Summary of Some Principal Areas of Unconstitutional Actions by the Supreme Court
While the Supreme Court has arrogated power to itself and the federal government by various devices and even with no claimed authority, the following are several particularly notable areas of unconstitutional extension of federal power.
Before the Constitution was adopted a major problem was states interfering with the flow of commerce such as by imposing tariffs on goods from other states. To facilitate the free and unimpeded flow of commerce across state lines the Constitution gives the federal government the power to regulate interstate commerce.
The Supreme Court has expanded this power far beyond its intended scope and used it not just to facilitate the flow of commerce but to authorize federal control of people and property within the individual states even to controlling what a farmer can grow to feed his own livestock on his own farm.
The Framers of the Constitution intended that the federal government use tax money to pay the debts incurred by the states to prosecute the war with England. Although they agreed that the war power was to be a federal power, there was concern that the overall limited nature of the powers granted the federal government might prevent such payment because those debts were incurred by the individual states rather than the federal government.
The Framers intent that the federal government be empowered to pay those debts was based on their conviction that those debts really were for the general welfare of the whole country rather than the individual states. To avoid the question of whether tax money could be used to pay those debts the Framers added the words "to pay the Debts and provide for the common Defence and general Welfare of the United States" to the taxing power. This was intended as a clarification rather than an expansion of federal power since the delegated powers included the war power.
When the Constitution was presented for ratification one of the objections raised was that federal powers were broader than represented because the welfare clause authorized the federal government to spend tax money for anything that was for the general welfare. This charge was answered by Madison in Federalist No. 41. He pointed out that the entire [p. 83] section was a single sentence, including the limitations and that if the welfare clause were a grant of power as claimed, the rest of the sentence would have no meaning.
After the Constitution was ratified the claim was again made that the welfare clause was a separate grant of power. Of that proposed interpretation Madison wrote:
I consider it . . as subverting the fundamental and characteristic principle of the Government . . . and as bidding defiance to the sense in which the Constitution is known to have been proposed, advocated, and adopted. If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, the Government is no longer a limited one. (Prophets, Principles and National Survival, by Jerreld L. Newquist, p. 346)
More than a century later during the depression of the 1930's, in violation of the text of the Constitution, the intent of the Framers and the representations made to secure ratification of the Constitution by the people, the Supreme Court held that the welfare clause was a separate grant of power that authorized the federal government to act in areas outside the scope of the limited delegated powers set forth in the Constitution.
After the 13th Amendment freed the slaves the South engaged in various discriminatory devices against the blacks. Many people who supported adoption of the 14th Amendment were motivated by a desire to protect the newly freed slaves against those devices.
Not long after the 14th Amendment was declared adopted, an attempt was made to induce the Supreme Court to interpret it as giving the federal government supervisory authority over local laws not related to the newly freed blacks. The Supreme Court held that the 14th Amendment was limited to protecting the freed slaves and did not give the federal government general power to correct grievances within the states.
This was in harmony with representations made when the 14th Amendment was proposed that it was limited to protecting the newly freed slaves and did not change the federal system.
Many years later in our time the Supreme Court reversed that position and has used the 14th Amendment as authority for itself exercising supervisory authority over matters that under the Constitution and its own prior decisions were recognized as solely up to the states to decide. [p. 84]
This was clearly contrary to the intent of the 14th Amendment which never would have been ratified if its objective had been to fundamentally alter the nature of the federal system and subject internal state matters to federal supervision and control.
Subterfuge to Evade Bill of Rights.
A recent development is permitting evasion of the protections of the Bill of Rights by a flagrantly transparent subterfuge. The protections of the Bill of Rights apply to people. To avoid those protections a pretense has been used that crimes are attached to inanimate objects.
In such cases a person's property is regarded as a criminal suspect rather than the person himself. Then since the Bill of Rights protections apply only to people, the person's property is confiscated, often on mere suspicion with no charge ever being filed.
The net result is that a person's property is confiscated arbitrarily with none of the Bill of Rights protections. This is a practice of oppressive tyrannical government, not free constitutional government.
This evasion of Bill of Rights protections is said to be necessary to fight the drug war, but it is used against ordinary citizens to an alarming extent. Many innocent people never do get their property back. This unjust result occurs because to do so they have to undertake an expensive lawsuit in which they have the burden of proving that no crime was committed, instead of the government having the burden of proving that they committed a specific crime.
This practice cannot be condemned too strongly. It represents a major retrogression to a grave danger the Bill of Rights provisions were designed to protect against. That danger is the ability of public officials arbitrarily to intimidate and silence those who would speak out against their policies or actions. [p. 85]