Above: SCOTUS in 1942—possibly the weakest Supreme Court ever. Left to right (including both rows): Reed, Byrnes, Roberts, Douglas, Stone (C.J.), Murphy, Black, Jackson, Frankfurter. None had any significant judicial experience before being appointed to the highest tribunal in the nation.

The Epoch Times published this seven-part series from January 17 to February 4, 2022. It explains a central event in the conversion of the federal government from the relatively small version created by the Constitution to the dysfunctional, overreaching “monster state” of today: the refusal, by a packed and unprincipled Supreme Court, to enforce constitutional limits on federal politicians.

Each installment was posted to this website. But to make the series easier to read, it is combined and reproduced here. Because the entire series is now in one place, transitional material between installments has become unnecessary and it has been removed.

 

Part I: A Government Small and Frugal

The Constitution created a relatively small federal government, with powers limited to certain listed subjects. It was a frugal institution, designed to “preserve the blessings of Liberty” and to bring out the best in human beings.

So how did it happen that federal functionaries now regulate nearly every aspect of our lives? How did a government designed to protect freedom become arbitrary and authoritarian? When did it start to incentivize bad behavior, both among officials and the people at large? Why does it run deficits every year, and why do those deficits keep getting bigger?

Major changes always have multiple causes. This series focuses on a central cause—perhaps the central cause: the conscious abdication of responsibility by a handful of Supreme Court justices, primarily between the years 1937 and 1944.

The change occurred against the backdrop of economic depression and world war. But America previously had undergone similar crises without altering her form of government. This time the outcome was different, largely because the Supreme Court refused to defend the Constitution.

As many scholars have recognized, the justices’ dereliction of duty essentially amended the Constitution without following amendment procedures. Other than the nine justices, no one voted on this change. The most that can be said is that people voted for candidates, some of whom sought the change. The crises of economic depression and world war probably would have induced Americans to support some constitutional alterations if they had been asked. But we will never know what they would have supported, because they never were asked.

During this period, Americans became less secure in their right to govern themselves locally. They lost their incomes and the freedom to pursue their livelihoods. Thousands were imprisoned without habeas corpus or trial by jury, and at least one was secretly executed.

Eventually, the court began to correct itself. Some justices recognized they had gone too far. But the fundamental damage had been done: Much of the original Constitution was lost and has never been recovered.

This series of essays explains how that happened.

A Limited Federal Government in a Free America

My father was born in 1911 and grew up in the slums of Brooklyn, New York. When he was a teenager during the years following World War I, the federal government was recognizably the same institution it had been after the Bill of Rights was ratified in 1791.

Yes, there had been some changes. Slavery was gone, and the Thirteenth, Fourteenth, and Fifteenth amendments had given Congress power to protect minorities. The Sixteenth Amendment facilitated a small income tax that affected only a few. The Seventeenth allowed the people to elect U.S. senators directly, and the Nineteenth assured women the right to vote. But as I have pointed out in previous essays, these changes didn’t have the revolutionary effects some people claim for them. There also was a new Federal Reserve System, but that was just a national bank, and we’d had national banks from time to time from the founding of the republic.

A more important change was Prohibition, authorized by the Eighteenth Amendment. Every second man in my father’s Jewish community had become a “rabbi”—the better to obtain sacramental wine. (Other religious communities had similar dodges.) But Prohibition was doomed and was soon gone.

In other respects, the federal government was as it always had been: It produced the currency. It ran the post office, the patent office, and the military. But to most people, most of the time, it was unfelt and unseen.

Peacetime federal spending averaged well under 5 percent of Gross Domestic Product. Peacetime budgets usually were balanced or in surplus. Schools and nearly all other institutions were controlled and funded by localities and states. There were no massive federal entitlement or welfare programs. But the poor and disabled didn’t die in the streets: State and local governments maintained a social safety net, supplemented by a web of religious congregations, private charities, and mutual benefit societies.

Today, we hear much about wrongs imposed on minorities. For most people, however, most of the time, the decentralized American system worked extraordinarily well. Decentralization tends to foster innovation, prosperity, and growth. Our decentralized nation had enjoyed innovation, prosperity, and growth as no country ever had. That’s why so many immigrants—including all four of my grandparents—left their homelands to come here. Being part of a despised ethnic minority in America was better than mainstream life almost anywhere else.

Defending Limited Government

During the first 140 years after the American Founding, two institutions helped to keep the federal sphere small and the sphere of individual freedom large. One was the U.S. Constitution. It restricted federal powers to those enumerated (listed) in the document. The other was the Supreme Court.

The American Founders respected the professionalism and independence of the English judiciary, and they expected American judges to meet the same standards. One job American judges would have was judicial review—refusing to enforce government actions in excess of constitutional authority.

The principle of judicial review had been established at the state level before the Constitution was written. Leading Founders explained that it would apply at the federal level as well. Among them were Alexander Hamilton (in “The Federalist” Nos. 16, 78, and 81) and a young Virginia lawyer named John Marshall, speaking at his state’s ratifying convention.

In 1803, Marshall, then chief justice, wrote for a unanimous court in Marbury v. Madison, which voided part of a federal law as unconstitutional. Sixteen years later, Marshall again wrote for a unanimous court, this time in McCulloch v. Maryland:

“Should Congress, in the execution of its powers, adopt measures that are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted [sic] to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say, that such an act was not the law of the land.”

In subsequent years, the Supreme Court sometimes made mistakes. But its interventions were frequent enough and proper enough to keep the federal government limited. During the 1930s and 1940s, this was to change.

 

Part II: The Stage is Set

Crisis and Depression

In October 1929, a financial bubble broke. As always happens when financial bubbles break, people lost a great deal and hardship ensued. But bubbles had been breaking for centuries. Wise people knew that in financial panics most government intervention does more harm than good. They had learned that the best solution was for government to assist private charity in relieving the destitute, but otherwise allow the economy to reorganize and recover naturally.

However, most people aren’t wise. In times of hardship, they insist that government “do something.” Officeholders respond according to a classic political syllogism:

We must do something!

This is “something.”

Therefore, we must do this!

Unfortunately, “this” almost always exacerbates the damage or, at best, comes too late to be of much (or any) benefit.

There’s a common belief that President Herbert Hoover did relatively little to respond to the Depression but that President Franklin D. Roosevelt’s bold action largely cured it. This is untrue.

Hoover approved a steep tariff to protect American producers and the Federal Reserve tightened credit. He also approved massive federal spending. Conditions kept getting worse, and in 1932 Roosevelt defeated Hoover’s bid for re-election.

As a candidate, Roosevelt had campaigned against Hoover’s profligacy, but once elected he spent even more. His “New Deal” featured huge expenditures on work projects, some of real value but many wasteful. Roosevelt manipulated the currency, adopting contradictory policies. Rather than allowing prices to drop to the point where the market would clear, he tried to raise prices by curbing business competition. New Deal programs destroyed “surplus” agricultural goods while many around the world were starving.

Far from curing the Depression, the Hoover and Roosevelt policies aggravated it. The stock market crash of 1929 should have triggered only a sharp but short recession. Under federal mismanagement, it initiated the Great Depression. A halting recovery stalled in 1937, and the economy collapsed again. Living standards remained low until economic restrictions were lifted after World War II.

This was not the first time federal politicians had responded to bubble-breakage with bubble-headed ideas. But before the 1930s, their limited constitutional powers curbed their ability to wreak havoc. Beginning in the 1930s, the Supreme Court allowed them to wreak havoc unimpeded. 

The Supreme Court in 1934

In 1934, as now, the Supreme Court comprised nine justices. The Chief Justice was Charles Evans Hughes.

Hughes was one of America’s most respected statesmen. He had served as governor of New York, then as an associate justice on the Supreme Court. He resigned from the court to accept the Republican nomination for president in 1916, losing narrowly to Woodrow Wilson. He served as Secretary of State in the Harding–Coolidge administration (1921–25) and then returned to the private practice of law. In 1930, Hoover sent him back to the court as Chief Justice.

In those days, many Republicans were of the progressive Theodore Roosevelt-variety. When governor of New York, Hughes proved himself a progressive. By the 1930s and 1940s, progressives were calling themselves “liberals,” so we shall use both terms.

Associate Justice Owen Roberts, another Republican Hoover appointee, was a fluctuating vote, somewhat like our present Chief Justice John Roberts. Overall, however, Owen Roberts moved left over time.

Commentators frequently divide the other seven justices into two camps. The names they apply to the two camps reflect the liberal bias of the “chattering classes.” They call the three most progressive justices “The Three Musketeers”—a name suggesting a jolly set of fellows. The Three Musketeers were Louis Brandeis (nominated by Wilson), Benjamin Cardozo (by Hoover), and Harlan F. Stone (by Calvin Coolidge). Brandeis and Cardozo were the court’s first Jewish members. All three are much admired among academics.

The remaining four justices were more conservative. Liberal commentators call them the “The Four Horsemen,” a phrase suggesting apocalyptic disaster. One of the four, however, compiled a mixed rather than a purely conservative record. George Sutherland (nominated by Warren G. Harding) had a progressive background, and in 1923, he authored a decision making it difficult to challenge the constitutionality of federal spending programs (pdf). In 1936, he wrote an opinion claiming the federal government could exercise foreign policy powers beyond those authorized by the Constitution (pdf). In 1937, he joined a Cardozo opinion lifting almost all constitutional restraints on federal spending (pdf).

The other three Horsemen were James McReynolds, a Democrat and nasty anti-Semite who had been nominated by Wilson; Pierce Butler, a Democrat nominated by the Republican Harding; and Willis Van Devanter, a Republican nominated by Republican William Howard Taft.

McReynolds, Butler, and Van Devanter were the last conservative activists to serve on the Supreme Court. By “conservative activist,” I mean a judge willing to manipulate the Constitution to achieve conservative political goals. As I have explained elsewhere, there are no conservative activists on the present bench, although there are three liberal activists.

In sum, the 1934 Supreme Court contained three conservative activists (McReynolds, Butler, and Van Devanter), two justices with mixed tendencies (Sutherland and Roberts), a moderate liberal (Hughes), and three staunch liberals (Stone, Brandeis, and Cardozo).

The Liberal/Progressive Philosophy

The liberals of the 1930s didn’t display the quasi-totalitarianism that mars the current “progressive” crowd. However, they did believe in a centralized “scientific” government by experts. That belief put them in tension with American constitutional principles of limited government and judicial neutrality.

In 1934, the court decided Home Building & Loan Assn. v. Blaisdell (pdf). In that case, the court weakened (at least temporarily) the Constitution’s ban on state laws impairing “the Obligation of Contracts” (Article I, Section 10, Clause 1). The vote was 5–4.

In his majority opinion, Chief Justice Hughes used the occasion to outline liberal/progressive attitudes toward government and the Constitution. Here is an excerpt:

“[T]here has been a growing appreciation of public needs and of the necessity of finding ground for a rational compromise between individual rights and public welfare. The … pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved and that those of the state itself were touched only remotely, it has later been found that the fundamental interests of the state are directly affected. . . .

“If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: “We must never forget, that it is a Constitution we are expounding. . . . ”

What Hughes was saying was:

• Government must balance individual rights against the general welfare.
• Life is a lot more complicated and interrelated than formerly. Only the government can untangle this complexity.
• The Founders’ understanding doesn’t bind our interpretation of the Constitution. The claim that it does “carries its own refutation.”
• Traditional constitutional interpretations are “narrow.” (Progressives also called them “mechanical” and “formalistic.”)
• Chief Justice John Marshall’s views justify progressive re-interpretations.

Of course, all those ideas are subject to intelligent challenge.

One last point: Hughes badly misrepresented the views of Chief Justice Marshall. When Marshall wrote, “We must never forget, that it is a Constitution we are expounding,” he was not saying a judge should ignore the Constitution’s original meaning. He was explaining how to use a common rule of interpretation to find the Constitution’s original meaning.

Later installments in this series explain how the court’s progressives continued to misrepresent Marshall when they dismantled constitutional restraints on federal power. The misrepresentation of Chief Justice Marshall continues among liberal academics even today (pdf).

 

Part III: The Court on the Brink

1934–1937: The Court’s Balancing Act

There’s a common myth that President Franklin D. Roosevelt proposed his 1937 court packing plan because SCOTUS struck down all his New Deal programs. The truth was that the court often sustained his programs. What annoyed FDR was that the court refused to rubber-stamp all of them.

One New Deal victory—in fact, a triple victory—came in the Gold Clause Cases (pdf) (pdf) (pdf), decided on Feb. 18, 1935. Congress and the president had (1) devalued the dollar relative to gold, (2) repudiated federal promises to repay debts in gold, substituting paper money instead, and (3) banned private contract terms requiring payment in gold. The idea was to provoke inflation.

This financial manipulation didn’t help the economy much (if at all). A primary effect was to benefit corporations issuing gold bonds at the expense of retirees and annuitants, who relied on bonds for household income.

Although the government’s measures were foolish and cruel, they weren’t unconstitutional. The Constitution’s Coinage Clause (Article I, Section 8, Clause 5) grants the federal government very broad power to manipulate the currency (pdf). The court got some of its reasoning wrong, but its result—upholding the government’s actions—was constitutionally correct. Hughes’s 5–4 majority opinion did make it clear, however, that it would be unconstitutional for the government to repudiate its obligations entirely.

The New Dealers lost the next round. Their National Industrial Recovery Act (NIRA) empowered the president to license companies to impose anti-competitive “codes” governing their respective industries. The NIRA was based largely on an Italian fascist model adopted by Benito Mussolini, a character then admired by many American progressives.

On May 27, 1935, the justices unanimously struck down the NIRA. The case was A.L.A. Schechter Poultry Corp. v. United States (pdf). Writing for his colleagues, Hughes concluded that the NIRA exceeded the congressional power to regulate interstate commerce. Further, the NIRA delegated power to the president without necessary guidelines.

United States v. Butler (pdf), issued on Jan. 6, 1936, was a mixed result for the Roosevelt administration. At issue was the constitutionality of a New Deal farm subsidy program. The 6–3 decision, composed by Justice Owen Roberts, had two principal sections. The first said that the Constitution’s Taxation Clause (Article I, Section 8, Clause 1) granted Congress almost unlimited authority to spend for “the general welfare.” The second section contained the actual decision of the court: The farm subsidy program violated the Tenth Amendment and was therefore unconstitutional.

The first section was very poorly researched. Roberts examined contradictory statements by only two Founders, James Madison and Alexander Hamilton. He accepted Hamilton’s version. But he failed to note that Hamilton’s version, issued for political convenience after the Constitution was ratified, was inconsistent with public representations Hamilton had made before the Constitution was ratified (pdf). It also was inconsistent with the views of just about every other Founder: The Constitution certainly didn’t grant Congress unbridled authority to spend money for “the general Welfare” (pdf).

The conclusion of the court in the second section didn’t follow from the first. The Tenth Amendment says that powers not granted to the federal government are reserved to the states and the people. But if, as the first section claimed, the Constitution grants Congress power to spend whatever it wants, then the farm subsidy program was within Congress’s delegated powers and the Tenth Amendment didn’t apply.

Butler cost the New Deal a farm program. On the other hand, the administration was to make profitable use of the court’s “general welfare” language.

May 18, 1936, witnessed the court’s fractured decision in Carter v. Carter Coal Company (pdf). The court addressed Congress’s power “to regulate Commerce … among the several States” (Article I, Section 8, Clause 3). The majority ruled that this power wasn’t broad enough to permit Congress to control coal production. George Sutherland, writing for a five-justice majority, correctly pointed out that production isn’t included in the Constitution’s meaning of “Commerce.” Regulating production is the states’ job.

Balancing defeat in Carter Coal was FDR’s victory in United States v. Curtiss-Wright Export Corporation (pdf), decided on Dec. 21, 1936. Sutherland’s unanimous opinion ruled that when the president conducts foreign affairs, he’s not limited to the powers the Constitution grants him. The president has additional authority inherited from the 1775–1789 Continental and Confederation Congresses.

Sutherland’s rationale is called the doctrine of “inherent sovereign authority.” It had been kicking around since the Founding. The Tenth Amendment was designed to kill it, as the court itself realized a few decades earlier (pdf). That didn’t seem to bother any of the justices in 1936, though.

They concluded their balancing act with National Labor Relations Board v. Jones & Laughlin Steel Corporation (pdf), issued on April 12, 1937. The issue in the case was whether Congress’s power to regulate interstate commerce is wide enough to allow Congress to regulate labor relations in a huge interstate corporation.

Hughes, writing for a 5–4 majority, said “yes.” He admitted that labor relations are part of production rather than of commerce. But he said labor unrest in a giant interstate firm could cause serious disruption to interstate commerce. The Commerce Clause, he said, gave Congress power to guard against this kind of disruption.

Writers on constitutional law almost always overlook three crucial aspects of the Jones & Laughlin case. The first is that it was a compromise: Hughes’s opinion allowed Congress to regulate labor relations in large, interstate companies but not in smaller, intrastate companies. Second, careful reading of the opinion shows that it relied more on the Constitution’s Necessary and Proper Clause (Article I, Section 8, Clause 18) than on the Commerce Clause. Third, Hughes’s opinion misapplied the Necessary and Proper Clause. I’ll explain all of this in the fifth installment of this series.

1937: The Court Destroys Restraints on Taxing and Spending

The balancing act ended a month after the Jones & Laughlin case, with the announcement of conservative Justice Willis Van Devanter that he was retiring.

Recall that in United States v. Butler (pdf) the court said that Congress could spent money on any program it wished for the general welfare. Because that wasn’t part of the court’s actual decision—and technically contradicted it—no reputable lawyer would consider those comments to be binding precedent.

Yet in Helvering v. Davis (pdf), issued on May 24, 1937, Justice Benjamin Cardozo treated those comments as precedent. He announced that Congress’s power to spend for any general welfare purpose was “now settled by decision.” He added that any reasonable doubts as to whether a spending program furthered the general welfare would be left to Congress. Only two justices dissented: James McReynolds and Pierce Butler. Sutherland returned to his progressive roots by joining the majority.

Cardozo also wrote the opinion in Steward Machine Co. v. Davis (pdf), issued the same day as Helvering. The Constitution requires that “direct taxes” be allocated (“apportioned”) among the states by population. Steward Machine upheld a direct Social Security tax on employers’ use of labor. Congress hadn’t bothered to apportion it.

Cardozo pretended the levy was an “excise” and therefore indirect. In fact, an “excise” is a tax on consumption, not on the use of labor. Cardozo disregarded this, relying instead on precedents that didn’t support his conclusion.

In a perfect world, Cardozo’s dishonest decisions in Helvering and Steward Machine would have sullied his stellar reputation. However, the people who establish the reputations of jurists generally share his left-of-center philosophy, so they give him a pass.

The Practical Consequences

The practical consequences of Butler, Helvering, and Steward Machine were devastating. Before those decisions, Congress usually balanced its budget or ran a surplus. In the 85 years since, Congress has rarely balanced its budget, and the size of the deficits continues to accelerate.

Furthermore, as Justice Butler predicted in his Steward Machine dissent, these decisions enabled Congress to bribe states with their citizens’ own money. This undermined state independence and weakened a check in the constitutional system.

Removing limits on the federal spending power also created a mob of special interests that pursue federal dollars irrespective of the public interest. Because those special interests fund congressional re-election campaigns, cooperative members of Congress can remain in office for decades. Since the 1960s, moreover, the federal government has used its unfettered spending authority to create dependency, fund favored political causes, promote fringe social theories, and undermine traditional culture.

The Supreme Court’s next attacks on the Constitution came in United States v. Carolene Products (pdf), issued in 1938, and United States v. Miller (pdf), issued in 1939. I’ll address them in the essay discussing civil liberties.

 

Part IV: A Packed Court—and a Federal Land Grab

1937–1938: FDR Starts to ‘Pack the Court’ (essay continues below chart)

Roosevelt failed in his famous effort to “pack the court” by expanding its size, partly because Chief Justice Charles Evans Hughes politically outmaneuvered him. However, FDR was able to achieve his ultimate goals by nominating replacements for retiring justices. He didn’t nominate seasoned jurists. In fact, with one exception, none of his nominees had ever served full-time as a judge. Instead, he chose New Deal activists—including a few of undoubted talent—willing to sacrifice the Constitution for the sake of the liberal agenda.

The retirement of Willis Van Devanter in the spring of 1937 created the president’s first appointment opportunity. He chose Sen. Hugo Black of Alabama, presumably as a reward for Black’s support for the New Deal. The appointment certainly wasn’t based on merit: Black’s only judicial experience was two years as a part-time city court judge.

Black was still on the bench when I was in law school. Our liberal faculty members portrayed him as a lovable, crusty, old man with an idiosyncratic theory of First Amendment free speech. They didn’t discuss Black’s early years on the bench, when he freely invented reasons why Congress and the administration could do anything they wanted to.

A good illustration is Black’s concurring opinion in the 1939 case of Coleman v. Miller (pdf). In that opinion, Black claimed—disregarding both history and constitutional text—that Congress had “exclusive power” over the entire constitutional amendment procedure. According to Black’s hypothesis, Congress could do anything it wished with the procedure, and the courts had no way of responding. Obviously, if this notion had prevailed, Congress would have become omnipotent, altering the Constitution almost at will. Black actually persuaded three of his colleagues to sign onto this absurd opinion.

Fortunately, Chief Justice Hughes had better sense. His decision for the court charted a much more moderate course. In subsequent years Hughes has been vindicated, as judges at all levels have soundly and unanimously adopted his view and rejected Black’s.

In early 1938, FDR nominated his Solicitor General, Stanley Reed, to replace the retiring George Sutherland. Like Black, Reed proved to be a reliable member of the “the feds are all-powerful” school of constitutional thought.

1938: The Court Destroys Restraints on Federal Property Ownership

Roosevelt’s appointment of Reed paid off almost immediately, when Reed wrote an opinion for the court dismantling the Constitution’s restraints on federal land ownership.

Power over land is power over people. When government acquires or retains land, the liberal media say the government is “conserving” or “preserving” it. But those are euphemisms. What government ownership usually means is that the power of the bureaucrats is greater and the freedom of the people is less.

The 1787 Constitutional Convention considered allowing the federal government to hold vast tracts of real estate in perpetuity, but rejected the idea. Most of the Constitution’s framers understood that limiting the federal government requires limiting federal land ownership.

The Constitution’s Property Clause (Article IV, Section 3, Clause 2) governs federal land ownership within state boundaries. It grants Congress unqualified authority to dispose of land, but no unqualified power to acquire land.

The Constitution’s Enclave Clause (Article I, Section 8, Clause 17) governs the power to acquire federal jurisdiction over territory within state boundaries.

The document’s text, coupled with its history, shows that the federal government may acquire ownership or jurisdiction over acreage dedicated to one or more of the purposes enumerated (listed) (pdf). But the Constitution grants no authority to acquire parcels merely because the government thinks they would be nice to have. Property acquired in excess of constitutional needs (such as that obtained by international treaty) must be disposed of.

The Enclave Clause thus speaks only of a capital district and “needful Buildings.” As the Constitution uses the word, “Buildings” means improvements of all kinds, not only enclosed structures. However, “Buildings” doesn’t encompass vast tracts of territory. Before 1938, Supreme Court cases on federal enclaves involved areas of limited size dedicated to enumerated purposes. Examples included navigational facilities (included in Congress’s Commerce Power) and military installations. With the exception of the enclave called Washington, D.C., which the Constitution authorizes explicitly, these enclaves were relatively small.

Spanning 748,000 acres, Yosemite National Park isn’t a “needful Building.” It serves no purpose mentioned in the Constitution. Rather, it’s a precious environmental and recreational preserve, and should be protected and managed by a fiduciary trust—or perhaps by the State of California—not by the highly politicized federal government.

Nevertheless, in Collins v. Yosemite Park & Curry Co. (pdf), the Supreme Court ruled that California’s cession of Yosemite to the federal government was valid under the Enclave Clause. Only Justice James McReynolds dissented. Ever since, the court has permitted the feds to own or control land almost without limitation (pdf).

The Practical Costs of the Court’s Decision

Readers without experience in the American West may not appreciate how damaging the Collins decision has been. It ratified the power of federal bureaucrats and politicians over 28 percent of American real estate. This real estate is disproportionately in the West: The feds own well over 80 percent of Nevada, over 60 percent of Alaska, Idaho, and Utah, and more than half of Oregon.

Most of this land has no unique value and there’s no reason for the federal government to own it—other than for political power. Almost everyone agrees that the quality of federal management hasn’t been high.

Additionally, federal land ownership enables the bureaucracy and the special interests that thrive on federal control to manipulate voters and officials within Western states, thereby impeding local self-government and seriously distorting the entire constitutional balance.

 

Part V: Killing Economic Freedom

Congress’s Economic Powers

The Constitution granted Congress significant, but limited, economic powers. They included:

• passing “uniform Laws on the subject of Bankrupcies,”
• coining and controlling the currency (pdf),
• fixing weights and measures,
• establishing post offices,
• establishing “post Roads”—that is, intercity highways (pdf),
• issuing patents and copyrights,
• governing federal enclaves and territories, and
• “regulat[ing] Commerce with foreign Nations, and among the several States, and with the Indian tribes.” This is the Commerce Clause (Article I, Section 8, Clause 3).

In addition, the Necessary and Proper Clause (Article I, Section 8, Clause 18) recognized Congress’s prerogative of passing laws “necessary and proper” for carrying out other powers.

Congress’s Commerce Power

The vast expansion in federal economic authority during the years 1937–1944 was made possible by the Supreme Court’s decisions re-writing the two clauses that, working together, create Congress’s Commerce Power: (1) the Commerce Clause and (2) the Necessary and Proper Clause. To understand how the court mangled these provisions, we first must understand their original meanings.

When the Constitution gave Congress authority to “regulate Commerce,” the phrase meant passing laws on the purchase and sale of products and some traditionally associated activities, such as navigation and cargo insurance (pdf). “Commerce” excluded other economic activities, such as production (manufacturing, agriculture, and mining), real estate transactions, and most kinds of insurance. It also excluded non-economic activities, such as crimes of passion, marriage and divorce, religion, and morality. The Constitution left oversight of all those activities to the states (pdf).

The Commerce Clause also limited Congress to supervising commerce across political borders. Congress could regulate the sale of shoes by a North Carolina wholesaler to a New York retailer. But only New York State government could oversee a New York retailer’s sale to a New York buyer.

Those who wrote and adopted the Constitution thoroughly understood that economic and non-economic activities all affect each other. If a wheat grower has a bumper crop it affects the price of wheat in commerce. Similarly, the price of wheat may influence the grower’s decision to buy more land, marry, or have children. In the 1930s, progressives often claimed that because of interdependence, the federal government should regulate everything, or at least all economic activities. They seemed to think the Founders didn’t understand interdependence or that it was something new. (See, for example, the quotation from Chief Justice Charles Evans Hughes in the second installment of this series.)

But interdependence was nothing new, and the Founders fully understood it. Still, when writing the Constitution they split responsibility between the states and central government. They did so because other values (such as freedom) are more important than central coordination.

However, the Founders qualified the split of responsibility with the Necessary and Proper Clause. That clause is too complicated to cover here. (Curious readers might consult this book.) Suffice to say that it allowed Congress to govern some activities that were not exactly “commerce,” but were subordinate (“incidental”) to it. For example, the Commerce Clause allowed Congress to regulate the shipment of goods across state lines, and the Necessary and Proper Clause permitted Congress to regulate how the goods were labeled for the journey. 

1937: Chief Justice Hughes’s Attempted Compromise

The third installment of this series discussed Hughes’s opinion in National Labor Relations Board v. Jones & Laughlin Steel Corporation (pdf). Hughes said Congress could regulate labor relations (part of production rather than commerce) in a very large interstate company to prevent an “obstruction” to commerce. Hughes’s opinion reveals that he was relying on the Necessary and Proper Clause, although he didn’t use the name.

But for the Necessary and Proper Clause to allow Congress to regulate an activity, it’s not enough that the activity obstruct or otherwise affect commerce. The activity also must be subordinate or “incidental” to commerce—and labor relations are far too important for that. Ultimately, Hughes’s attempted compromise gave more extreme progressives a vehicle for destroying the limits on the federal Commerce Power entirely.

1938–1941: Progressives Take Over

Retirements after Jones & Laughlin allowed Roosevelt to place New Deal supporters on the bench. The previous installment in this series mentioned Hugo Black (1937) and Stanley Reed (1938). Benjamin Cardozo was replaced by Felix Frankfurter (1938) and Louis Brandeis by the far-left William O. Douglas (1939). The conservative Pierce Butler was replaced by FDR’s attorney general, Frank Murphy (1939). James McReynolds was supplanted by James Byrne, a pro-New Deal senator (1941).

Also in 1941, Hughes retired. FDR moved the more liberal associate justice Harlan Fiske Stone up to Chief Justice. He then filled Stone’s slot with Robert Jackson, who had succeeded Murphy as attorney general.

By 1942, the court’s make-up stood as follows:

Liberals—9

Conservatives—0

1941–1944: The Court Gives Congress Total Economic Power

In February 1941, the court handed down United States v. Darby (pdf). The Darby Lumber Company was a Georgia enterprise far smaller than the Jones & Laughlin Steel Corporation. The issue was whether federal labor law was enforceable against this smaller entity.

Chief Justice Stone’s meandering opinion appears to have relied on the Necessary and Proper Clause, but it never mentioned that clause by name. Stone cited Hughes’s decision in Jones & Laughlin, but ignored the fact that Hughes’s decision was limited to much larger companies. Stone added that Congress could regulate any production with a “substantial effect” on commerce, but never defined “substantial effect.” Stone further said Congress may regulate production that is “so related to the commerce and so affect[ing] it as to be within the power of Congress to regulate it,” apparently not recognizing that this statement is circular.

Constitutionally, the portions of Darby just discussed were inane. But they gave a relative handful of federal politicians almost absolute power over every business in America.

The court’s 1942 case, Wickard v. Filburn (pdf), naturally followed from Darby. Roscoe C. Filburn was a farmer who grew wheat. Pursuant to a New Deal program, the federal government imposed a maximum wheat quota. Filburn didn’t sell more than the quota, but he grew some extra to use on his own farm. The government fined him. The court unanimously upheld the fine.

Justice Jackson’s opinion acknowledged that Filburn’s raising wheat for home consumption was not “Commerce.” But Jackson relied on the Darby case and said that Congress could regulate Filburn’s decision because his decision, when amalgamated with others like it, had a “substantial effect” on commerce.

Like Hughes before him, Jackson also misrepresented comments by Chief Justice John Marshall. Jackson wrote:

“At the beginning Chief Justice Marshall described the federal commerce power with a breadth never yet exceeded. Gibbons v. Ogden … . [Marshall] made emphatic the embracing and penetrating nature of this power by warning that effective restraints on its exercise must proceed from political rather than from judicial processes.”

In fact:

• Marshall never permitted congressional control over production under the pretense that it “affected commerce.” Gibbons v. Ogden (1824) addressed navigation, a subject within the core of the Commerce Clause.
• In the same case Marshall listed activities outside the scope of federal power, including some that “substantially affect” commerce.
• Marshall never said “effective restraints … must proceed from political rather than judicial processes.” On the contrary, in McCulloch v. Maryland (1819) he affirmed explicitly that if Congress exceeded its authority, “it would become the painful duty of this tribunal … to say, that such an act was not the law of the land.”

Jackson’s duplicity in Wickard was exceeded only by Black’s in United States v. South-Eastern Underwriters Association (pdf), decided on June 5, 1944. South-Eastern Underwriters overruled longstanding SCOTUS precedent to hold that Congress may regulate all forms of insurance because all of them (not just cargo insurance) are “Commerce.”

Black’s opinion for a unanimous court was a classic example of judicial mendacity. Again, it helps to itemize:

• Black claimed 18th century “dictionaries, encyclopedias, and other books” defined “Commerce” to include all forms of insurance. Yet he failed to cite a single dictionary, encyclopedia or book saying that (because there are none).
• Black also cited a report by Alexander Hamilton, but failed to reveal that Hamilton’s report referred only to cargo insurance.
• Black referenced Marshall’s Gibbons v. Ogden opinion to “prove” that insurance is a form of commerce. Actually, Marshall never mentioned insurance in that case.
• Black cited a thinly documented 1937 book claiming “Commerce” includes all economic activities. But this claim is rebutted by the text of the Constitution itself, which lists other economic activities separately (see above).

When we consider the enormous scope of the current federal regulatory regime, we do well to remember that the ultimate constitutional justification for most of it consists of the Supreme Court’s mendacious ruling in South-Eastern Underwriters and vague “substantial effects” language from Darby and Wickard.

A flimsy foundation indeed.

Part VI: Crushing Civil Liberties

1937–1944: The Court Attacks Civil Liberties

Most of the Constitution’s framers considered the document’s principal protection for liberty to be its limits on the federal government’s enumerated powers. The framers did, however, add some specific protections. And after the Constitution was ratified, Congress and the states added the Bill of Rights.

Even so, the Constitution’s protections for civil liberty are not complete. For example, most modern Americans would be surprised to learn that the First Amendment’s guarantee of “the freedom of speech” did not protect against prosecutions for blasphemy. Still, the best way to guard constitutional rights is to enforce them according to their real meaning—that is, as they were understood when adopted. Judges who purport to widen constitutional rights will narrow them as well.

This actually happened during the years from 1938 to 1944. First, the court announced it would favor some constitutional rights over others. Then it suppressed rights it supposedly favored.

1937–1938: Some Rights are More Equal than Others

The Constitution contains two guarantees of “due process of law,” one in the Fifth Amendment protecting against federal abuses and one in the Fourteenth Amendment protecting against state abuses. As originally understood, these Due Process Clauses meant only this: When the government prosecutes you criminally or civilly, it must follow pre-established law. It may not change the rules as it goes along.

During the later 20th century, liberal activist judges stretched the Due Process Clauses to protect invented “rights” such as abortion. During the early 20th century, conservative activist justices did something comparable. In the name of freedom of contract, they struck down some minimum-wage and maximum-hours laws, claiming those measures violated Due Process.

In early 1937, however, a five-justice majority effectively overruled the conservative Due Process precedents. The case was West Coast Hotel Co. v. Parrish (pdf).

West Coast is famous because historians used to believe that FDR’s court-packing plan had bullied Justice Owen Roberts into voting with the court’s liberals in that case. This was the alleged “switch in time that saved nine.” We now know that’s not true. Roberts’ vote had been determined before the court-packing plan was announced.

The following year, United States v. Carolene Products (pdf) essentially confirmed the Parrish decision. Carolene Products is famous as well. When Chief Justice Harlan Fiske Stone wrote the opinion for the court, he added a celebrated footnote known to lawyers as “Footnote 4.”

Footnote 4 said it was “unnecessary to consider now” whether the court should start favoring some constitutional rights over others. This communicated to court-watchers that the justices would start doing just that.

Liberal commentators celebrate Footnote 4 because it offered super-protection for rights liberals like (such as the procedural guarantees enjoyed by accused criminals) and a downgrade of rights liberals do not favor (such as protection for contracts). But in the immediate aftermath of Footnote 4, the court downgraded both categories.

1939: The Court Guts the Second Amendment

The first right diminished was the Second Amendment right to keep and bear arms. United States v. Miller (pdf), an 8–0 decision, was issued on May 15, 1939. The author of the court’s opinion was James McReynolds. His opinion improperly narrowed the right to keep and bear arms—just as his prior opinions had improperly expanded the Due Process guarantee.

Jack Miller and Frank Layton were convicted of possessing a sawed-off shotgun not registered under federal law. The Second Amendment was their defense: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” The court recognized that, in this context, “militia” refers to all able-bodied males.

Construed correctly, the Second Amendment protects the use and ownership of portable (“bear-able”) weapons used for three purposes: (1) to prepare Americans to serve in a federalized militia for the common defense of the country, (2) to enable Americans, both individually and as part of the state militias, to defend themselves against a central government turned tyrannical, and (3) individual self-defense.

In Miller the court recognized only the first purpose. This implicitly allowed the federal and state governments to ban weapons for the other two purposes. It was not until 2008 that the Supreme Court began to correct this mistake (pdf).

The Attack on Habeas Corpus and Trial by Jury

In 1942 the United States was at war with Nazi Germany. In June of that year, the Germans sent two submarines to American shores and dropped off eight would-be saboteurs. All eight were young men who had lived for long periods in America. Two were U.S. citizens.

At least two of the men (including one U.S. citizen) accepted their assignment only to escape from Germany and return to America. After landing, they surrendered themselves to the Federal Bureau of Investigation. They told the FBI everything, and the agency soon picked up the other six.

President Roosevelt was understandably furious that German submarines were able to discharge saboteurs onto American shores. He ordered the FBI to transfer the men to military control. He arranged for them to be tried by a military commission. His goal was to get immediate “guilty” verdicts and to execute them promptly.

Under the laws of war, the president’s course was entirely legitimate for the six non-citizens. Because, however, capture had not occurred in the immediate theater of war, his course was not legitimate for the two U.S. citizens. Constitutionally, they were entitled to a writ of habeas corpus and a court order transferring them back to civilian custody. They also were entitled to be indicted by a grand jury and, if indicted—presumably for treason—given a public jury trial.

However, FDR, like some other presidents, didn’t care much about limits on his constitutional authority. He flatly told his attorney general, “I won’t hand them over to any United States Marshal armed with a writ of habeas corpus” (pdf).

And so the military trial proceeded. Counsel for the prisoners launched a spirited defense. Counsel showed the court that two defendants had turned states’ evidence. Counsel also pointed to mitigating circumstances involving some of the other defendants.

It didn’t matter. The fix was in. All were condemned to death. The FBI had promised pardons to the two who had turned state’s evidence, but Roosevelt didn’t honor that promise. He merely commuted their death sentences to long prison terms.

In Ex Parte Quirin (pdf), the Supreme Court quickly rubber-stamped the verdicts and sentences. The justices didn’t wait to prepare an opinion explaining their reasons. They announced only that an opinion would be forthcoming. Just five days after the saboteurs were found guilty, six of the eight—including one U.S. citizen—were electrocuted.

Let me be clear: It’s hard to be sorry for the saboteurs. They were operating outside the law of war, they were serving an evil cause, and they understood the risks. That said, though, it remains true that the justices’ conduct was unworthy of the highest court in the land. A key reason for written opinions is to force judges to consider and write out their rationale before announcing a decision. Sometimes the writing process induces judges to change their minds. Also, written opinions ensure that, in multiple-member courts, everyone in the majority is on the same page. Postponing the opinion to hasten the executions was, at the least, unprofessional.

As it turned out, after the executions the justices learned that they were not all on the same page. It took nearly three months to craft a written opinion to which everyone on the court could agree.

This opinion was authored by Chief Justice Stone (pdf). It, too, was unworthy of the nation’s highest court. Specifically:

• It never revealed that six of the defendants were already dead.
• It admitted that one defendant was a U.S. citizen, but never mentioned the other.
• It failed to account for the fact that Congress had not suspended the writ of habeas corpus.
• It did not explain why a military tribunal was constitutional for American citizens apprehended outside the theater of war—which, of course, it wasn’t. In other words, the opinion never explained why the two citizens could be denied indictment by a grand jury and civil trial by a petit jury.

Stone, you will recall, was the justice who introduced “rights balancing” in Carolene Products. In the Miller case, he and his colleagues balanced away the Second Amendment for the sake of a federal license. And in Quirin they balanced away habeas corpus, grand jury indictment, trial by jury, and due process of law.

Judges who re-write some parts of the Constitution will re-write others.

 

Part VII: Concentration Camps—and the End

This final installment addresses the court’s role in what was, aside from slavery, the most egregious violation of civil rights in American history. It adds some observations on how the court’s abysmal record from 1937 to 1944 continues to affect us today.

1942–1944: The Attack on Japanese-Americans

In 1942, military authorities imposed a curfew on the populations of Western states. Curfews are understandable in time of war. This one, however, applied only to a single ethnic group: persons of Japanese ancestry, including U.S. citizens. Persons of German and Italian ancestry never faced curfews, even though the German saboteur episode discussed in the previous installment showed that the East Coast was vulnerable to attack. The evidence was strong that racism contributed to the distinction.

Two additional military orders required that all persons of Japanese ancestry within those Western states both (1) remain at home and (2) leave the affected states. These two orders were obviously contradictory.

Still another decree required all persons of Japanese ancestry to report to a “Civil Control Station.” Civil Control Stations were centers for deportation to concentration camps. There, persons of Japanese ancestry—again, including American citizens—were held indefinitely. There were no charges to answer and no screening procedure to separate the loyal from the disloyal. (The British, by contrast, used a screening procedure to test the loyalty of British residents of German and Austrian ancestry. Over 97 percent of those screened were released.)

All these orders were approved by Roosevelt and, indirectly, by Congress.

Gordon Kiyoshi Hirabayashi was a young natural-born American citizen of unquestioned loyalty. He violated the curfew, but continued to live in his home. He thereby complied with the remain-in-place order but violated the (inconsistent) removal order.

Hirabayashi was convicted of breaking the curfew and removal orders and given a jail sentence for each. The sentences were concurrent, which means they were to run at the same time. He appealed his two convictions, and the case ended up before the Supreme Court.

Hirabayashi v. United States (pdf) was decided on June 21, 1943. Chief Justice Harlan Fiske Stone wrote for a unanimous court. He first upheld the conviction for violating the curfew. One would then expect him to evaluate the conviction for violating the removal order. This was important for two reasons. First, the removal order was far more intrusive than the curfew. Second, the only way to comply with both the removal and remain-in-place orders was to report to a Civil Control Station and be incarcerated.

But Stone never did address the conviction for violating the removal order. On the pretext that Hirabayashi was going to jail anyway, he left the young man with an unreviewed—and probably indefensible—criminal conviction on his record. A federal appeals court finally overturned that conviction in 1987.

Rutledge Joins the Bench

In October 1942, Justice James Byrnes resigned to head FDR’s Office of Economic Stabilization. His replacement, Wiley Rutledge, took office in February 1943.

When serving as a law professor, Rutledge had been an outspoken supporter of the New Deal and the court-packing plan. FDR rewarded him with a judgeship on a federal court of appeals. Rutledge served there for four years before the president sent him to the Supreme Court. Rutledge was the only one of Roosevelt’s many SCOTUS picks with significant judicial experience.

From FDR’s vantage point, Rutledge was a good choice. First, Rutledge concurred with Stone’s decision in the Hirabayashi case. Second, and more importantly, he supported the president in an abuse of authority so outrageous that even some other FDR appointees rebelled.

1944: The Japanese-American Concentration Camp Case

Constitutional scholars of all political stripes agree that Korematsu v. United States (pdf) was one of the worse Supreme Court decisions ever issued. Fred Toyosaburo Korematsu, another young American citizen of unquestioned loyalty, had been convicted of failing to obey the removal order. On Dec. 18, 1944, the justices sustained the conviction.

The opinion of the court was composed by Hugo Black. That opinion, like so many Supreme Court pronouncements during this era, was laden with evasions, doubletalk, and outright dishonesty.

Initially, Black purported to give Korematsu the highest level of protection—what we now call “strict scrutiny.” Racial restrictions, Black wrote, were “immediately suspect” and “subject … to the most rigid scrutiny.” But then Black then yielded up the young man because “We cannot say that … the Government did not have ground for believing” removal was militarily desirable. Of course, a standard like “We cannot say that … the Government did not have ground for believing” is hardly “the most rigid scrutiny.”

Black pretended that the order Korematsu violated was for removal only. However, Korematsu proved that the only permissible way to follow the removal order was to report to a Civil Control Station. There, he would be detained and shipped to a concentration camp without hope of release. Toward the end of the opinion, Black insisted, “[W]e deem it unjustifiable to call them concentration camps.” Another lie.

A federal court overturned Korematsu’s conviction in 1983. Yet the Supreme Court has never overruled the “reasoning” in the Korematsu case. It lives on today as the first application of “strict scrutiny” to laws impairing certain constitutional rights.

It also lives on as the first case in which the court evaded strict scrutiny—something it has done too often when testing constitutionally suspect measures favored by the political left. For example, government race discrimination is supposedly subject to strict scrutiny. But as recently as 2016 the justices fudged that standard to permit state universities to discriminate against Caucasians and Asian-Americans (pdf).

Conclusion: The Nadir of the Supreme Court

The years 1937 to 1944 represent the low point—the nadir—in the Supreme Court’s long history. The court had issued bad decisions before, some of them egregious. But never had it disregarded its fundamental responsibility to defend the Constitution so deliberately and for so long.

By the time of the Korematsu case, there were signs that the nadir was passing. The decision was not unanimous. Frank Murphy and Robert Jackson, both FDR appointees, dissented. Murphy’s opinion marshalled powerful evidence that the military orders were motivated by racial prejudice. Also dissenting was Owen Roberts. After a career of waffling, his powerful indictment of the government’s actions may well have been his finest hour.

Moreover, on the same day as the Korematsu decision, the court announced the result in Ex Parte Endo (pdf). The justices granted the petition of a loyal American citizen to leave her concentration camp, after two-and-a-half years of detention.

The 1952 Steel Seizure cases (pdf) comprised the clearest sign that the era of judicial toadyism was over. The court firmly rebuffed President Harry Truman’s unilateral nationalization of the American steel industry. Hugo Black and Robert Jackson took the lead: Black wrote the opinion for the court. Jackson penned a memorable and much-quoted concurrence. The president, Jackson pointed out, was commander-in-chief of the army and navy. He was not the commander-in-chief of the country.

All this was welcome. But the Constitution had suffered enormous damage, from which it has never fully recovered. The present condition of the federal government is evidence of that.

During the third century, the Roman Empire was assailed with dynastic chaos, civil war, plague, and multiple invasions. It nearly collapsed. Beginning about 270, though, highly competent, hard-working emperors managed to work a recovery. Their efforts preserved the Roman state intact for another century and a half.

Yet this recovery was only partial. This late empire was a darker place than its former self: less prosperous, less extensive, less stable, and less free.

So also the United States. The Constitution that made American greatness possible has been severely compromised. Whether we fully repair it is our decision to make. We have no emperors to do the job for us.