The “Natural Progress of Things…”

[In my last post, I told the story of Roscoe Filburn, the Ohio farmer who was fined for growing his own wheat. In this post, I tell the story of how the Federal Government got the power to fine Roscoe. The last post in the series will tell the story of limitations finally being applied to that power.]

“The natural progress of things is for liberty to yield and government to gain ground.” Thomas Jefferson, letter to Edward Carrington, Paris, May 27, 1788.

Jefferson saw the growth of government as water collecting on a flat roof. It will find the slightest crack and, over time, work its way in with greater and greater consequences. That is how the Federal Government gained the power to fine Roscoe Filburn.

Before the Constitution, the Articles of Confederation had created a commerce environment which invited every State to discourage trade with other States in order to protect their own products. And, that’s what they did, at the expense of economic growth.

The Founders wrote the Interstate Commerce clause of the Constitution to put an end to that. This clause said simply, “The Congress shall have the power… to regulate commerce… among the several States…”

We know from the Federalist Papers and other writings that, by “commerce,” the Founders meant the transport or movement of goods and not their production. So, the Interstate Commerce clause gave Congress the power only to pass laws regulating transport between states.

After the Supreme Court gave itself power to interpret law and the Constitution in Marbury v. Madison, it wasn’t long before the first case under the Interstate Commerce clause came to them.

In 1808, the State of New York had granted to Robert Livingston and Robert Fulton (inventors of the steamboat) the sole right to ship goods to and from New York by water – a monopoly. Livingston and Fulton sold a franchise to Aaron Ogden and Thomas Gibbons in 1815 to operate steamboats across the Hudson River to New Jersey.

In 1818, Gibbons broke off from Ogden and began operating his own steamboat between New York and New Jersey in violation of the New York monopoly law. Ogden sued Gibbons and the case went to the Supreme Court.

The Supreme Court struck down the New York monopoly as a restraint of interstate commerce under the Interstate Commerce clause. In so doing, the Court ruled that the power to regulate interstate commerce is, “complete in itself… and acknowledges no limitations,” other than those spelled out in the Constitution. That was all Congress needed to expand its power in the ensuing years, like water into a roof crack.

The Northern Belle was a passenger steamboat that operated within Iowa as a private company in the 1860’s. It also carried products within Iowa that had been shipped from other states or were to be shipped to other states. Federal Government agents inspected those products as goods in interstate commerce and insisted that the vessel was subject to other regulations on interstate commerce. The Northern Belle company sued and the case reached the Supreme Court in 1870 in Northern Belle v Robson.

In Robson, the Supreme Court found in favor of the Federal Government and granted the inspection and regulation powers under the Interstate Commerce clause. The Court ruled that, despite operating only within the state, the Northern Belle’s transport of products that had come from other states or could go to other states meant that it had a potential impact on interstate commerce. So, interstate commerce then included the handling of anything produced in another state.

The Robson case opened the door for Congress to adopt more sweeping powers. In 1887, the Interstate Commerce Commission was created. Along with its creation, the law gave the Commission the power to force the railroads into an association for the purpose of regulating prices and practices.

Then, in 1890 Congress passed the Sherman Act, a law that prohibited companies from cooperating to set prices and create monopolies. It should be noted that the Sherman Act took no action against regulation and price fixing by the Interstate Commerce Commission. So, Congress could regulate commerce and fix prices, but private companies could not.

Now, it was not a straight line from there to Congressional omnipotence. In 1895 in US v EC Knight, the Supreme Court stopped the Federal Government from using the Sherman Act to prevent a merger of sugar refineries. And, in 1918 in Hammer v Dagenhart, the Court ruled that the Commerce clause didn’t extend to control of states in their use of police power over local manufacturing. But, the water kept searching for more cracks and, in 1937 it found another.

In NLRB v Jones and Laughlin Steel, the Supreme Court upheld the National Labor Relations Act and, in so doing, forced employers to engage in collective bargaining. While Jones and Laughlin made steel in-state, the Court ruled that the actions and materials necessary for that had an effect on interstate commerce. They ruled that having an effect on commerce meant “…tending to lead to a labor dispute burdening or obstructing commerce.”

The final straw leading to the fining of Roscoe Filburn came in 1942 with the Wrightwood Dairy case. The Secretary of Agriculture had set prices for milk sold strictly within a state. The Supreme Court upheld the Secretary’s action ruling that, “The marketing of intrastate milk which competes with that shipped interstate would tend seriously to break down price regulation of the latter.”

Wrightwood Dairy opened the way for the Federal Government to control all commerce and production. But, what about activities that are not commerce? That’s where Roscoe Filburn came in. He simply grew a little wheat for his own use and got fined for it because, in so doing, he removed himself from the commerce of buying from someone else, thus theoretically reducing demand and price (see my blog – The Story of Poor Roscoe Filburn).

Is there, then, no limit on the power of Congress to control our lives? In my last blog on the subject, I’ll tell the story of recent assumptions of power and of the first traces of the Supreme Court saying “far enough.”

The Story of Poor Roscoe Filburn

[This is the first of a three-part post on how the Interstate Commerce clause has been stretched to extend the power and authority of the Federal Government beyond its Constitutional limits.]

Roscoe Filburn was an Ohio farmer who got steamrolled in 1942 by the Federal Government and the U.S. Supreme Court under the Interstate Commerce clause of the Constitution.

Roscoe had a small farm on which he planted about 24 acres in wheat. Of that, he sold 12 acres’ worth and kept the rest for his livestock and for his own consumption.

In 1940, the Federal Government, under the authority of the New Deal’s Agricultural Adjustment Act, ordered Roscoe to plant no more than 11 acres in wheat. The goal was to keep prices high through scarcity and each farmer, big and small, had a limit calculated for them by the Federal Government.

When the Federal Government learned that Roscoe had exceeded his limit, they fined him (imagine the extent of inspection for them to have found that out). Roscoe refused to pay and the government took him to court, reaching the Supreme Court in 1942 in a case named Wickard v. Filburn.

Roscoe argued that the wheat he had grown above the government’s limit was for his own use and, therefore, did not affect interstate commerce. Accordingly, he said, the Interstate Commerce clause of the Constitution did not apply.

The Federal Government made two claims. First, they claimed that, because Roscoe had grown extra wheat for himself, he did not have to buy it – thus lowering the demand for wheat on the open market and, thereby, affecting interstate commerce and the government’s authority.

Second, the Federal Government claimed that Roscoe could have sold the extra wheat instead of using it himself. This would have put 13 additional acres worth of wheat on the market – thus lowering the price for wheat generally and, thereby, affecting interstate commerce and the government’s authority as well.

By 1942, the Supreme Court had membership that was very much to the Federal Government’s liking. While President Franklin Roosevelt’s earlier attempt to pack the Court with extra judges was found unconstitutional, he was able to appoint like-minded judges to vacancies which came up in the interim.

This Court ruled against Roscoe unanimously. In their Opinion, they said that, by growing his own wheat, he was competing with wheat in the open market and, therefore, was engaging in interstate commerce.

The Court went further to say that the denial of Roscoe’s individual right to feed himself and his family was justified in order to protect the interests of all the other farmers in the country, i.e. price supports. The Federal Government’s authority to control individuals’ lives to such an extent was upheld.

But, you might say, principle of governmental authority aside, this was only a tiny, tiny amount compared with all the wheat grown and put up for sale. The Court said that it didn’t matter. Under the Court’s interpretation, it is the nature of the thing that is at issue, not the extent. Roscoe could have grown only a quarter of an acre more and the Court still could have ruled against him. This allowed the Court to weigh the theoretical total effect of all farmers’ personal use wheat on the market, not just Roscoe’s alone. In other words, if we let one “get away with it,” they’ll all do it.

Now, what if Roscoe had sold his extra wheat instead of keeping it for himself? An amount that small, including that of farmers in other localities, would have gone into local markets, thus making it intrastate commerce and not interstate commerce. But, by that time, Supreme Court decisions had chipped away any notion that there was a strictly intrastate commerce market in any product that could be found in more than one place. The Court ruled that Roscoe’s wheat would have had “a substantial effect in defeating and obstructing (the Government’s) purpose.”

The Supreme Court’s ruling in Roscoe’s case opened the door to governmental regulation of virtually all economic activity through the Interstate Commerce clause. In fact, much of modern social interaction has now been found by the Supreme Court to be interstate commerce and, thus subject to control by the Federal Government. Union strikes on local businesses? Interstate commerce. Product safety? Interstate commerce. Civil Rights legislation? Interstate commerce. The growth of ones own medical marijuana? Interstate commerce,too. Until, that is, Alfonso Lopez, Jr. brought a pistol into his high school in 1992. We’ll get into all that in my next post on the subject.

Perfect Party Gift – “Pilgrims To Patriots”


The perfect party gift – my book, Pilgrims To Patriots, A Grandfather Tells The Story!  Instead of a bottle of wine, why not give Pilgrims To Patriots to your host or hostess at the next party?   Click here while you’re thinking about it:  direct from the publisher or on Amazon

Huge Governmentium Deposit Found In FEMA

President Obama stood at ground zero in New Jersey in the aftermath of Storm Sandy and promised that he would “cut the red tape and reduce the paperwork” in order to get relief to the victims as soon as possible. Even NBC aired the videotape of it.

This is the first direct admission by Obama of the presence of Governmentium in his administration, after many implied admissions. If he promised to cut the red tape, there must be red tape there to cut. And, if he promised to reduce the paperwork, there must be too much paperwork to begin with.

So, what did FEMA do? We know now from first person eyewitness accounts by victims that FEMA showed up, all right, but did nothing more than survey the damage, put checkmarks on their checklists and leave. Where’s the FEMA assistance, the victims are shouting? The answer? Drowned by Governmentium.

Oh, there’s assistance going out to the victims, but it’s coming from the States, the local governments (where Governmentium deposits are much smaller) and from private donations (probably the biggest source of assistance). Meanwhile, “assets” of the Federal Government, such as generators and tanker trucks full of gasoline, are being denied to the people in favor of assuring that the FEMA “resources” are not inconvenienced.

This is not the first sighting of Governmentium in the Obama administration or in the Bush and prior administrations, for that matter, and it will not be the last. But, one hopes that whoever is elected President will do a videotape replay to spot the Governmentium deposits in this calamity and remove them.

The Heaviest Element Known To Science

I came upon this at least four years ago. I did not write it (though I wish I had), but cannot find out who did. Near as I can figure it is anonymous. If someone can take credit for it, I will be happy to give it.

This report has been posted on various blogs from time to time, but not recently. So, I thought I would share it. We all need a laugh from time to time, especially in these times.

The Heaviest Element

Lawrence Livermore Laboratories has discovered the heaviest element yet known to science.  The new element, Governmentium (Gv), has one neutron, 25 assistant neutrons, 88 deputy neutrons, and 198 assistant deputy neutrons, giving it an atomic mass of 312.

These 312 particles are held together by forces called morons, which are surrounded by vast quantities of lepton-like particles called peons. 

Since Governmentium has no electrons, it is inert; however, it can be detected, because it impedes every reaction with which it comes into contact.  A tiny amount of Governmentium can cause a reaction that would normally take less than a second, to take from 4 days to 4 years to complete.

Governmentium has a normal half-life of 2-6 years. It does not decay, but instead undergoes a reorganization in which a portion of the assistant neutrons and deputy neutrons exchange places.

In fact, Governmentium’s mass will actually increase over time, since each reorganization will cause more morons to become neutrons, forming isodopes.

This characteristic of morons promotion leads some scientists to believe that Governmentium is formed whenever morons reach a critical concentration. This hypothetical quantity is referred to as critical morass.

When catalysed with money, Governmentium becomes Administratium, an element that radiates just as much energy as Governmentium since it has half as many peons but twice as many morons.

Faithless and Unpledged Presidential Electors

On October 16, I posted a piece about the Presidential Electoral College. I described the practice of Electors pledging themselves to candidates in advance of elections. I said that, with exceptions, Electors vote for those to whom they are pledged.

This raised the question of the exceptions to the practice. There are, in fact, many of them. They fall into two categories – Faithless Electors and Unpledged Electors.

Faithless Electors are Electors who have broken their pledges. There have been 158 of them in our history. The earliest was in 1796 when Samuel Miles, an Elector pledged to John Adams, cast a vote instead for Thomas Jefferson. This had no impact on the 1796 election, but would have in 1800 when Jefferson and Aaron Burr were tied in the Electoral College, throwing the election into the House of Representatives where Jefferson won.

The most disruptive case of Faithless Electors was in the election of 1836 when 23 Electors from Virginia changed their votes as a bloc. The Democratic Party had nominated Richard M. Johnson for Vice President, but the 23 Virginia Electors refused to vote for him. As a result, neither Vice Presidential candidate got a majority. This threw the decision into the Senate where Johnson was elected anyway – including the votes of both Virginia Senators. The Virginia Electors voted for Martin Van Buren for President, as pledged, and he was elected.

Other than the Virginia 23, most Faithless Electors have been cases of individual protest, error or candidate death and have not had an impact on the outcome. The case with the largest number of Faithless Electors was in the election of 1872 when 63 changed their votes. The race was between President Ulysses S. Grant, running for a second term, and Horace Greeley. Grant won, but Greeley died before the Electoral College met, so 63 of the 66 Electors pledged to him changed their votes. The other three voted for Greeley anyway and had their votes thrown out by Congress.

Unpledged Electors have been used mostly by the Democratic Party in the South in an effort to stop civil rights laws and desegregation. There have even been slates of Unpledged Electors that have run against pledged Electors. In 1956, for example, the State Democratic parties of Mississippi, Alabama, Louisiana, and South Carolina put up slates of Unpledged Electors. These slates got from 4 to 29 percent of the vote, but none made a difference in the outcome.

In 1960, the Democratic parties of Mississippi, Alabama and Louisiana put up slates of Unpledged Electors. Their plan was to block a majority for either candidate and to broker their votes in return for the withholding of civil rights efforts. Their plan failed when Kennedy won anyway.

The Alabama Democrats tried the same strategy again in 1964. It had the effect of Republican Barry Goldwater winning that State’s electoral votes. That not only ended attempts by a state to influence election outcomes through Unpledged Electors, but also began the trend of the southern States toward Republican majorities.

This year’s election could be close. If it is, it will be interesting to see if there are any Faithless or Unpledged Electors. Even if it isn’t close, it will be interesting to see if there are any.

Plumb and Pitcher

This is the third and last part of the Joseph Plumb Martin story – the Continental Army Private who recorded his experiences in a diary. He first titled it, “A Narrative of Some of the Adventures, Danger and Suffering of a Revolutionary Soldier, Interspersed with Anecdotes of Incidents that Occurred Within His Own Observation.” It didn’t sell well and fell from public attention. It was uncovered again in the 1960’s when it was renamed, “Private Yankee Doodle.”

It is unclear whether Plumb wrote his diary during or after his service in the War. He may have taken notes and filled them in later. What is certain is that he retired to Hallowell, Maine and had it published in 1830. By that time, he was 70 years old.

It is also certain from independent sources that Plumb was stationed at Valley Forge and served on the supply detachment that foraged the countryside. He also served at Fort Mifflin and at the Battle of Monmouth. In fact, he served right through to the end, commanding a fortifications platoon during the Battle and Siege of Yorktown.

Under any circumstances, Plumb provided us with a detailed and valuable account of the War as seen through the eyes of an everyday soldier, and we are indebted to him for that, as well as for his service.

Plumb and Pitcher

In June, 1777 Plumb found himself in the Battle of Monmouth. The fighting was fierce for the entire day. Observing the cannon fire being delivered by the Continentals, Plumb was eye-witness to an event that is now the stuff of Revolutionary War legend. He saw Molly Pitcher working a cannon and wrote his account of it:

“One little incident happened during the heat of the cannonade, which I was eye-witness to, and which I think would be unpardonable not to mention. A woman whose husband belonged to the artillery and who was then attached to a piece in the engagement, attended with her husband at the piece the whole time. While in the act of reaching a cartridge and having one of her feet as far before the other as she could step, a cannon shot from the enemy passed directly between her legs without doing any other damage than carrying away all the lower part of her petticoat…”

Plumb quotes her as having uttered a very salty remark at seeing the cannonball pass through with no damage, but I will leave that statement to your imagination.

If you wish to read more about Molly, click on the Sneak Preview tab above. Her story is the first chapter of my new book, Pilgrims To Patriots, A Grandfather Tells The Story.

Treaty Could Cede Taxing Power to UN

There is now a proposal before the United Nations that the United States enter into a treaty giving the U.N. the authority to tax our citizens. It is in the report, “In Search of New Development Finance” placed on the General Assembly’s agenda by the U.N. Economic and Social Council.

The treaty would authorize the U.N. to tax the following:

• Buying and selling of stocks, bonds and mutual funds.

• Buying and selling of the U.S. Dollar, the Euro, the Yen, and British Pounds Sterling.

• Airline tickets and carbon emissions.

• One percent tax on billionaires.

• Minerals taken from the sea floor more than 100 miles from any nation.

The U.N. report continues, “These proposals are subject to political controversy. For instance, many countries are not willing to support international forms of taxation, as these are said to undermine national sovereignty.” But, the report concludes, “…the time has come to confront the challenge.”

This sounds preposterous. Could we give to the U.N. the authority to tax us? Would it be constitutional?

The Constitution is clear on the power to make treaties. It rests with the President with the agreement of 2/3 of the Senate present (Art. II, Sect. 2). That means that the President can sign a treaty and it takes effect if 2/3 of the Senators who attend the session vote for it.

The Constitution doesn’t say 2/3 of all Senators must approve of a treaty; it just says 2/3 of those present to vote. If the Senate could be convened when only some attend, 2/3 of them could render it approved under the Constitution.

Would we have to obey such a treaty? After all, it would give away our sovereignty.

The Constitution is clear on that subject as well. Article VI says, “The Constitution…and all Treaties made…shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby;…”

Did the Founders intend a treaty like this to be legal? Probably the single best source of their intentions is The Federalist – that collection of the letters of Madison, Hamilton and Jay that explained what they meant.

Madison reasoned that a treaty is a power of general government with which “to regulate intercourse with foreign nations (Federalist #42). By intercourse, the Founders meant trade, of course, and in that sense taxation would fall within Madison’s intent.

The question of what constitutes a foreign nation, on the other hand, might very well not include the United Nations, as he intends it. Madison maintained that to be sovereign, a nation must have the authority over its subjects to enter into agreements and to enforce them (essay, Union, 1835). The Founders were familiar with “Leagues” of States and Madison likely would have judged that the U.N. has no more international taxing authority than the Leagues of his day.

John Jay maintained that a treaty, by its nature, must be “conducive to the public good” (#64). Should it be obtained through corruption, it would be “null and void by the law of nations.” His remedy for bad behavior in treaty making by the President? Impeachment.

Hamilton referred to treaties as contracts with foreign nations, derived from “the obligations of good faith” (#75). He insisted that the object of treaties must be to support the national peace.

Taken together, it appears that the Founders intended that there be wide latitude in treaty making, so long as the parties to a treaty be sovereign nations.

A President and a small group of Senators could give our taxing power to the U.N. and dare the dissenters to stop them. If they were able to get the concurrence of the 2/3 of Senators voting in a hastily convened session, such a treaty would be the supreme law of the land until or unless the dissenters could mount a successful challenge in the Supreme Court or could bring impeachment proceedings. In the ensuing years, the flood gates of taxation by the U.N. could be flung wide open.

Is this a likely scenario? Attempts have been made very quietly in the past and have gotten nowhere. The proponents have worked behind the scenes for fear of widespread condemnation, But, the increase in calls for a “New World Order” and for redistribution of global wealth make it more likely than ever.

Now, some people think that no President would dream of trying this or that our system would not allow a President to do this. Read the Constitution and judge for yourself.