Chapter XII

FOUR MAGIC WORDS

With the advent of the new justices appointed by the President to the Supreme Court from 1937 onward, those four words in the Constitution we have been considering—“general welfare” and “interstate commerce”—took on wholly new meanings. And it was thus that the collectivist revolutionaries tortured and twisted the Constitution—without any change by means of its lawful process for change—to legalize all the unconstitutional projects of the collectivist New Deal.

Among the powers delegated to the federal government was the authority “to regulate commerce with foreign nations and among the several states and with the Indian tribes.” As we have seen, a long line of decisions had determined clearly that the word “commerce” referred to trade—the sale, transportation and delivery of goods. We have seen that the authority of the federal government over commerce did not begin until goods moved across state lines.

To illustrate how far afield this new Court went, it must be clear that a small clothing manufacturer making clothes within a state and neither shipping nor selling them outside the state, is in commerce, but by no stretch of words is he in “interstate commerce.” In the case of Friedman-Harry Marks Clothing Company, in 1937, the Court held that the business of making clothes must be considered as a whole—it must be looked on not as an activity by one small manufacturer, but as an industry in which thousands of big and little producers are engaged in a number of states. Oddly, this had never occurred to any Supreme Court justice in 148 years. Therefore, said the Court, even a small intra-state manufacturer, operating wholly within a state, must be considered in interstate commerce because there are countless others in the same business in a number of other states. The industry must be considered as a unit. If this is true, there is no commerce which is not interstate commerce. Justice McReynolds, in a dissenting opinion, said: “A more remote or indirect interference with interstate commerce or a more definite invasion of the powers reserved to the states is difficult, if not impossible, to imagine.” 27 In the previous year, in a decision affecting the coal industry, instead of a clothing company, Justice Hughes had concurred in an opinion invalidating the Guffey Coal Act and laying down precisely the same principles as Justice McReynolds. Yet, after this, he concurred in the opinion in the case of the Marks Clothing Company.

Then in 1942 the Supreme Court literally wiped out state boundaries as a limitation on federal power. What could be more essentially an internal operation within a state than a loft building in a New Jersey city? In such a building one of the tenants was engaged in the manufacture of clothing and a large part of its product was sold outside the state. This one firm was clearly in interstate commerce. But in this case, Justice Frankfurter, for the Court, held that not only was the clothing firm in interstate commerce, but the building in which it was just one tenant was also in interstate commerce and thus subject to federal legislation. And because the building was in interstate commerce, the man who ran the elevator was also in interstate commerce as well as the women who washed the windows. Fantastic as was this finding, Frankfurter declared it did not exhaust the extent of federal “interstate power.”28

If this government is a government of “limited and delegated powers” as has been held time and again throughout our history, from what source did the Congress suddenly derive this power? It gets its powers only from the Constitution. No such power in 150 years was ever delegated by the Constitution or claimed by Congress. Now, suddenly, Justice Frankfurter and his recently appointed New Deal justices, usurped the most fundamental powers of the nation and proceeded to confer powers on the Congress that no Congress or Court had ever claimed. In a later decision this Court held that this same authority applies to porters, elevator operators and watchmen in another office building.29 If there is anything in this world that is utterly local and out of even the “stream of interstate commerce” it is an elevator operator in a local office building who travels up and down from one floor to another rather than back and forth across state lines.

Whatever power these new judges lacked under the “interstate commerce” clause, they squeezed out of the “general welfare” clause of the Constitution. The grant of power in Article I, Section 8 of the Constitution “to provide for the common defense and the general welfare of the United States,” as we have seen, did not mean that Congress could do anything which in its opinion would contribute to the general welfare. The Constitution took great care to make this clear and actually to enumerate the things Congress could do to “provide for the general welfare”—borrow money, regulate commerce among the states and foreign nations, coin money, establish post offices, declare war, raise armies and a navy, and several other acts which were not left to guesswork but were specifically enumerated.

There had never been any pretense by Congress that it could do whatever seemed to it good for the general welfare. It could do only those things enumerated in the Constitution. But the new Court proceeded to give legality to clearly unlawful constitutional acts by the Congress by twisting the “general welfare” clause to mean that the federal government could pay subsidies to farmers, give handouts to the indigent, support schools and pay teachers in the states, build hospitals, provide medical care and support all sorts of activities clearly within the province of the states—all because they were designed, in the opinion of any passing Congress, “for the general welfare” of the people.

Of course, this distortion would not have been possible if years earlier our people had not made the fatal mistake of passing the 16th Amendment to the Constitution permitting Congress to impose income taxes without limit. There had been agitation for some time for a federal income tax, which never got anywhere. But as it became stronger, the 16th Amendment was offered, strangely enough, in what they thought was a completely objectionable form by the enemies of the income tax, and opposed by its friends. Senator Nelson W. Aldrich offered the amendment believing it would be defeated and thus end the agitation. Sereno Payne, who offered the bill in the House, denounced it from the floor, and Cordell Hull, the leading advocate of income taxes, denounced the measure as a fraud. Thereafter, to the amazement of everyone, the amendment was approved by the states with unparalleled speed. It became part of the Constitution just as President Wilson was being inaugurated as President of the United States. Thus the enemies of the law proposed a constitutional amendment in its most objectionable form permitting the federal government to impose income taxes without limit, expecting it would be defeated. They actually offered a plan for unlimited income taxes in order to defeat a proposal for a four percent income tax.30

After the passage of the 16th Amendment, the federal government had the power to impose an income tax in any amount determined by Congress. But no amendment was passed then or since in any way enlarging or increasing the number of purposes upon which the federal government could spend the money thus collected. The first income tax levied was one percent on incomes of $4,000 and over, with a surtax of from one percent to six percent on incomes starting at $20,000. However, the power to tax without limit was there, although it was used sparingly at first. Today we are confronted with tax rates that start at 20 percent on the lowest incomes and rise to confiscatory proportions—as high as 91 percent on incomes over $300,000. The Income Tax Amendment, of course, would never have had a ghost of a chance for passage if it had been believed that rates even one-fourth as high as these were contemplated. Sixteen years after the passage of the Amendment, the federal government was taking roughly four percent of our national income. Today it takes 25 percent and even this is insufficient to meet its tremendous expenditures. Hence it turns to borrowing billions on a fantastic scale to meet its appalling deficits.

Thus we see that our once severely limited federal government has taken into its hands three weapons which it has used unsparingly to change and distort the American Republic completely: (1) The income tax, (2) the vague, unlimited authority conferred on it by wholly new definitions of the “general welfare” and “interstate commerce” clauses of the Constitution, and (3) a theory of endless borrowing and debt as a settled government policy.

The machinery of our government was looked upon for 148 years as an agency of power to protect the people in their rights, but was also recognized as an instrument of power from which the people must be protected. This was done by recognizing the great powers of government residing in the state republics, while in the federal government the greatly limited powers delegated to it were divided among three independent instruments of government—the legislative, the executive and the judicial.

But that Republic has ceased to exist. At a superficial glance, it looks the same. The words in the Constitution, save in one case, are the same. The exception is the Income Tax Amendment giving the government unlimited authority to confiscate every man’s income and spend it for him. But by a wholly lawless conspiracy between the President, the Congress and the Court, these words—clearly defined over and over for 148 years—have been endowed with wholly new meanings. The chief purpose of this has been to erect a massive central government possessing the power to plan and build and operate socialism in America. The vast and compulsive apparatus of government had been dismembered by our forefathers and its various parts entrusted to a variety of agencies, no one having in any dangerous degree sufficient power to oppress the citizen. Now that immense collection of machinery has been reassembled at the center, not by an amendment to the Constitution, but by the decisions of a group of judges who were put on the bench in a revolutionary maneuver to give to words in the Constitution wholly new meanings—meanings never dreamed of in the preceding 148 years. The great Republic of our fathers has ceased to exist at least for the time being. The state republics, indeed, remain. But the central government by a series of usurpations has assumed new and vast powers—so vast that the champions of this revolution insist that now the federal government has all the authority needed to organize and operate a socialist society.

27 NLRB v. Friedman-Harry Marks Clothing Co., 301 U.S. 58 (1937).

28 Borden v. Borella, 325 U.S. 679 (1945).

29 A. B. Kirschbaum v. Walling, 316 U.S. 517 (1942).

30 The claim is made by the apostles of what is called the “new constitutionalism” that the first step in expanding the power of the federal government was made by the sword in the Civil War. This is, of course, without any base in history. There was not a line in the Constitution which authorizes a state to withdraw from the Union. The Constitution itself was a solemn pact between the states to form a central government on certain principles, and nowhere is there any provision in the instrument for the withdrawal of a state from the Union.