Monthly Archives: March 2010

A great issue of the moment is whether the Federal government should take over health care. People wonder why Obama and company are pursuing this with such alacrity, even though most of the public is opposed.

The answer is quite simple: Inasmuch as health care encompasses one-sixth of the total economy, government hegemony here would be the easiest way to greatly expand the size and influence of government. Indeed, every country in which the central government runs health care has become essentially socialistic, and there has never been any turning back.

Analysts on the Right will identify various key events in American history to be the turning point whereby the United States set out on the road to Socialism—or more precisely, when the Federal government transformed into an all-powerful Leviathan. However, there is considerable disagreement on this turning point, even among the most doctrinaire conservatives.

There are those who would choose LBJ’s Great Society. This massive set of programs aimed to address civil rights, poverty, education, and health—racking up untold billions in expenditures. No one would deny that the most visible result has been the huge expansion of federal agencies, with limited to negligible improvement in the areas mentioned, possibly with the exception of civil rights.

Some will name FDR and his New Deal as the turning point, and they would have ample evidence, what with the National Recovery Administration, Social Security, packing the Supreme Court, and dozens of new “alphabet” agencies. Still others would go back to the horrific War Between the States, and Lincoln’s incredible policy of making war on his own people, to preserve a Union that was supposed to be voluntary in the first place.

Upon reflection, though, it becomes clear that Lincoln’s imperial presidency did not develop in a vacuum. Rather, the trend toward nationalism and the erosion of any state sovereignty started virtually from the beginning.

Former vice president and senator John C. Calhoun, although rightly stigmatized for his pro-slavery views, was absolutely correct regarding his fears of an ever-expanding federal government, that could never be trusted to limit its own powers.

Thomas J. DiLorenzo names Alexander Hamilton and John Marshall as the architects of the all-powerful national government, and Marshall and Daniel Webster especially as those who created the fiction that the states were never sovereign, and that the Constitution was created somehow by “the people” and not the states. Webster was to repeat this lie endlessly even though it flies in the face of Article VII.

DiLorenzo also explains that since Article III, Section 3 defines “treason” as consisting in “…levying war against them [the United States], or in adhering to their enemies, giving them aid and comfort,” Lincoln’s invasion of the South was nothing but treason. Yet, Webster attempted to turn this on its head when he claimed that “To resist by force the execution of a [federal] law, generally, is treason.”

In other words, to RESIST constitutionally defined treason became treason in Webster’s fantasy world. Webster advised that frequent elections and the judiciary would prevent government tyranny. As DiLorenzo notes: “We tried that for decades and decades, Daniel, and it didn’t work.”

OK, but is there a single starting point for this grand notion of Federal superiority? Yes there is, and it goes back to 1816, and the Marshall court, although in this particular case, Marshall recused himself. This was the case of Martin v. Hunter’s Lessee—the first case to assert ultimate Supreme Court authority over state courts in matters of federal law, and at its essence, an early blow against the doctrine of nullification.

Famed legal historian Charles Warren called this decision “the keystone of the whole arch of Federal judicial power.”

Here’s the background…

Lord Fairfax held land in Virginia. He was a Loyalist and fled to England during the Revolution. He died in 1781 and left the land to his nephew, Denny Martin, who was a British subject. The following year, the Virginia legislature voided the original land grant and transferred the land back to Virginia. Virginia granted a portion of this land to David Hunter.

By invoking the Jay Treaty, the US Supreme Court declared that Fairfax was so entitled, but the Virginia courts, where the suit arose, refused to follow the Supreme Court’s decision. As it happens, the Virginia Supreme Court’s refusal was based on its own interpretation of the Jay Treaty, and not that they should or should not follow the US Supreme Court.

Martin appealed, and the US Supreme Court rejected the claim that Virginia and the national government were equal sovereigns. “Reasoning” from the Constitution, Justice Story affirmed the Court’s power to override state courts to secure a uniform system of law and to fulfill the mandate of the Supremacy Clause.

It is noted that the Supremacy Clause in Article VI merely says that the judges in every state shall be bound by the constitution, but it is quite a leap from that to the notion that the US Supreme Court can overturn all state decisions, and was even worse to read that into Article III.

Moreover, by 1816, the Jay Treaty was moot given the War of 1812; and Marshall had a good reason to recuse himself. He and his brother had signed a contract with Martin to buy the land in dispute. Of course, this man—who still holds the record for longest tenure for a chief justice—would have no influence on his associate justices, would he? That’s why they voted 6-0 for Martin and thus their colleague Marshall.

One more rotten Supreme Court “landmark” decision, and an early guidepost on the road to Federal tyranny.