Two Paths

Down one path for our Republic, we have Supreme Court rulings and dissenting opinions like these.

In the Child Labor Tax Case, in which the government sought to protect children from excessively long hours in sweatshops, Chief Justice William Howard Taft, writing for the court, rejected the government's broad taxing interpretation and struck the law as unconstitutional.  He wrote in part,

a court must be blind not to see that the so-called tax is imposed to stop the employment of children within the age limits prescribed.  Its prohibitory and regulatory effect and purpose are palpable.  All others can see and understand this.  How can we properly shut our minds to it?

He answered his question in this way [emphasis mine]:

It is the high duty and function of this court…to decline to recognize or enforce seeming laws of Congress, dealing with subjects not entrusted to Congress, but left or committed by the supreme law of the land to the control of the States.  We cannot avoid the duty even though it require us to refuse to give effect to legislation designed to promote the highest good.  The good sought in unconstitutional legislation is an insidious feature because it leads citizens and legislators of good purpose to promote it without thought of the serious breach it will make in the ark of our covenant or the harm which will come from breaking down recognized standards.

The wisdom of Taft's ruling, however painful it must have been to write, wants no further comment.

A few years later, Justice James Clark McReynolds dissented from the Supreme Court's ruling in NLRB v. Laughlin Steel Corp, which upheld the constitutionality of the NLRB, which had the follow-on result of amending from the bench the Commerce Clause to allow the Federal government to reach inside any of the several States to…regulate…activities that had been held for the preceding 100+ years to be wholly intrastate and so beyond the reach of the Feds.  McReynolds wrote this:

There is no ground on which reasonably to hold that refusal by a manufacturer, whose raw materials come from states other than that of his factory and whose products are regularly carried to other states, to bargain collectively with employees in his manufacturing plant, directly affects interstate commerce.  In such business, there is not one but two distinct movements or streams in interstate transportation.  The first brings in raw material and there ends.  Then follows manufacture, a separate and local activity.  Upon completion of this and not before, the second distinct movement or stream in interstate commerce begins and the products go to other states.  Such is the common course for small as well as large industries.  It is unreasonable and unprecedented to say the commerce clause confers upon Congress power to govern relations between employers and employees in these local activities.

McReynolds then exposed the implications of the majority's opinion:

We are told that Congress may protect the "stream of commerce" and that one who buys raw material without the state, manufactures it therein, and ships the output to another state is in that stream.  Therefore it is said he may be prevented from doing anything which may interfere with its flow.

This, too, goes beyond the constitutional limitations heretofore enforced.  If a man raises cattle and regularly delivers them to a carrier for interstate shipment, may Congress prescribe the conditions under which he may employ or discharge helpers on the ranch?  The products of a mine pass daily into interstate commerce; many things are brought to it from other states.  Are the owners and the miners within the power of Congress in respect of the latter's tenure and discharge?  May a mill owner be prohibited from closing his factory or discontinuing his business because so to do would stop the flow of products to and from his plant in interstate commerce?  May employees in a factory be restrained from quitting work in a body because this will close the factory and thereby stop the flow of commerce?  May arson of a factory be made a federal offense whenever this would interfere with such flow?  If the business cannot continue with the existing wage scale, may Congress command a reduction?  If the ruling of the Court just announced is adhered to, these questions suggest some of the problems certain to arise.

And if this theory of a continuous 'stream of commerce' as now defined is correct, will it become the duty of the federal government hereafter to suppress every strike which by possibility it may cause a blockade in that stream?

Imagine the response, for instance, of unions were their wage demands or strikes held unconstitutional (the latter which, incidentally, must upend the heart of Clayton Antitrust).

Down another path we have these, in the short and sweet:

Justice Louis Brandeis, in dissenting from the Court in Burnet v. Coronado Oil & Gas Co, a case that rejected the application of Federal income and excess profits taxes to income derived from a particular kind of state-granted mineral lease, wrote,

…in most matters it is more important that the applicable rule of law be settled than that it be settled right.  This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.

Thus, if an injustice is done through erroneous application of a law, "justice" can only be served by subjecting everyone to that same injustice.  This is a very Sorelian view of the uses of justice (albeit he was writing about "truth" in particular). Yet, it should have been apparent to Brandeis (and I think it was) that "can be had" is not the same as "will be had."  Even so, were the delay before legislative correction is made a brief one, that injustice still can be spread far in the interval.

Then there's Thurgood Marshall's arrogant answer to a clerk's request at a Justice-hosted luncheon for Supreme Court clerks that Marshall describe his judicial philosophy (it was Marshall's turn to host the luncheon):

You do what you think is right and let the law catch up.

La loi, c'est moi.  Louis XIV would have felt right at home in Marshall's...court.

Today, we have the following affairs, which to be sure are the actions of the Executive Branch, which has the capacity to act promptly, and not those of the Judicial Branch.  Nevertheless, the Executive and the Judiciary form two-thirds of our Federal government (I've elided the behavior of the Congress, of which the ACA and Dodd-Frank are current examples), and such activity is the inevitable result of a Big Government that considers the law to be a convenience to be manipulated rather than a circumscription of governmental power.  

·         The NLRB continuing to operate as though two Appellate Court (one of which with national jurisdiction) rulings that they have no quorum do not exist.

·         The failures and cover-up related to the Benghazi preparation, intra-attack, and post-attack events.

·         The failure and cover-up related to IRS targeting government-disfavored Americans and groups of Americans.

·         The naked assault on the free press and on individuals of the press by DoJ.

·         Kathleen Sebelius "encouraging" companies regulated by her HHS to make "contributions" toward the funding of Federal insurance exchanges. 

It's a long list; these are only a few.

It's clear which path the Progressives have chosen for our country.  We can't fade in the traces now.  The struggle is only begun.

Eric Hines

Update: to add the opening sentence, which was omitted in my cut-and-paste posting, and to correct my formatting error in the first Taft paragraph quoted above.