boggs issued an order to the state militia that the Mormons “must be treated as enemies and must be exterminated or driven from the state, if necessary for the public good.” Three days later, segments of the Missouri militia attacked a small Mormon settlement at Jacob Haun’s mill. Seventeen men, women, and children were killed and thirteen more were wounded. After a reign of terror that included the burning of homes, the seizing of private property, the beating of men, and the raping of women, over ten thousand Mormons were driven from that state.

In the 1840s, after founder and Church President Joseph Smith was murdered by a mob while in state custody, Illinois state authorities supported or condoned the lawless element who evicted the Mormons from their cities and drove them across the Mississippi River to the West. This expulsion compelled the Mormons’ epic migration to the Great Basin, which was then beyond the borders of the United States.

The experience of the Mormon pioneers is analogous to the compelled migration of many of this country’s founding settlers—the Pilgrims, Separatists, Quakers, Catholics, and Puritans who fled England and Holland to escape religious persecution and to seek a sanctuary where they could practice their religion free from persecution.

I have a personal feeling for these persecutions, since some of my forebears came to America as refugees from religious persecution in their native lands, and most of my ancestors suffered with the Mormons in their earliest persecutions. For example, my third great-grandmother, Connecticut-born Catherine Prichard Oaks, was among the Mormons expelled from Missouri and later driven out of Illinois. Fleeing religious persecution, she died on the plains of Iowa, a martyr to her faith.

Following the pattern set by William Penn, whose 1682 constitution for the Quaker Colony of Pennsylvania had a model provision for safeguarding the religious liberties of its citizens, leaders of my church drafted a constitution for the proposed State of Deseret that contained a strongly worded guarantee of religious freedom. This proposed state applied for admission to the Union in 1849, but in the Compromise of 1850, Congress organized the Mormon areas into the Territory of Utah.

The persecutions continued. In the 1850s, the government of the United States, too willing to believe lies about conditions in Utah, sent an army of several thousand federal troops to subdue the supposedly rebellious Mormons.

From the 1860s through the 1880s, Congress and some state legislatures passed laws penalizing the religious practices and even the religious beliefs of the Latter-day Saints. Under this legislation, the corporate entity of The Church of Jesus Christ of Latter-day Saints was dissolved and its properties were seized. Many Church leaders and members were imprisoned. People signifying a belief in the doctrine of my church were deprived of the right to hold public office or sit on juries, and they were even denied the right to vote in elections.

Most of these denials of religious freedom received the express approval of the United States Supreme Court. It was a dark chapter in the history of religious freedom in this nation. I have a personal feeling for this chapter as well. My grandfather’s oldest sister, my great-aunt Belle Harris, was the first woman to be imprisoned during the polygamy prosecutions. In 1883, when she was twenty-two years of age, she refused to testify before a grand jury investigating polygamy charges against her husband. Sentenced for contempt, she served three and one-half months in the Utah territorial penitentiary.

The Compelling Governmental Interest Test Must Be Restored

The conflict between individual rights to freely worship God and government attempts to regulate or interfere with religious practices remains today. For decades the United States Supreme Court adhered to the First Amendment guarantee of free exercise by requiring the state to demonstrate a “compelling governmental interest” before interference with religious freedom would be tolerated. This test struck an appropriate balance between the needs of government to establish rules for the orderly governance of our society and the rights of citizens not to be unduly restricted in their religious practices. In those instances where elected officials approved laws which interfered with a specific religious practice, they had to sustain the burden of justifying their action by identifying a compelling government reason or interest for doing so. They also had to demonstrate that they had interfered with the religious practice by the least restrictive means possible. The compelling governmental interest test provided an essential protection for the free exercise of religion. Such a protection is vital. There is nothing more private or personal than the relationship of an individual to his or her God. There is nothing more sacred to a religious person than the service or worship of God.

With the abandonment of the “compelling governmental interest” test in the case of Employment v. Smith, the Supreme Court has permitted any level of government to interfere with an individual’s religious practice or worship so long as it does so by a law of general applicability that is not seen as overtly targeting a specific religion.

This allows government a greatly increased latitude to restrict the free exercise of religion.

If past is prologue, the forces of local, state, and federal governmental power, now freed from the compelling governmental interest test, will increasingly interfere with the free exercise of religion. We fear that the end result will be a serious diminution of the religious freedom guaranteed by the United States Constitution.

You will hear from others today whose religious practices have already fallen victim to government interference under the Supreme Court’s new standard. They will demonstrate the detrimental effects of the Smith decision in a manner more powerful than I could. I wish to point out, however, that most of the court cases involving government interference with religious liberty involve religious practices that appear out of the ordinary to many. By their nature, elected officials are unlikely to pass ordinances, statutes, or laws that interfere with large mainstream religions whose adherents possess significant political power at the ballot box. But political power or impact must not be the measure of which religious practices can be forbidden by law.

The Bill of Rights protects principles, not constituencies. The worshippers who need its protections are the oppressed minorities, not the influential constituent elements of the majority. As a Latter-day Saint, I have a feeling for that principle. Although my church is now among the five largest churches in America, we were once an obscure and unpopular group whose members repeatedly fell victim to officially sanctioned persecution because of their religious beliefs and practices. We have special reason to call for Congress and the courts to reaffirm the principle that religious freedom must not be infringed unless this is clearly required by a “compelling governmental interest.”

When the Supreme Court determines that a right is guaranteed by the Constitution, it has routinely imposed the compelling governmental interest test to prevent undue official infringement of that right. It is nothing short of outrageous that the Supreme Court continues to apply this protection to words that cannot be found within the Constitution, such as the “right to privacy,” and yet has removed this protective standard from application to the express provision in the Constitution’s Bill of Rights that guarantees the free exercise of religion. The Constitution’s two express provisions on religion suggest that protection of religious freedom was to have a preferred position, but the Smith case has now consigned it to an inferior one. That mistake must be remedied, and H.R. 2797 is appropriate for that purpose.

Conclusion

Mr. Chairman, The Church of Jesus Christ of Latter-day Saints commends the sponsors of H.R. 2797, the Religious Freedom Restoration Act, for their recognition of the importance of the free exercise of religion to the freedom and well-being of our pluralistic society. Although we would prefer that the Supreme Court reverse the Smith case and restore the full constitutional dimensions of the First Amendment protection of freedom of religion, we believe that this statutory restoration of the “compelling governmental interest” standard is both a legitimate and a necessary response by the legislative branch to the degradation of religious freedom resulting from the Smith case. For Mormons, this legislation implements in federal law a vital principle of general application embodied in our church’s eleventh article of faith, written in 1842:

“We claim the privilege of worshiping Almighty God according to the dictates of our own conscience, and allow all men the same privilege, let them worship how, where, or what they may.”

Thank you, Mr. Chairman.

Why is there such a general sense of crisis hanging over America?

The average citizen finds his orderly world eroding or even crumbling beneath his feet. His savings have recently become a very slippery kind of security. Taxes, inflation, and high interest rates are ravenously gnawing away at his dwindling standard of living. His hopes of a pleasant and safe retirement are proving illusionary. He has a feeling that he is being propagandized. programmed and over-governed to the point where his personal freedom seems to be shrinking on all fronts.

Who has been tampering with the soul of America?

Suddenly There Is a Voice In the Wilderness

Dr. Milton Friedman, Nobel prize-winning economist from the University of Chicago, took over a television network early in 1980 to shock Americans with the declaration that nearly all of our economic and political problems plaguing the United States are the direct result of the Federal Government indulging in practices which are entirely socialistic in their objectives and completely opposite to the success formula of the American founding fathers.

In ten separate one-hour television broadcasts, Dr. Friedman hammered home the message that the American founders had a better way. Then he backed it up with a well-documented book entitled, Free to Choose.

Who Is to Blame?

Some people were offended when Dr. Friedman identified those who are guilty of propelling us along our present disaster course. He said: “If you want to find the devil who is responsible for our becoming more socialist, go home and look in the mirror. We are all of us responsible. If Washington has been making us more socialist, it’s because we, as citizens, have been asking Washington to do so.

Special Interest Groups

Most Americans work through their own special interest groups to put an avalanche of pressure on “the system” in order to gain special privileges or unconstitutional advantages.

Nearly everybody got a wet dishrag in the face from Dr. Friedman. He included the multinational corporations, the big banks. the Federal Reserve System (whom he blamed for prolonging the 1929 depression), organized farm lobbies, big labor, the National Education Association, big cities, little cities, and a multitude of other special interest groups all trying to get something which the Constitution and the free-enterprise system strictly forbids.

Actually, this always happens once a government starts drifting toward socialism.

Why Socialism is Popular with So Many Politicians

The classical definition of socialism will help explain why it is popular with so many politicians. Socialism is defined as:

“The government ownership or control of the means of production (farms, factories, mines and natural resources) and the means of distribution (transportation, communication, banks, commercial agencies, etc.).

To achieve this, socialism always imposes exorbitant taxes and plunges the nation into a huge national debt. In the U.S. taxes now provide hundreds of billions of dollars for distribution by the politicians. In addition, other hundreds of billions are borrowed. Today, the annual interest payments run up around sixty billion dollars — more than the cost of World War I!

Why is Congress doing this?

Dr. Milton Friedman came right out and said it: “The politicians are using a lot of this money to buy votes.”

What the Founding Fathers Said

Samuel Adams pointed out that the founders had done everything possible to make the principles which we call Socialism, unconstitutional. 1

Socialism in the United States means power gravitating to Washington, and to prevent this, the founders adopted the idea of separation of powers. The Federal Government was given only a few limited and specific powers and all other powers were retained on the local level by the States and the people. (Tenth Amendment)

James Madison spelled it out in the Federalist Papers, Number 45, when he said, “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

How Did the Federal Government Acquire So Much Power?

All the special interest groups from the big international banks and multinational corporations down to the farmer and rank-and-file labor union member, found they could do things through the national government which were unlawful to do themselves. So a variety of schemes evolved.

The main thrust was to give the Federal Government power to take from the “haves” and give to the “have nots.” All special interest groups consider themselves “have nots.”

The Federal Government gradually acquired its power by two devices: 1. Deliberate distortion of the Constitution. 2. Naked seizure of power by usurpation.

100 Ways These Schemes Are Wrecking America

Just to illustrate what the socialist central government’s grasping for power has done to America, we are itemizing one hundred specific examples.

All of these examples represent either direct’ violations of the Constitution as originally intended by the founders or a violation of the principles laid down by the founding fathers as they structured the American civilization.

It should be kept in mind that these are only examples. The complete list would be far more voluminous.

The Ten Worst Problems

Here is a list of what most authorities consider to be the ten worst problems facing America:

1. An alarming rate of inflation which is wrecking the stability of the entire American economy.

2. A deteriorating money system which has no gold or silver base as required by the Constitution.

3. A fantastic national debt of nearly a with interest payments of more than sixty billion dollars per year.

4. A policy of deficit spending which is passing along this generation’s extravagance to be paid for by the next generation — something the founders said was immoral.

5. An overwhelming burden of stifling taxation which is now taking away nearly half of all American earning power.

6. The strangulation of the free-enterprise system with over-regulation, over-taxation, and blatantly unfair competition from 700 government-owned corporations and more than 11,000 government-owned businesses which are usually subsidized and pay no taxes.

7. A federal bureaucracy of 3 million employees plus many more millions in government service on the state and local level. These now comprise one out of every five members of the American work force.

8. A federal Social Security System which was sold to the American people as “insurance” but which has turned out to be a highly discriminatory welfare program, now on the verge of bankruptcy.

9. The abandonment of the Monroe Doctrine which is allowing the United States to be gradually encircled by an avowed enemy equipped with nuclear missiles.

10. Federally-funded programs and Federally enunciated policies which are having a devastating impact on the morality of the nation and the structure of the family.

Smashing Constitutional Barriers

The U.S. Supreme Court reversed the traditional restrictions on the Federal Government in 1936 with its dictum in the Butler case. (297 U.S. 1). Justice Roberts interpreted the “general welfare” clause as a general grant of power to Congress to tax and spend for anything the Congress felt was in the interest of the nation’s welfare. This opened the U.S. Treasury to the unlimited looting by politicians who saw this as a golden opportunity to increase taxes and buy votes with Federally-funded projects in their respective states. Throughout this article we will be citing examples of programs which have no authorization in the traditional Constitution and are therefore examples of outright usurpation or deliberate distortion of the Constitution by Supreme Court edicts.

Unconstitutional Legislation Leading to the Destruction of the American Dollar A long series of radical legislative enactments in direct violation of the Constitution led to the destruction of the American dollar:

11. The 1913 transfer of power over the money and credit system of the United States from Congress to a consortium of private bankers operating under the name of the Federal Reserve Bank.

12. The 1933 abandonment of the gold standard for American Citizens while allowing foreigners to continue redeeming American money in gold.

13. The 1933 unconstitutional mandate requiring all Americans to surrender their gold.

14. The 1933 cancellation of thousands of contracts containing “payment in gold” clauses.

15. The 1964 abandonment of the silver standard for both coins and Federal Reserve Notes.

16. The 1971 mandate that even foreigners holding American paper money could no longer redeem it in gold.

17. The repeal (without any amendment) of the Constitutional requirement that the States pay all their debts in “silver or gold.”

As a result of these aberrations in the American success formula, the U.S. dollar became a “floating” unit of value with its purchasing powers drifting ever downward. Skyrocketing inflation was the inevitable result.

Unconstitutional Expenditure of Federal Funds

The Federal Government was only authorized to tax Americans and spend their money for specific purposes.

The Founders knew that funding “good causes” can get completely out of hand if it isn’t supervised close to home by the people who care about what happens to their money. That is why Federal taxes for “good causes” were outlawed in the Constitution. Nevertheless, the government finally invaded the field of “good causes” during various wars, depressions and emergencies, and now expends billions outside of its constitutional authority.

Dr. Milton Friedman emphasized in the TV series, “Free to Choose,” how disappointing, inefficient, and scandalously expensive the Federal financing of “good causes” has been. Here are a few examples to add to our numerical list of 100 things which are bankrupting America and creating problems rather than solving them.

18. Billions in foreign aid.

19. Billions for Medicare which has skyrocketed medical costs.

20. Billions for Medicaid which is pushing the U.S. toward Socialized Medicine.

21. Billions for the Federal Department of Education. (Dr. Friedman points out that since the Federal Government became involved in the schools, American education has seriously deteriorated.)

22. Federal Welfare through HEW which has failed miserably in actual performance and is plagued by continuous scandal and waste.

23. The Office of Economic Opportunity which has proven uneconomical and discriminatory.

24. Federal Housing and Urban Development (HUD) which has proven unbelievably expensive and counter-productive.

25. Community Health Services and Facilities Act.

26. Bureau of Employment Security which the State was handling originally.

27. Financing the give-away of the Panama Canal.

28. Bailing out the City of New York after 40 years of extravagance and bad management.

29. Bailing out the Chrysler Corporation after strangling it into bankruptcy with taxation and over-regulation.

30. Billions to local law enforcement which has been counter-productive, wasteful, and has failed to curb crime.

31. Federal Insurance Administration.

32. Billions expended in loans and grants to the Small Business Administration.

33. All-Risk Crop Insurance which subsidizes losses from almost any cause while other fields of endeavor have to pay for their occupational losses.

34. Appalachia Development Program.

35. National Endowment for the Humanities (arts, social science, linguistics, literature, etc.)

36. Business disaster loans.

37. The Peace Corps which wasted millions pretending to help other nations with American volunteers.

38. Land Open-Space Improvement Program.

39. Language Development Program.

40. Library Financing Services Program.

41. Student loans which tens of thousands failed to repay on the assumption the government “owed it” to them.

42. Manpower Administration designed to fulfill the unconstitutional and unrealistic promise of Washington to guarantee every American a job.

43. Manpower Development and Training Act to patch up some of the damage created by the disruptive and discriminatory minimum wage law.

44. Mental Health Research and Training.

45. Federal National Mortgage Association.

46. Neighborhood Social Centers.

47. Nursing Home Federal Assistance Program.

48. Federally Financed Children’s Day-Care Centers.

49. Rehabilitation of Apartments.

50. Sewage Disposal Facility Grants.

51. National Teachers Corps.

52. Urban Renewal which deprives hundreds of thousands of central city residents of their homes.

53. Waste Disposal Grants.

This list could go on for several pages. These expenditures for “good causes” and running into tens of billions of dollars, are so numerous that they are compiled in a 2 inch volume entitled, Encyclopedia of U.S. Government Benefits, published by William H. Wise and Co., Union City, New Jersey.

Unconstitutional Expansion of Presidential Powers

There has been no greater breakdown of Constitutional checks and balances than that which has occurred between the Congress and the Executive Branch. Not only have the Presidential powers been expanded by outright usurpation, but Congress has cooperated by delegating unconstitutional authority to the President to make laws, interpret laws., and impose penalties for infractions. In the Federalist Papers the Founders defined this combination of power as the formula for “tyranny.”

Here are some of the areas of greatest concern:

54. Under the Constitution, Congress has the exclusive authority and responsibility to make laws, but today the President issues far more laws through “executive orders” than are passed by Congress.

55. The President holds “summit conferences” with other heads of State and enters into private arrangements which often remain secret. The mysterious Yalta Agreement in 1945 is still being implemented by the State Department without any public knowledge of what commitments were actually made. These are called “Executive Agreements.” This whole procedure violates the treaty clause of the Constitution where it provides that agreements with foreign powers shall be presented to the Senate for its advice and consent. No agreements with foreign powers are to become law unless two-thirds of the Senate has approved them.

56. The Congress has also set up as part of the administrative machinery of government certain administrative agencies which hand down decrees and edicts which are enforced by the courts. This is called “administrative law” and never passes through the screening process of Congress as required by the Constitution.

57. The Executive Branch continually threatens to withhold grants to the States unless they conform to Federal mandates, policies, or programs which often have nothing to do with the grant itself.

58. The threatened withholding of Federal funds has also been used to secure votes from reluctant Congressmen and Senators, thereby corrupting the American system of representative government.

Unconstitutional Expansion of Judicial Power

There are at least three areas in which the Federal judiciary has projected itself and begun operating completely outside the boundaries of the Constitution:

59. The first is in the field of “judicial legislation.” The Supreme Court has frequently pretended to interpret an existing law and twisted its meaning to create an entirely new law. This is often done with the full knowledge that the Court is creating something which Congress never intended or never considered.

During the administration of the Warren Court, this practice became so flagrant and frequent that the chief justices of the State supreme courts issued a formal charge of unconstitutional usurpation against the Federal judiciary.

60. The Federal courts have also invaded the administrative function of government by assuming supervisory administration of compulsory school bussing.

61. Some Federal judges have completely dominated many of the hiring policies and personnel administration of State institutions in direct violation of the Tenth Amendment. Typical of this latest unlawful arrogance was the order of a Los Angeles Federal judge to force the Los Angeles Police Department to hire women on a quota basis as though the ERA had already been ratified and become enforceable law.

Unconstitutional Withholding of Land From the States

The founders made it very clear in the Constitution and the Northwest Ordinance of 1787 that all new states would enter the Union on an equal basis with the original 13 States. It was clearly stated that all land comprising federal territory was to be surrendered when it became a new state and the Federal government could only occupy territory within a state for “the erection of forts, magazines, arsenals, dock-yards, and other needful buildings (Article I, section 8). And even this had to be with the consent of the state legislature.

The Federal Government presently occupies about 40% of all state lands, most of it unconstitutionally. This is particularly true in the western states and Alaska where these states were strong-armed into surrendering vast regions to the Federal Government before they could be admitted. As a result, the Federal Government has taken over lands for the following purposes not authorized by the Constitution:

62. National Forests (State-managed forests are nearly always better supervised and have less forest fires than National Forests.)

63. National Parks (State-managed parks are nearly always better equipped and maintained than National Parks.)

64. Wilderness areas from which the States have been excluded for development, mining, and the procuring of natural resources.

65. Land coming under the Bureau of Land Management where cattle and sheep operators are being excluded in violation of their grazing rights.

Forces Wrecking World Stability and Fostering Predatory War

Ever since the close of World War I, the principal source of unrest, terrorism, violence and war throughout the world has been the collectivist and subversive order of international Communism together with its closely related (though sometimes competitive) allies, Nazism and Fascism.

Up until 1933 this threat was clearly recognized by the White House and State Department. They firmly refused to grant diplomatic recognition to the revolutionary Soviet regime.

However, an opposite policy was adopted in 1933 on the apparent assumption that somehow world peace would be fostered by incorporating the International Communist Movement into the community of peace-loving nations.

This irrational and disastrous concept has dominated American foreign policy from that day to this. Every available governmental pressure has been exercised both inside and outside the United States to make this policy viable in spite of nearly fifty years of tragic failure involving the slaughter of more human beings than in any previous period of history.

The Washington commitment to this philosophy is clearly evident in the decisions and policies of both the State Department and the Supreme Court. The role of the White House has been to set up the machinery and appoint “understanding” and carefully briefed office-holders who would carry out these fantastically expensive and politically catastrophic operations.

Washington Policies Which Contributed to the Tensions of 1980

Here are a few examples of many Washington policies which have clearly violated the interest of the United States, threatened world peace, and unmercifully exploited the American tax payer:

66. The State Department and White House deliberately built the Soviet Union into a great military super-power during World War II and tolerated continuous insults, false arrests and abusive mistreatment of Americans as well as the violation of scores of treaty agreements ever since. Economic and political pressures available to the U.S. to protect American interests have never been extensively or persistently employed.

67. They granted the Soviet Union long term loans to buy billions of dollars worth of American technology and supplies. Much of this was done in clear violation of the 1952 Battle Act which placed a ban on the sale of strategic materials to Russia. The Soviets used some of these resources to defeat the United States in the Russian supported war in Vietnam.

68. The White House and State Department negotiated a SALT agreement with the Soviet Union which obviously placed the United States in a secondary military defense position against an avowed enemy.

69. They cut off all military aid to the armed forces of the Republic of China under Chaing Kai Shek precisely at a time when it made the capture of China and 600,000,000 former U.S. allies an inevitable Communist victory. This disarming of 32 loyal Chinese divisions by order of the U.S. State Department changed the entire course of world history.

70. As far back as 1949, the State Department was trying to get Red China admitted to the United Nations, diplomatically recognized by the United States, and granted full trading privileges to build up her status as a world power. Public resistance was gradually worn down and twenty-five years later, all of these objectives had become an accomplished fact.

71. In 1958-59 both the State Department and the White House promoted Fidel Castro as the great new leader of democracy and constitutionalism for Cuba. They gave him a red-carpet welcome in Washington after he had ousted General Fulgencio Batista, a mild dictator compared to Castro and a strong supporter of U.S. policies. Intelligence agencies had warned the State Department that Castro was a Soviet agent.

72. It is now known that the State Department cooperated in the ouster of the elected president of Nicaragua to permit a Cuban-trained revolutionary force to seize control of that country in 1979.

73. The White House and State Department imposed hostile policies and sanctions against Rhodesia and sent over the U.S. ambassador to the U.N. to contact the radical marxist revolutionaries seeking the overthrow of the progressive and racially-balanced policies of Ian Smith. Even after Ian Smith turned over the government to Black moderates, the hostility continued until the most radical revolutionary element of Marxist opposition has been “elected” into power.

74. These same policies were followed after World War II in allowing one country after another in Eastern Europe to be betrayed into the hands of pro-Communist governments. The betrayal of Poland was so brazen that Ambassador Lane resigned. Communist leader, Marshall Tito, was supported in Yugoslavia by the State Department and he shortly executed the loyal friend of the U.S., General Drazha Mikailovich.

75. In 1975, the White House and State Department accepted the Helsinki Accord which permanently surrendered the “captive nations” in Eastern Europe to the Soviet Bloc.

76. In 1978, the White House and State Department used a completely unconstitutional device to turn over the Panama Canal to an unelected Communist dictator in Panama together with a promise to pay Panama. hundreds of millions of American tax dollars if Panama would take this valuable property off our hands.

77. The White House and State Department compelled 5 million American youth to fight a no-win war in Korea which resulted in 157,530 killed and wounded. This war was never formally authorized by Congress as required in the Constitution.

78. They engineered a similarly disastrous war in Vietnam which was also an “undeclared war” and fought on a no-win basis for ten years with approximately 225,000 killed or wounded. Korea and Vietnam were the only two wars in the history of the United States which were not allowed to be fought through to a prompt and victorious conclusion.

Impact of Many Supreme Court Cases

on the Security of the United States

Shortly after the White House and State Department policies began favoring the international Communist Movement, decision of the Supreme Court began moving in the same direction. This was a complete reversal of the Court’s previous posture and when Justice Jackson of the Supreme Court saw what his colleagues were doing, he used a dissenting opinion in the case of American Communications Association v. Douds (339 U.S. 382) to enumerate the characteristics of the Communist Party-USA which precludes it from being treated as a legitimate American political organization. He wrote:

A. “The goal of the Communist Party is to seize powers of government by and for a minority rather than to acquire power through the vote of a free electorate.

B. “The Communist Party alone among American parties past or present is dominated and controlled by a foreign government.

C. “Violent and undemocratic means are the calculated and indispensable methods to attain the Communist Party’s goal.

D. “The Communist Party has sought to gain this leverage and hold the American population by acquiring control of the labor movement.

E. “Every member of the Communist Party is an agent to execute the Communist program.”

But the majority of Justice Jackson’s colleagues gave little heed to his warning. They went right ahead dismantling the whole fabric of American security laws. Today the United States is exposed on nearly all fronts to Communist infiltration and propaganda. Here is what has been happening:

79. The Supreme Court reversed two lower courts and ruled that Communists or anyone else must be allowed to advocate the overthrow of the United States by force and violence right up to the time they start taking revolutionary action. Only then can they be stopped. 2

80. The Supreme Court ruled that teachers who are known Communists cannot be discharged unless it can be shown that they have tried to carry out some unlawful act. 3

81. When the Congress passed the Federal laws dealing with internal security, it was made very clear that this would not interfere in any way with the security laws already adopted by most of the States. However, in 1954, the Supreme Court arbitrarily ruled that State laws against subversion could not be enforced, because the Federal Government had preempted the field. 4

82. This was the beginning of Supreme Court decisions which not only made subversion the exclusive responsibility of the Federal Government but allowed a very restricted policy to be imposed on the FBI and other intelligence agencies. It was not long before agents of the Russian KGB could be seen all over Washington; some covert, others virtually operating in the open as Soviet lobbyists.

83. These policies also led to the totally incongruous situation where FBI agents were instructed by one Attorney General to investigate the Weathermen (avowed Marxist terrorists) as a threat to the internal security of the United States, while a subsequent Attorney General prosecuted the Agents for not limiting the investigation to methods used in routine criminal cases. (The law allows sophisticated technical devices to be used in cases of national security which are not employed in routine criminal cases.) The prosecution of these Agents is presently pending and has been extremely destructive to the morale of investigative agencies sincerely trying to do their job.

84. The Supreme Court ruled that a government employee cannot be discharged on the grounds that he is contributing to an organization advocating the violent overthrow of the government unless that person is in a “sensitive position.” 5

85. The Supreme Court ruled that Congress cannot inquire into or publicize Communism and subversion lest its activities constitute an “intrusion into the lives and affairs of private citizens.” 6

86. This expressed hostility of the Court toward congressional investigations of subversion was combined with strong pressure from the White House and State Department until Congress finally dissolved both the Internal Security Committee of the House and the Internal Security SubCommittee of the Senate.

87. The Supreme Court ruled that massive shipments of Communist propaganda pouring into the United States could not be intercepted by the Postmaster as required by an act of Congress, but must be delivered at the U.S. government’s expense, even though the publication had never been requested by the addressee. 7

88. The Supreme Court overturned an Act of Congress and ruled that known Communists must be allowed to function as officers or heads of labor unions. The Act was originally passed after the Communist labor leaders used their unions for political strikes designed to disrupt the national defense. 8

89. The Supreme Court overturned the law which was designed to restrict the travel of known Communists who wanted to receive instruction and funds from abroad. The Court ruled that they had to be granted passports. 9

90. The Supreme Court ruled that in a fitness hearing a lawyer seeking admission to the bar in order to practice law could not be asked by the State Board of Examiners concerning his membership in the Communist Party. 10

91. The Supreme Court shocked the whole nation when it ruled that the Communist Party did not have to register as a subversive organization even though it had been proven that the Party’s activities definitely fell within the purview of the Internal Security Act. The Court had previously ruled the Internal Security Act to be constitutionally valid. 11

Members of Congress from both parties became so disturbed by the flagrant and persistent left-wing bias of the Supreme Court, that a leading Democrat, Senator James O. Eastland of Missouri, raised a mighty voice of protest on the floor of the Senate May 2, 1962.

He expressed deep concern that since Chief Justice Earl Warren had ascended the high bench in 1953, he had heard 65 cases in which Communist or subversive activities had been brought before the Court, and that he had voted in favor of the Communist position 63 out of the 65 cases. He then furnished a tabulation of 104 cases between 1943 and 1961 with the following score for each of the current justices.

Name of Justice Cases Anti Pro Percent

Heard Red Red Red

Earl Warren 65 3 62 95%

Hugo L. Black 102 0 102 100%

Felix Frankfurter 103 34 69 67%

William O. Douglas 100 3 97 97%

Thomas C. Clark 82 61 21 27%

John M. Harlan 65 35 30 46%

William J. Brennan 51 2 49 96%

Charles E. Whittaker 42 30 12 29%

Potter Stewart 20 14 6 30%

No one was accusing any of these men with being Communists, but the majority of them had taken positions extremely favorable to the Communists most of the time.

Senator Eastland pointed out that none of the men sitting on the Supreme Court bench were professional judges prior to their appointments and only a few of them had been practicing lawyers for any extensive period of time. The rest were primarily politicians, and therefore strongly influenced by policies emanating from the White House and the State Department. Often their decisions had not followed the law nor the dictates of Congress, but the majority had twisted their decisions to fit the theories and policies emanating from the other end of Pennsylvania Avenue.

Unconstitutional Regulatory Agencies

Since the dictum of the Butler case in 1936 there has been a flood of regulatory agencies all justified on the basis that they are for the “general welfare.” None of these are under the twenty powers granted to the federal government.

The founders knew there would have to be agencies to regulate a variety of problems but they warned that these should be kept close to the people so abuses could be better controlled. Whenever these are passed on to the federal government abuses come from agencies which are too big, too powerful and too expensive to fight. That is why the people usually just endure them. Here are examples of agencies completely outside the powers delegated to the government by the Constitution.

92. The Environmental Protection Agency (EPA).

93. The Occupational Safety and Health Administration (OSHA).

94. The Federal Trade Commission.

95. The Interstate Commerce Commission which fixes rates and routes.

96. The Food and Drug Administration.

97. The fixing of program content by the Federal Communications Commission.

98. The Consumer Protection Agency.

99. The Federal Energy Commission.

100. The minimum wage law which largely destroyed the industrial base for traditional apprentice programs and excluded millions of American youth from securing employment while learning a trade.

Which Way America?

An examination of America as of 1980 reveals that Dr. Milton Friedman was entirely correct when he stated on his “Free to Choose” television series that the United States is rapidly moving into the final phases of a welfare state.

This means that principles which the founding fathers tried to make unconstitutional have been cleverly and surreptitiously introduced into the system under a distorted but legally enforceable framework. But Dr. Friedman emphasizes that these expensive socialist experiments have been a pragmatic failure. Further than that, they have made a shambles of the Constitutional principles originally comprising the great American success formula.

There is no bright hope for the future of the United States unless this generation of Americans has a fighting determination to take the high road back to the founders’ formula.

What Is the Remedy?

The remedy requires that Americans rediscover the genius of the founders’ original success formula and then elect the kind of men and women who will restore the formula. This can happen the moment the majority of the men and women in Congress realize that the original Constitutional and a free-market economy are the only way to go.

Part of the remedy could be adopted immediately, part of it set up on a long-range basis. Stabilizing the dollar with precious metal backing and deregulating business should be undertaken immediately. Then the phasing out of unconstitutional programs could follow just as soon as the private sector is able to begin absorbing the two or three million people who will be coming off the Federal and State payrolls.

What Would Happen to Taxes?

Within a short time the federal budget would be reduced by about 50% and that would make it possible to repeal the Sixteenth Amendment, thereby eliminating income taxes, Federal gift taxes and Federal inheritance taxes. Since these account for only about 40% of all Federal revenue, they would no longer be needed after the appropriate cuts in expenditures were made.

What About Social Security?

Another significant improvement would take place in the Social Security sector. This program would gradually be transferred over to the competitive private sector annuity program where people who retire would begin getting their money as a matter of right rather than having to show low-income need as they do now. These annuity funds from the employee and employer would be invested in American industrial development so they could grow and thereby give each person a substantial retirement benefit instead of the pittance people receive today which is not even a bare-subsistence level of income.

Are These Important Improvements Politically Feasible?

Anything is politically feasible if the people are sold on it. Today the trend is definitely in the direction of Constitutional principles. This is demonstrated in the voting records of those in Congress. There is a rising tide of conservative votes which means that the Constitutional coalition is coming closer and closer to a majority.

Congress is being monitored on Constitutional principles by several organizations and it is quite obvious we are gaining. This means that more and more Senators and Congressmen are willing to bite the bullet and vote on sound principles rather than bow to pressure politics.

For example, if we count Democrats and Republicans as Constitutionalists where they have voted for sound political and economic principles 70% of the time or more, then we need only 45 more Constitutionalists in the House to have a majority; 29 more would be required for a majority in the Senate.

If we include the fringe group such as all of those in the House who voted for sound principles 50% or more of the time, then our supporters would almost equal the number of liberals and big spenders on the other side. 14 more would be required in the Senate.

The Margin of Victory Is Closer Than Many Had Thought

This clearly indicates that all we need is just a little more weight to tip the scales toward a Constitutional majority. Then, by electing a strong vigorous Constitutionalist into the White House, America could soon get back onto the high road of a happy, debt-free, prosperous society.

America has demonstrated her capacity to do great things before. It is time we got on with the job. Americans could then be proud of the legacy they hand on to their children.

Just across the park from the Capitol building in Washington, D.C., is a distinctive structure of white marble with giant pillars on which is inscribed the words, “Equal Justice Under Law.” This is the Supreme Court of the United States of America.

Within the labyrinths of this majestic temple of justice, nine men pass judgment on everything from a petition on behalf of a mass-murderer incarcerated in Illinois to a writ of appeal involving billions of dollars in property rights, all of which hang precariously in the balance as the court ponders the application of certain legal technicalities.

Many Americans haven’t the faintest idea of the monumental impact which the solemn pronouncements of this court have on their daily lives.

The Court’s Unique Role as the “Guardian of the American Way”

The American life-style emerged from the aspirations of the early founding fathers to create a new kind of civilization. Beginning with a population of nearly four million human beings, they thought they could contrive a political structure which would provide order and justice but operate under such strict limitations that it could not trample on the freedom and natural rights of the people. The fact that it worked so well and eventually became a citadel of power and prosperity for over two hundred million people was primarily due to a unique political idea — the idea of dividing governmental services according to the function they best served. Never before had a nation deliberately fragmented its sovereign authority and set up a system of checks and balances designed to compel each branch of government to stay in its own back yard. This became known as “the American way.” As Thomas Jefferson said:

“The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to every one the functions he is competent to (perform)…. What has destroyed liberty and the rights of man in every government which has ever existed under the sun? The generalizing and concentrating all cares and powers into one body.”

It was recognized from the beginning that the genius of the American system depended almost entirely on strong local self-government and preventing a strong centralized authority from developing in Washington which would be too powerful to control. It was this danger which almost resulted in several of the States refusing to adopt the Constitution. To reassure them, James Madison, the so-called “father of the Constitution,” wrote:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former (the federal government) will be exercised principally on external objects, as war, peace, negotiations, and foreign commerce…. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.”

But who would act as the great arbiter or enforcement agency to see that each department of government stayed within its proper boundaries? This delicate and difficult task was assigned to the United States Supreme Court. The judiciary was to make certain that no man or combination of men with the ambitions of a Caesar rose up to seize power.

Thomas Jefferson Saw a Potential Danger

It did occur to Thomas Jefferson, however, that the Court, itself, might someday become the wife of Caesar and use its unique and powerful position of trust to gradually unify all political authority and destroy the very system of separation of powers between the States and the federal government which the highest court in the land was set up to preserve and protect. For nearly a hundred years very few people gave much credence to the warning of Jefferson because the Court functioned with admirable restraint for several generations. However, in this generation more and more Americans (certainly law enforcement officers) have had numerous occasions to recall Jefferson’s words written shortly before his death in 1821:

“It has long, however, been my opinion, and I have never shrunk from its expression … that the germ of dissolution of our federal government is in the constitution of the federal judiciary; an irresponsible body, (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.”

Structure of the Federal Judiciary

Even the founding fathers knew that the unprecedented role of the federal judiciary would have to be developed gradually on the basis of future experience. Consider, for example, the singular fact that never before in history had a legislative body allowed its acts to be reviewed by a court as to their constitutionality. Nevertheless, the notes on the Constitutional Convention reveal that this was contemplated by the founders long before Chief Justice Marshall announced this doctrine from the bench. There were also many other aspects of the federal judiciary which were experimental in nature and therefore the founders described this particular department of government in broad, general terms so that the details could be supplied by Congress as future circumstances dictated. Here is the simple language in the Constitution which refers to the federal judiciary:

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior Courts, shall hold their offices during good behavior, and shall at stated times, receive for their services a compensation which shall not be diminished during their continuance in office. (Article III, Sec. 1)

Several things should be noted in this provision. First of all, the Congress is authorized to organize as many inferior courts as may be necessary. At the present time there are 88 district courts in the 50 states as well as one each for the District of Columbia and Puerto Rico. Territorial courts have been provided for the Canal Zone, Guam, and the Virgin Islands. The United States and its territories have also been divided into 11 judicial circuits where there are courts of appeal so that the vast majority of appeals can be given final disposition at that level without burdening the Supreme Court with any but the most critical cases. In a typical year the Courts of Appeals will handle as many as 5,500 cases and approximately 200 cases are processed by the Supreme Court out of the 2,000 which are submitted. Many cases are also handled by “special courts” such as the Court of Military appeals, the Tax Court, the Court of Claims, the Court of Customs and Patent Appeals, as well as three quasi-judicial regulatory bodies — the Interstate Commerce Commission, the Federal Communications Commission, and the Federal Trade Commission.

It is interesting that the Constitution provides no qualification requirements for judges as it does for Senators, Congressmen and the President. One would expect that men of the most prestigious judicial experience would be the only ones considered for appointment to the highest tribunal of the land, but such has not been the case. In fact, as often as not it has been political stature rather than judicial expertise which has brought men to the bench of the Supreme Court. In spite of this risky procedure, however, some of the most brilliant minds to serve on the Supreme Court have been lawyers of political prominence who had no previous judicial experience. Studies show that of the 100 men who have served on the Supreme Court, 40 had no prior judicial experience. In fact, 6 of the 14 Chief Justices had no prior judicial experience.

Rewriting the Constitution by Judicial Interpretation

The Supreme Court has often been in the eye of the hurricane as far as past controversies have been concerned but never so frequently or so long as has been the case in this generation. Without either apology or explanation, the Supreme Court assigned itself a new role — rewriting the Constitution by judicial interpretation to facilitate what the Court considers to be desirable goals in the field of social welfare and social justice.

Scarcely anyone would disagree with the Court as to the aims to be achieved because they represent many of the long-range aspirations of the entire human race. The objection grows out of the fact that the Court became impatient with the normal procedure of gradually working out social and economic problems by the people themselves acting through their legislatures and took upon itself the task of using its power and prestige to force upon the people the will of the majority of the court whether society was in agreement or not. Already it can be demonstrated that many of these “social justice” or “individual rights” cases have done more harm than good and actually delayed the realization of the goals the Court claimed to be seeking. A detailed analysis of many of these cases has been carefully documented in a book called The Warren Revolution by L. Brent Bozell.

The Supreme Court Has Created Three Major Problems In Its New Role

Even if one agrees with the effort of the Court to enter the field of social welfare and social justice, it has to be admitted that several serious problems have emerged as a direct result of this new power thrust which the Supreme Court has employed during the past several decades.

First of all, it has become entirely evident that in many of its most provocative decisions the majority of the Court has abandoned well-established legal and Constitutional principles in order to accommodate the private desires or individual philosophies of those writing the majority opinions. This trend toward government by men rather than by law has made the law on both the federal and State level far less certain than it was in the past. There have been numerous reversals of earlier Supreme Court decisions, completely new and revolutionary interpretations of important provisions of the Constitution, and frequent disregard of judicial precedent and the writings of the founders as to their intent in setting up the national charter. A Constitutional lawyer, Lyman A. Garber, comments extensively on this entire problem in his book, Of Men, and Not of the Law.

A second problem emerging from the reinterpretation and restructuring of many Constitutional principles has been the rapid centralization of power in the federal government at the expense of the States and the individual citizen. Frequently ignoring both the Ninth and Tenth Amendments which undergird the whole concept of “limited government,” the Court has gone ahead to authorize the intervention of the federal government in the private lives of Americans to an alarming extent. Federal authority has been penetrating the exclusively non-federal areas of education, welfare, housing, local streets and highways, health and safety standards, metro government, subsidized industries, small business subsidies, police services, land use and land development, local labor-management problems, to mention only a few. Much of this became possible when the Court authorized Congress to disregard the limitations of the Constitution for the expenditure of funds and treat the welfare clause as a special grant of power to appropriate money for practically any purpose which was deemed to be in the general interest of the people. With all of these new subsidies came new federal controls. As the Court was quick to point out in Wickard v. Filburn, it is the prerogative of the federal government to “regulate that which it subsidizes.”

The third problem arising out of all of this is the discovery that there is no satisfactory check on the Supreme Court by the Congress, the President or the federated States unless they want to go through the complicated process of a Constitutional amendment to correct each error. In earlier years when the Supreme Court operated with greater restraint, this defect was not so apparent, although theoretically it was recognized by some when the Constitution was written and by others soon afterwards. We have already noted Jefferson’s anxiety. Here is another of the same period who signed his name in the press as Brutus and is believed to have been Robert Yates of New York. He wrote:

“It is of great importance to examine with care the nature and extent of the judicial power, because those who are to be rendered totally independent, both of the people and the legislature, both with respect to their offices and salaries. No errors they commit can be corrected…. The only causes for which they can be displaced (are) convictions of treason, bribery, and high crimes and misdemeanors…. The power of the judicial will enable them to mold the government into almost any shape they please.”

It is this writer’s opinion that eventually the American people will insist upon a Constitutional amendment to remedy this situation. Certainly it was never intended by the founders that this branch of the government should elevate itself to a point where “judicial review” became “judicial tyranny.” For the sake of the Court itself there needs to be some sort of remedy available when that high tribunal gets so completely out of touch with the people and their desires that it tries to violate the Constitution with impunity and enforce its arbitrary will on the whole nation. A possible solution would be to authorize the decisions of the court to be overturned by a two-thirds majority of the House and the Senate or by resolutions from three-fourths of the State legislatures. Had there been such an amendment in the past, it is unlikely that the Court would have ventured into the deep and dangerous waters where it has been boldly cruising during the past forty years.

Conclusion

Thus we come to the last of the articles in this series. It has been our purpose to examine the roots of the American heritage and the genius of those who created the first free people in modern times. It has also been our purpose to make a modest attempt to point out some of the dangers associated with the trends which seem to be engulfing the nation in many of those very situations about which the founders gave their descendants fair warning. Americans have enjoyed a glorious period of 200 years of independence, prosperity, and power. Wisdom would dictate that the same principles which made the United States such a success in the past would be worth preserving and practicing in the future. The stakes for law enforcement in the outcome of the ideological battles of the future are high. Who will doubt the validity of a recent comment by one of the most respected chiefs of police in the country when he said that the complexities and difficulties of law enforcement have doubled in the past twenty years?

Too often the Constitutional aberrations in which the courts have indulged themselves during recent years have operated to the unilateral advantage of the criminal without adequate regard for the welfare and security of society. Highly technical decisions have released from prison or prevented the prosecution of thousands of vicious criminals who were positively known to be guilty. For much of this, the police have been blamed.

Every law enforcement officer should become a thorough student of the original philosophy undergirding the United States Constitution. We should become avowed advocates of the restoration of those principles which will give us government under law rather than men. We should stand for the original institutes of freedom designed to provide peace for each person’s life, liberty and property. On the local and State level we should resist the lure of federal money with its federal controls. We should strive for professional independence to the greatest possible extent and serve the people without interference from politicians or intimidation by the press. Law enforcement as a profession has a great task before it, and the whole basic foundation for our ultimate success will depend on whether or not we are able to preserve the Constitution of the United States.

The American founding fathers would be shocked and angry if they knew how the law-making process had been altered in the past 200 years. In fact, most Americans would be amazed to discover that some of their most cherished elements in the Constitution have been rendered virtually meaningless by a gradual erosion of principles which have decayed at a sharply accelerated rate in recent years.

Nothing more dramatically demonstrates what has been happening than the power to make laws which the Constitution gave exclusively to Congress. Under Article I, Section 1, we read:

All legislative (law-making) powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and House of Representatives.

Note that there is no provision whatever for the Supreme Court to hand down rulings which constitute new regulations or rules of personal conduct. There is no provision for the President to issue executive orders which constitute new laws. Nothing is said about administrative bodies proclaiming regulations which fix prices, control business operations and deeply affect the relations of individuals in conducting their private affairs. And most certainly there is no provision for a vast conglomerate of governmental regulatory agencies issuing whole encyclopedia sets of highly complex regulations which threaten heavy fines and imprisonment for violators.

Yet all of these things are now a part of America’s Bi-Centennial life-style and one cannot help wondering how it all came about. The answer is that we are deliberately abandoning the principles of a republic.

Why Do They Call the U.S. a “Dwindling” Republic?

There was one thing the founding fathers had over their modern descendants — they knew their history. As a result, they structured a Constitution which had a built-in capacity to endure on the long-haul providing future generations of Americans had the good sense to keep its principles in their historical perspective. This is what Benjamin Franklin meant when he was asked by a woman what the Constitutional Convention had provided for the people, and he replied: “A Republic, if you can keep it!”

Webster’s Dictionary defines a republic as “a state or nation in which the supreme power rests in all the citizens entitled to vote and is exercised by representatives Elected directly or indirectly by them and Responsible to them.” Therefore, anytime the people begin to find themselves governed by those whom they did not elect and find their affairs regulated by officials who are not responsible to them, their form of government has ceased to be a genuine republic. This is particularly true where the non-elected administrators of government are writing their own rules and provisions designed to give them the legal basis for the regulations by which they impose their will upon the people.

Already Americans are beginning to feel the oppressive weight of this heavy-handed bureaucracy. Every week the mails to Congress are burdened with vehement complaints which in many cases are similar to those charged against King George III. Like this one: “He has erected a multitude of new offices, and sent hither swarms of officers to harass our people, and eat out their substance.”

Early Americans had one word to describe their complaints: “Tyranny!”

The Founders’ Formula for the Prevention of Tyranny

Every school child knows that the framers of the American Constitution relied upon two basic principles to avoid future governmental tyranny. One was called the “separation of powers,” and the other was called, “checks and balances.” But what these same school children are not taught and most of their parents have never suspected is that both principles have been largely abandoned.

As Professor Kenneth Culp Davis states in his text on Administrative Law, “In our theoretical discussions we should frankly recognize that we have abandoned the basic idea that executive, legislative, and judicial power should be separated from each other in order to protect us against tyranny.” 1

In other words, we have deliberately combined these three functions in administrative agencies and we are getting exactly what James Madison and the other founders warned us against:

“The accumulation of all powers, legislative, executive, and judiciary, in the same hands whether of one, a few, or many, and whether hereditary, self-appointed, or elected, may just pronounce the very definition of tyranny.” 2

Of course, the abandonment of separation of powers also meant the abandonment of checks and balances in those same areas. That is why the Constitutional safeguards against abuse by governmental agencies is not functioning as it should. That is also the major reason why Americans are spending tens of millions fighting the governments in the courts and writing millions of letters to Congress each year pleading for relief.

Congress Never Should Have Delegated Its Law-Making Powers

When the founding fathers granted power to Congress to make all the laws which they knew would become the supreme law of the land, they never authorized nor intended that Congress would delegate that power. Certainly they would have been alarmed if they had known that this power would be delegated to non-elected administrators in the executive branch of government. That is precisely what Parliament and King George did to provoke the Revolutionary War.

Since the sovereign authority of government is in the people and the people have placed the power in Congress to make laws, that power must not be handed over to strangers whom the people did not elect and who are not directly responsible to the people nor removable by the people.

John Locke put it this way, “The legislative (branch) neither must nor can (it) transfer the power of making laws to anybody else, or place it anywhere but where the people have.” 3

Since sovereign authority to govern is originated in the people themselves, the Congress serves as an agent of the people. Under the law of agency, an agent cannot delegate the performance of a duty which is uniquely attached to the agent’s own special qualities or capabilities and therefore involves a relationship of special trust bestowed upon the agent by his principal. An artist who had contracted to paint a portrait would be an example. The agency relationship between the Congress and the people is similar. The Supreme Court has stated this principle time and again: “That Congress cannot delegate legislative power to the president is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.” 4

Nevertheless, in spite of this fixed position in principle, the Court has gradually made exceptions until the whole concept has ceased to have meaning.

How the Law-Making Powers Began Drifting

In 1813 the Supreme Court sustained Congress in passing an act which allowed the President to fix the time when the law would go into effect if certain conditions were found to exist. 5

In 1912 the Supreme Court sustained an act which authorized the President to negotiate a commercial agreement with foreign governments and fix tariff rates at whatever level the President felt was best for the country. 6 Note that this allowed the President to establish tariff rates without any further approval or guidance from Congress, and his executive order had the force of law upon the American people seeking to import goods from abroad.

An even wider latitude was granted the President when the Supreme Court approved a case in 1928 which turned on whether or not the Congress could delegate to the President the task of determining the cost of production in certain foreign countries as compared to the United States and then raising or lowering the tariff rates at his discretion. 7 The court went a long way in opening up the dikes by asserting that Congress was simply securing the “assistance” of the Executive Branch “according to common sense and the inherent necessities” of the case.

In 1935 the court ruled in the Panama and Schecter cases that the Congress had gone too far in its delegation of law-making power, but the very next year it held in the Curtiss-Wright Export Case that in foreign affairs, at least, the President had the inherent authority to prohibit the sale of arms to belligerents and impose criminal penalties on violators whether the Constitution had provided for it or not. 8 This gave foundation for the wide-open decision which sustained the 1970 Lend-Lease Act giving the President “a carte blanche authority to furnish military supplies to the Allies at his own discretion.” 9

By 1970 the pattern of having Congress simply “point the way” and then allow the Executive branch to write the actual regulations had become so routine that a Democratic Congress turned over to a Republican President the power to set up price controls and virtually manacle American commerce under the so-called Economic Stabilization Act. S.H. Friedelbaum comments on this reckless and unprecedented delegation of law-making power: “… the 1970 legislation contains no declaration of purpose other than the cryptic title designation, cost of living stabilization. The standards supplied, if anything, are more vague than those found in the wartime statute. Congress in 1970 authorized the president to issue orders and regulations as he may deem appropriate in order to provide for the making of such adjustment as may be necessary to prevent gross inequities. No administrative agency is designed or created. Instead the president is permitted to delegate the performance of any function under the act to any federal department or agency ‘as he may deem appropriate’.” 10

This act constituted the high water mark of unconstitutional delegation of law-making power in the United States. In addition, it seemed to create a climate of total resignation by both the public and the Congress that this unfortunate trend is the wave of the future. Actually the wave has been rising rapidly during the past three decades and this is vividly demonstrated in a brief review of not only the surrender of law-making power by the Congress to the President but by the equally serious usurpation of authority by the Presidential office in issuing “Executive Orders.”

The History of Presidential Executive Orders

The issuing of executive orders by the President has gone through three stages. The first stage was entirely Constitutional. It consisted of orders to the various departments of government outlining the means by which acts of Congress would be carried out. During this stage the executive orders were designed to implement and enforce the law, not make new law.

The second stage involved executive orders which began to assert elements of power over the nation at large and not merely the departments of government. Presidents Cleveland, McKinley and Theodore Roosevelt all participated in flexing their administrative muscles by issuing executive orders. Cleveland issued 71, McKinley 51, and Theodore Roosevelt 1006! Teddy Roosevelt had a “strong President” interpretation of his Constitutional prerogatives. Instead of limiting his activities to the “enumerated powers” he decided he had the power to do anything not specifically forbidden by the Constitution. He said later: “Under this interpretation of Executive power I did and caused to be done many things not previously done by the President and the heads of the Departments. I did not usurp powers, but I did greatly broaden the use of Executive power.” 11

This, then, set the stage for the explosion of executive orders which President Wilson employed during World War I. Based on “implied authority” under the war powers provisions of the Constitution, he used executive orders to set up the Food Administration, the Grain Corporation, the War Trade Board, and the Committee on Public Information without their being specifically or individually authorized by Congress.

The third stage came with another upsurge of executive orders during the great depression and World War II. In a sense this was an extension of the second stage but it was characterized by such a volume of executive orders that it is officially referred to as the “New Deal Stage.” Executive Orders became so numerous that Congress passed the Federal Register Act in 1935 which required the publication of all Executive Orders in the Federal Register and their subsequent filing with the U.S. Archives. The State Department previously had custody of these orders and began numbering all they could find from 1907 on. However, it is estimated that the unnumbered orders lying in government files may be as many as 15,000. To gain some idea of the quantity of orders being poured out on the public as well as governmental agencies, the official count of registered Executive Orders by 1974 had reached 11,766. 12

From the standpoint of the founding fathers, both stage two and stage three of this historical development were unconstitutional and in direct violation of the provision that “All legislative powers herein granted shall be vested in a Congress of the United States….” It will be recalled that in 1928 the Supreme Court justified the delegation of law-making power from the Congress to the President on the ground that it was “according to common sense and the inherent necessities” of the case. 13 It has been in this same spirit that Presidential Executive Orders have been tolerated with very little resistance.

As the nation moved away from the fundamental precepts of a republic and turned more and more to centralized government just as socialist countries have done all over the world, the inflation of power in the Executive branch has expanded tremendously at the expense of the Congress and the individual states. No doubt this trend will continue until the majority of the people realize that Blackstone was right when he said: “In all tyrannical governments … the right both of making and enforcing the laws is vested in one and the same man, or one and the same body of men; and wherever these two bodies are united together, there is no public liberty.” 14

The Constitutional Remedy

Fortunately, there is a Constitutional solution to the problem when the majority of the people have finally decided that enough is enough. It simply consists of electing a body of men and women to the United States Congress who are dedicated and committed to restoring the fundamental principles of government enunciated by the founders in the original Constitution. Such a Congress would begin phasing out the ominous cloud of regulatory agencies with their stacks of self-serving rules and debilitating, freedom-destroying mandates. Such a Congress would seek to restore fiscal responsibility and refuse to spend any more of the next generation’s inheritance. That future Congress will no doubt return to the States and local governments the conglomerate of social and economic responsibilities which it found impossible to carry out from Washington successfully. Such action will greatly simplify the pattern of government on the federal level, reduce the burden of federal taxes, and invigorate the whole structure of American industry and enterprise.

Some may doubt that such a reversal is possible, but time is the great political physician. History says the change will come. The American temperament was not designed to endure political aggrandizement or authoritarian bureaucracy for long.