CHAPTER VII
The End of the Cycle of Constitutional Freedom for the American Citizen
We have forgotten that almost everywhere on earth, from the dawn of history until about a century and a half ago, man was not even conscious that he possessed any indefeasible rights which government was bound to respect; that he was exploited by his rulers as something with claims not much above those of the flocks and the herds. Among the English-speaking peoples alone had there been any recognition of inherent rights, but not without periodical losses of them in times of lethargy and inattention to the encroachments of political power.
Today, without any general appreciation of it among the masses of our citizens, we find the same old oppression fastening itself upon us, with the use of the same disguises and chicanery. Take, for example, the "Fair Labor Standards" act, which has robbed the worker of his most essential right, to work when, and for whom, and at what wages and for how long or how little as he pleases, or not at all. This is, in fact, a reversion to the early and despotic English Statute of Laborers of 1349. The act will be seen to be anything but "fair" when it is understood that this new usurped power to decree high wages and a 40-
hour week is the same power that the government of Edward III exercised to compel all men under 60 to work for anyone requiring their labor on his terms or go to jail. And it is the same power the government of Turkey has just used to decree low wages and a 72-hour week. It is one of the "new instruments of public power," which President Roosevelt "built up," which may work favors for a time, in the hands of "a people’s government," but, woe to the worker when this power gets into the hands of another type of government. Samuel Gompers abhorred the thought of any government interference with the free American workman."Social Security," which the federal government has just assumed, equally unlawfully, as a duty toward the citizen, with the assumed duty and power to feed, clothe and house the unemployed on "relief," are also the duty and power to place the recipients in compulsory labor camps, when the wealth has been distributed and dissipated. He who becomes dependent upon government may be dealt with as government pleases.
Roosevelt’s coup d’etat was the culmination of progressive assaults upon our free system by many of his predecessors. But the chance of complete transformation of the system would have been remote but for a momentous alteration of the Constitution itself, in the adoption of the Sixteenth Amendment in 1913, delegating to the federal government complete control of the wealth of the people in the unlimited power to take their earnings and income. A federal government, frugal from necessity, in its limited power to tax and borrow, could never have been a menace to liberty. But the new power to tax is not only a power to take all of the earnings, from rich and poor alike, but it is enforced with a multitude of complicated regulations, some of them secret, and with penal provisions
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which may be readily used for purposes of prosecution for even unintentional errors found in the tax returns of the relatively small class of citizens now selected to pay.
This cannot be considered a constitutional power of taxation, since a constitutional power is necessarily a limited power; being uncontrolled by any provision of the Constitution, it is, on the other hand, a power of confiscation. As Judge Story says in his Commentaries on the Constitution:
"Indeed, in a free government, almost all other rights would become utterly worthless, if the government possessed an uncontrollable power over the private fortune pf every citizen. One of the fundamental objects of every good government must be the due administration of justice; and how vain it would be to speak of such an administration, when all property is subject to the will or caprice of the legislature or the rulers."
From 1789 to 1913, the federal government had a constitutional power of taxation. The framers of the Constitution, knowing "the power to tax is the power to destroy," hedged it about with the conditions that direct taxes could be levied only according to population in the several States, and that all other taxes must be levied uniformly and equally. That is to say, in any direct tax levied before 1913, New York, with a population of 12,000,000, would pay three times as much of it as Missouri, with a population of 4,000,000. There could be no discrimination. As the Supreme Court declared in a case in 1897:
"Equality in right, in protection and in burdens is the thought which has run through the life of the nation and its constitutional enactments from the Declaration of Independence to the present hour."
The equal protection of the law is implicit in the many-faceted right to liberty, and its denial, as the Supreme Court said again, may occur in many ways. It will most often occur in the enforcement of laws imposing taxation. An individual is denied the equal protection of the law if his property is subjected by the State to higher taxation than is imposed upon like property of other individuals in the same community.
It is for this reason that exemption from taxation is but a form of class legislation, since all exemptions tend necessarily to increase the taxes levied on the non-exempted. Equally of burden, by making each citizen, according to his means a contributor to the expenses of government, was one of the most salutary principles in our past development; for it is the contributing citizen who is the voting and watchful citizen, giving the best assurance of honesty and economy in the public expense.
But now we see that the federal government has slowly established unequal and discriminatory taxation, on a progressively rising scale on incomes, not for the purpose of meeting the expenses of its legitimate public functions, but to regulate incomes, to depress one class of citizens and seek to elevate another.
The principal vice of this graduated system is that there is no known rule by which it may
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be applied, except the whim of those who wield the power. Meantime, the huge sums annually taken are dissipated in non-productive extravagance, robbing industry, commerce and the worker of benefits which its application to private effort might have brought. Progressive and unequal taxation ended during the French Revolution, when the exempted majority liquidated the property-owning minority, called the "superfluous," with a tax rate of one hundred percent. The graduated income tax rates adopted by our government have already reached a maximum of 75%.
Likewise the right of bequest is an essential right of liberty. The love of parent for child grows stronger and more tender with advancing civilization. The parental desire to bequeath property for the care of the child has been one of the main obstacles to successful attacks on capital by Communists and Socialists. They have, therefore, attacked the institution of the family and seek to educate children in colonies, and to destroy the tie of parentage. And, again, we find our federal government has attached this right of bequest, with a tax rising to 70%, and, to make it inescapable, has levied a tax rising to 52 1⁄2% on gifts made to children during the parent’s lifetime. Thus, if a father wishes to give his son capital with which to establish a business, to employ workers and thereby enhance the well-being of the community, as well as his own, the federal government discourages it with heavy taxation on the gift.
The policies of excessive income taxation, and prodigal borrowing, of competition by the government with the citizen in private callings, as in the utility and other fields; of obstruction to the raising of new capital by industry, through control of the newly- created Securities and Exchange Commission, and the policy of official "smearing" of business men as pariahs, all seem to be parts of a deliberate plan to destroy free enterprise, for which some other system – such as the socialistic one of "production for use, and not for profit" – must be substituted, under rigid government control.
The next form of taxation to which the American citizen will be subjected to meet the gigantic and increasing costs of the Social Democracy, will, in all probability, be capital taxes. There need be only a revival of Huey Long’s amendment to House Bill No. 5040, which was debated in the Senate on May 12, 1933. He proposed a very moderate start, in order to get the principle established with the least alarm, exempting all persons whose accumulations we e valued at $1,000,000, but nevertheless requiring federal general property tax returns from them. The rate was one percent on all having property valued over $1,000,000 up to $2,000,000 and rising arbitrarily to 45 percent on all persons possessing $100,000,000.
There is now no recourse against the oppressions the federal government may practice, such as might have afforded protection before the coup d’etat.
From the beginning of our Republic to recent times the Supreme Court of the United States had not failed us as the final guardian of our constitutional immunities. In discussing its duty to protect the citizen against invasion of his rights by government, in a famous case, it expressed its policy in these words:
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"This can only be obviated by adhering to the rule that constitutional provisions for the security of person and property should be liberally construed. A close and literal construction deprives them of half their efficacy and leads to a gradual depreciation of the right, as if it consisted more in sound than in substance. It is the duty of the courts to be watchful for the constitutional rights of the citizens, against any stealthy encroachments thereon. Their motto should be obsta principiis."
Such was the sense of solemn responsibility which was reflected in the decisions of the Supreme Court throughout its history, until about three years ago, when President Roosevelt was able, through vacancies, to reconstitute the majority of the court through his own appointments. In that short time the new majority of the Court has overruled many long settled principles previously enunciated to restrain federal power, plainly indicating its sympathy with "the new order of things."
There is no longer displayed any solicitude for the rights of citizens invaded by arbitrary administrative agencies, empowered to make and enforce their own law as judge, jury and prosecutor, nor does there appear to be longer entertained the view that the nation is made up of "an indestructible Union of indestructible States," to which latter are entrusted the powers of local self-government. On the other hand, in upholding new legislation setting aside the rights of both the citizens and the States, the Supreme Court is furthering what, in the past, the same tribunal has condemned from the time of its establishment as simple usurpation of power. And it seems only reasonable to expect a continuation of this process of blotting out the State divisions until all power is consolidated in an authoritarian despotism operating over all from Washington.
What has happened is a fulfillment of the warning of Thomas Jefferson, toward the close of his life, - at Monticello, in 1821:
"When all government, domestic and foreign, in little as in great things, shall be drawn to Washington, as the center 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."
Every principle of law which has protected our rights as freemen anywhere had first to be wrung from governmental power that denied it, sometimes in struggles lasting for centuries. We are the heirs of those who manfully strove and won for us these principles that protect the dignity and worth of the individual, but we have permitted a filching of the heritage.
It has been said with great truth that, in defense of one’s essential rights, man is defending not only his physical, but his moral existence; that the assertion of them at all times is a duty of moral self-preservation, and that a surrender of them is moral suicide.
There is much evidence of the destruction of spiritual values, as they affect the individual in his own character, accompanying this transformation of our institutions. We observe, for example, a general spirit of helplessness and resignation toward the defense of our
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constitutional rights and immunities, in the face of various expedients of intimidation and harassment which government itself has become bold enough to practice against those who are manful enough to oppose its oppressive policies. In part, this results from a whittling down by government of our traditional remedies against its arbitrary action, in narrowing our right of appeal to independent courts for protection, and in the undermining of the integrity in those courts themselves.
There is yet another afflicting loss in "the new order of things," in its influence upon an outstanding development of self-reliance in the national character of our people, of which the late John W. Burgess wrote prophetically his "Recent Changes in American Constitutional Theory," soon after the Nineteenth, or Woman Suffrage Amendment was ratified, in 1921. He pointed out that paternalistic functions of government must necessarily narrow the domain of individual immunity against governmental power, and that we, in America, had found the safe alternative to governmental paternalism in voluntarily occupying this field through our private cooperations, constituting what he terms "voluntary socialism."
The great enterprises of voluntary socialism, which have distinguished this country from all others, have been carried forward primarily by the patient work of women; they have been the makers of the home, the builders of the churches and the ministrants of charity, while politics and government have been left to men. He greatly feared the Woman’s Suffrage Amendment would tempt women to abandon their private cooperative efforts in these fields for the easier method of passing it on to government. And he adds:
"The very finest thing which the world’s civilization has ever reached is this wonderful sphere in these United States of America of free social cooperation for the advancement of education, religion and morality, the care of the sick and needy, the spread of neighborly kindness and helpfulness, and for the upbuilding, thereby, of enlightened character, which dispenses with paternalism in government and makes democracy safe for our country.
"Without this we could never have attained and maintained that system of limited government and individual liberty which has made us a great and happy and relatively contented people.... It would be a very moderate statement to say that it is now trembling in the balance. It would be near the mark to suggest, at least, that it is anxiously awaiting what may be its death blow. If the women of the country, in becoming members of the electorate, shall shift their interest from the home, the church, the school, the hospital, the associations of charity, etc., to the political club, the caucus, the convention, the legislature and office, and abandon their supreme work for civilization within the realm of voluntary socialism, making necessary, thus, the substitution of compulsory socialism, state socialism, governmental socialism, for voluntary socialism, then indeed will the American system of limited government and constitutional civil liberty have made its cycle and reached its end....
The rapid development of State Socialism, engrossing many of the old fields of willing
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private sacrifice and effort for the public good, has brought discouragement and a sense of despair to the thinning numbers still at work in the spheres not yet absorbed. With the purposeful confiscation and dissipation by government of private wealth in the hands of those still able to encourage and support such free social cooperation, the time cannot be distant when these remaining spheres, perhaps even the church itself, will succumb to the necessity of government support and its corollary, dominance by the State, as the final stage of the new Social Democracy in America.
The freedom of the individual, in his old immunities against governmental power, has vanished as the proud attribute of American citizenship, along with the courage and nobility of character so essential to maintain it. But, with the undying passion of mankind to possess it, and the tears and blood that have been shed in the struggle to achieve it, we may look forward to some future period of uncertain American history which will again record its recovery.
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