This is the thirteenth in a series outlining where our lawyer politicians have either not upheld the letter of the law as stipulated in the Constitution or misinterpreted its intent. This essay will continue the series started with the first, covering the powers given to the Congress of the United States by the Constitution.
Article 1 Section 8 reads, the Congress has the power “to make rules for the government and regulations of the land and naval forces”. Next to its abuse of the regulation of commerce power, this power has allowed the political parties to stifle the enactment of legislation and to thwart the collection of funds to pay the cost of government. Needless to say, if the Congress had adhered to the limitations imposed by the Constitution this power would have been somewhat sterile in its impact. When the limitations on Congressional activity was removed by the McCulloch vs. Maryland decision and Congress could then begin to raid the treasury on behalf of those who gave them the opportunity it became the means for the ruling party to impede and actually stop the opposition party to do the same for its supporters.
None of this would have had any effect if the provisions of Article 1 Section 9 were not also totally ignored. This prohibition states that “no bill of attainder or ex post factor law be passed”. This provision is almost a direct extraction from the terms drawn between the Lords of England and the King in the Magna Carta. The Lords most feared being singled out (attained) by the King for punishment of alleged disloyalty or prohibited from acts that were once acceptable or that were not treated as either acceptable or unacceptable. In simple terms, the law had to apply to all the Lords equally and something previous not subject to the law could not then be prohibited. Nearly all of the laws passed by the federal government since 1819, the date of the McCulloch vs. Maryland Decision fall into these two categories of prohibitions. How did we come to this?
Does the saying one hand washes the other come to mind. That is how nearly all legislation is passed. You vote for my bill that favors my constituents and I’ll vote for yours, after all it is someone else’s money. The entire tax code is made up of bills of attainder. The Volstead Act and even the eighteenth amendment prohibiting the manufacture and distribution of alcohol are prohibited ex post facto laws. The banning of habit forming drugs is yet another example the consequences of which are making the lawlessness of the 1920s-look like child’s play.
This abuse of power has gotten out of hand but can become considerably worse if it were not for the fact the two factions are often unable to capture both houses of Congress and the Presidency. It has happened once in the 1930s and the Democrats seized the opportunity to pass legislation that was most damaging to the nation’s economy and still passed the constitutionality test in the Supreme Court that then also had 9 Democrat appointed justices. The next time this situation occurred, in the early 1990s, the Republicans did not know how to handle this new-found plum, having spent so many years, nearly 40, of being in the minority. The real damage had already been done and the genie could not be forced back into the bottle.
Despite Thomas Jefferson’s protestations not all men are equal, even under the law, which Jefferson conveniently left out of the quote he stole from George Mason. Men and women are not equal. They don’t look alike, have equal physical capacities or even features, particularly as regards organs of reproduction. They are both however necessary for the production of progeny and even then, only for specific periods of time. It is for the continuation of the human species that they are endowed with the urge to create progeny and the female only for a brief period each month and for a limited number of years. Males have been known to be able to fertilize the egg of a woman well into their 80s. Only judgement and self-control keeps the mating from producing more progeny than they can support. In order to accomplish this natural law must be modified to define the limits and punish those who exceed them.
The rules of the Congress give the party in power an inequality as regards the other and enable them to exploit their agenda. When the power in all three branches is held by one party, as in the1930s they are free to embed in stone an agenda that favors their supporters at the expense of their opponents. That situation is now reversed against the Democrats but because they have enshrined the principles of a redistribution of wealth through entitlements, the Republicans cannot reverse the consequences of this trend.