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The Battle Still Rages

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Timothy Baldwin
Campaign For Liberty
Monday, Sept 21st, 2009

The battles in America have almost gone unchanged since 1936 — and even, before. They are battles for the mind, the soul and the heart. They are battles of philosophy and understanding.

On May 26, 1936, constitutional professor of Princeton University, Edward Samuel Corwin, penned these words in his book, “The Commerce Power Verses States Rights: Back to the Constitution”:

“Back to the Constitution” is the motto of this small volume, and by “Constitution” is meant the Constitution of George Washington, Alexander Hamilton, James Madison (the Madison of 1787, not of 1798, nor of 1829), and of John Marshall; not the “interested sophistications” of those later foster fathers of the Constitution, certain distinguished counsel who about 1890 began, with the too frequent aid of a sympathetic Court, to enmesh the powers of the National Government in “a network of juridical nicities”. (Edward Samuel Corwin, “The Commerce Power Verses States Rights,” Preface, (Princeton University Press, 1936).

Corwin reveals what few in politics would be willing to admit today: that he is biased — biased towards a constitutional view which favors boundless national expansion, regardless of state sovereignty. Corwin admits that by “back to constitution” he means the constitution that Washington, Hamilton, Madison (in 1787) and Marshall supposedly advocated. Corwin’s connecting his view of the constitution to these great men of American history certainly discredits and distorts their positions.

None of these American statesmen would have prescribed to the boundless limits of federal power that Corwin and many socialists today would advocate. And even though each (to their own separate degree) advocated for an active and energetic federal government regarding matters of interstate commerce, none advocated for federal usurpation over the states’ sovereign power to regulate its internal polity and commerce.

So what does Corwin suggest is getting “back to the constitution”, which he claims these great men of history would support? In part, this:

“Let [the interpretation of the constitution] recognize that the power to regulate commerce among the States is the power to govern it, and hence the power to restrain it; that this power, like all other powers of the National Government, is not limited by State power, but OVERRIDES ANY STATE POWER WITH WHICH IT COMES INTO COLLISION; that this power, moreover, is reposed by the Constitution in Congress and not in the Court, and so may be exercised for such objectives as Congress may select to promote, whether the Court likes them or not; that Congress has, in short, precisely the same power to prohibit any branch of commerce among the States as it has to prohibit any branch of foreign commerce, in furtherance of what it deems to be the general welfare.” Ibid., 267-268. (Emphasis added).

  • A d v e r t i s e m e n t

To summarize: Corwin advocates that the states possess no powers (internal or otherwise) which should limit the powers of Congress from ruling with a rod of iron against the states for the “general welfare”, at its discretion. This can truly be categorized as a limitless power of the federal government to control the internal affairs of the states, so long as Congress subjectively feels it promotes the “general welfare of the nation”. Did the people of the states create this kind of government when the thirteen states ratified the constitution? Certainly the United States Supreme Court during Corwin’s day did not.

The Battle Still Rages  290509banner

In fact, Corwin’s book cited above is entirely a response to the United States Supreme Court ruling in Hammer v. Dagenhart (1918) regarding Congress’ power to regulate intrastate commerce. In this “Child Labor Case”, Justice Day states the following as a supporting rationale to overrule a Congressional act regulating the states’ ability to transport products made by “child labor”:

“The grant of authority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the States in the Tenth Amendment to the Constitution.***The maintenance of the authority of the States over matters purely local is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted by the Federal Constitution.” 247 U.S. 251, 274, 275.

This United States Supreme Court in 1918 truly follows what Justice John Marshall says in Gibbons v. Odgen in 1824: that matters that of internal commerce are matters solely within the sovereignty of the states. (See cite below). Contrarily, Corwin’s proposition of getting “back to the constitution” means that the National Government should pay no mind or respect to “purely local” matters of the states and should regulate any and all commercial matters “among the states”, regardless of the tenth amendment.

Unfortunately, Corwin’s proposal practically became an accepted interpretation of the constitution by the United States Supreme Court beginning in the “Constitutional Revolution of 1937″, when the United States Supreme Court upheld several Congressional Acts regulating “purely local” matters (which was able to be accomplished after Franklin D. Roosevelt was able to appoint new supreme court justices — The “New Deal” Court — to the bench during his administration). Undoubtedly, the overall attitude of the American people and politicians favored (or at least were not opposed to) federal government intervention in “purely local” matters because of the intense sufferings of the Great Depression. Consequently, the three branches of the federal government took advantage and encroached upon the powers of the states in an unprecedented manner. Today, we are facing the consequences.

While I have previously expounded upon former Chief Justice Marshall’s tendency to increase federal power, his supreme court opinions demonstrate that there is still a line of separation between Congress’ power to regulate commerce “among the states” and commerce which is internal to the state. (Gibbons v. Odgen, 22 U. S. 194 (1824), “It is not intended to say that these words ["among the states"] comprehend that commerce which is completely internal.”). To suggest that state sovereignty always give way to the national power is to completely do away with the line. It is in fact to destroy even the natural law of self-preservation. A state may even engage in war when it is being attacked by invasion. If you accept Corwin’s proposition of “getting back to the constitution”, you might as well throw the tenth amendment in the dump, along with the freedom it protects.

As for the founding fathers, Washington, Hamilton and Madison (of 1787), did they advocate that the federal government possessed power in excess of state sovereignty — in disregard to the tenth amendment? Did they propose that state sovereignty was not to impose any limits on the delegated powers of Congress? Did they believe that the Constitution granted to Congress the same latitude of power to regulate the internal affairs of a state than it does to enter into treatise with foreign nations? And if they did believe this, did the people who ratified the constitution believe this? Did the states who called the conventions for the people to send their delegates to debate the constitution believe this? Did the state delegates to the constitutional conventions believe this?

Before revealing some of the ideology of these founders, it must acknowledged that Corwin’s equating Congress’ power to regulate the nation’s foreign affairs to its power to regulate the internal commerce of the states is ludicrous and incorrectly reflects the history of the United States of America’s union from 1776 to 1787. It has long been recognized that the states never had the same power regarding foreign affairs and commerce that they did in intrastate and interstate commerce. As they fought their war for independence in 1776, the colonies gladly conceded that King George had the power to regulate its commerce with foreign nations. But they did not concede that King George had the power to regulate their trade with the other colonies, but that such was a power belonging to the colonies solely. Thus, when the states formed the Articles of Confederation, they most certainly had no problems with conceding foreign affairs to the power of Congress. They did not, however, concede this power solely to Congress. To regulate commerce for themselves, they deemed a sovereign right.

It was only upon necessity that they even considered calling a constitutional convention to reconsider Congress’ power to regulate interstate commerce. How can it be reasonably argued that the states’ intent was to give Congress the power to also regulate their internal commerce? This makes absolutely no sense and does not comport to the sentiment regarding state sovereignty during that day.

Even a quick observation and comparison of the Articles of Confederation and Constitution of the United States reveals that they are strikingly similar and require similar analysis: they were written and ratified only eleven years from each other! In such a short period of time, would the founders and all of the states have abandoned the confederate structure and principles that virtually all members of society believed to be the best method to protecting freedom? They did not, and they admitted that they did not abandon these principles.

The following are just a sample of strikingly similarities between the Articles and Constitution:

1. -Articles of Confederation, Article 1: “The Stile of this Confederacy shall be “THE UNITED STATES OF AMERICA.” (Emphasis added).

-United States Constitution, Preamble: “We the People of the United States. . . do ordain and establish this Constitution for the UNITED STATES OF AMERICA.” (Emphasis added).

2. -Articles of Confederation, Article 2: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.�

-United States Constitution, Amendment 10: �The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.�

3. -Articles of Confederation, Article 3: “The said States hereby severally enter into a firm league of friendship with each other, for their COMMON DEFENSE, THE SECURITY OF THEIR LIBERTIES, AND THEIR MUTUAL AND GENERAL WELFARE, binding themselves to assist each other.”(Emphasis added).

-United States Constitution, Preamble: “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the COMMON DEFENSE, PROMOTE THE GENERAL WELFARE, AND SECURE THE BLESSINGS OF LIBERTY to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.” (Emphasis added).

4. -Articles of Confederation, Article 4, clause 1: “[T]he free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice excepted, shall be entitled to all PRIVILEGES AND IMMUNITIES of free citizens in the several States.” (Emphasis added).

-United States Constitution, Article 4, clause 1: “The Citizens of each State shall be entitled to all PRIVILEGES AND IMMUNITIES of Citizens in the several States.” (Emphasis added).

5. -Articles of Confederation, Article 4, clause 2: “If any person guilty of, or charged with, treason, felony, or other high misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power of the State from which he fled, be DELIVERED UP AND REMOVED TO THE STATE HAVING JURISDICTION OF HIS OFFENSE.” (Emphasis added).

-United States Constitution, Article 4, clause 2: “A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on demand of the executive Authority of the State from which he fled, be DELIVERED UP, TO BE REMOVED TO THE STATE HAVING JURISDICTION OF THE CRIME.” (Emphasis added).

6. -Articles of Confederation, Article 4, clause 3: “FULL FAITH AND CREDIT shall be given in each of these States to the records, acts, and judicial proceedings of the courts and magistrates of every other State.” (Emphasis added).

-United States Constitution, Article 4, Section 1: “FULL FAITH AND CREDIT shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” (Emphasis Added).

7. -Articles of Confederation, Article 6, clause 2: “No two or more States shall enter into any treaty, confederation or alliance whatever between them, without the consent of the United States in Congress assembled.”

-United States Constitution, Article 1, Section 10, clause 1: “No State shall enter into any Treaty, Alliance, or Confederation.”

8. -Articles of Confederation, Article 6, clause 3: “No State shall LAY ANY IMPOSTS OR DUTIES, which may interfere with any stipulations in treaties, entered into by the United States in Congress assembled.” (Emphasis added).

-United States Constitution, Article 1, Section 10, clause 2: “No State shall, without the Consent of the Congress, LAY ANY IMPOSTS OR DUTIES ON IMPORTS OR EXPORTS.” (Emphasis added).

9. -Articles of Confederation, Article 6, clause 6: “No State shall ENGAGE IN ANY WAR without the consent of the United States in Congress assembled.” (Emphasis added).

-United States Constitution, Article 1, Section 10, clause 3: “No State shall, without the Consent of Congress. . . ENGAGE IN WAR, unless actually invaded, or in such imminent Danger as will not admit of delay.” (Emphasis added).

10. -Articles of Confederation, Article 9, clause 1: “The United States in Congress assembled, shall have the sole and exclusive right and power of determining on peace and war. . . entering into treaties and alliances.”

-United States Constitution, Article 1, Section 8, clause 11: “Congress shall have the power to declare War.”

11. -Articles of Confederation, Article 8: “[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

-United States Constitution, Article 6, clause 2: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

12. -Articles of Confederation, Article 8: “[T]he Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”

-United States Constitution, Article 7: “The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

Of course there are many more parallels than just these. Looking at the striking similarities between the Articles of Confederation and the United States Constitution, it is a wonder how an unbiased studier of American jurisprudence could even suggest that the founders and the people of the states intended to abandon the principles of dual sovereignty between the States and Federal government and suggest that the US Constitution was designed to give Congress the power to regulate commerce however it saw fit for the general welfare when it is quite apparent that the founders and the people of the states did not intend to abandon the principles of state sovereignty regarding all matters of internal concern and polity. Moreover, when studying not only the comparisons of the Articles and Constitution, but also the necessary involvement of the States to sustain the Federal government (which has been recognized by virtually every United States Supreme Court), the truth becomes very known that the federal government was never designed to encroach the powers the states possessed at the time the Constitution was ratified.

So when studying the rule proposed by Corwin (that the power to regulate intrastate commerce of the states is as vast and limitless as Congress’ ability to regulate foreign trade), the question becomes, did the founders (Washington, Hamilton and Madison) believe that Congress has such a power? Let us embark on the subject in a subsequent article.

What must be established to this point is that “getting back to the constitution” does not mean the same thing to different people. But does that mean that everyone’s opinion is correct? Of course it does not.

Even Francis Lieber (attorney for Abraham Lincoln) expresses this in his book, Principles of Interpretation and Construction. ([Boston, MA, Little and Brown Co., 1839], 66).Every constitution is based upon principles — principles derived from a source that is supposed to be higher than the constitution itself — principles that when executed in the constitution and in the laws therefrom produce the most freedom with the least risk of tyranny to the people.

Thus, while it is obvious that people like Corwin advocate that “getting back to the constitution” means expanding national power to unthinkable bounds, the conclusion of their being right or wrong does not necessarily rest on whether or not Washing, Hamilton and Madison (of 1787) desired to form an ever-powerful national government to the exclusion of state sovereignty. Rather, the answer of the true sense of the constitution lies in the principles of freedom upon which those words in the constitution rest. Of course, once you reach the conclusion founded upon the principles you believe in, conflict necessarily arises with those who disagree.

This article was posted: Monday, September 21, 2009 at 3:32 am





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