Monday, October 18, 2010
Friday, October 15, 2010
But now I am.
On October 12, 2010, the Internet publication “TIA Daily” published an interview with Stephen Bailey, running for the House of Representatives from the Second Congressional District of Colorado.
Entitled “Atlas Runs, An Interview with Stephen Bailey,” and conducted by TIA’s publisher/editor Robert Tracinski, it speaks for itself. Before I reproduce it in its entirety below, I want to make two points.
First, in the name of full disclosure, as many of you know for several years in the late Sixties Erika Holzer and I were Ayn Rand’s principal lawyers (and her friends). Nevertheless, I am not reprinting the TIA interview because I am an Objectivist (because I am not), nor because Mr. Bailey may be. I am reprinting it because never in all my adult life have a heard a candidate for national public office express the ideas Mr. Bailey does in this interview, nor in the manner he has.
Second, at the end of the interview Mr. Tracinski asks his readers to contribute to what is apparently Mr. Bailey’s woefully under-funded campaign. I not only second the motion, but I implore you to forward this blog to as many people as you can, nationally, and ask them to do the same. Even though Stephen Bailey would be only one Congressman of hundreds, his voice from the floor of the House would resonate far beyond the walls of that Chamber.
TIA Daily • October 12, 2010
An Interview with Stephen Bailey
by Robert Tracinski
Editor's Note: There are a number of people who are running for Congress, and a few who are already in Congress, who are fans of Atlas Shrugged and are influenced by Ayn Rand's ideas. I've already described them as a potential Atlas Shrugged Caucus. But the first and so far the only fully fledged Objectivist to run for Congress is Stephen Bailey, who is running as a Republican in Colorado's second district. See his campaign website, www.stephenbaileyforcongress.com, which bears the wonderful tagline: "Liberty Is Prosperity." Now there's a campaign slogan!
I recently asked Mr. Bailey some questions about his candidacy, about what he intends to do in Congress, and about the challenges of running for office as an Objectivist. I also asked about his chances, and he gave me the numbers I was hoping to see: the incumbent is below 50% in the latest internal polls, and voters are split evenly on the generic ballot question. That means Bailey has a real chance to take a "safe" seat that has been held by a Democrat for the past 40 years—particularly if this turns out to be as bad a year for the Democrats as I am expecting.
This race is going into its final weeks, and every little bit counts, so please make sure to scroll to the bottom of this article and see what you can do to help Bailey win.—RWT
TIA Daily: What motivated you to run for Congress?
Stephen Bailey: I've always been interested in politics as an armchair observer and commentator. However, the decision to run began in late 2008 when the TARP bailout legislation was first brought to a vote. I was on a business trip in Europe and celebrated when the bill was defeated. When Congress and President Bush signed the TARP bailout two weeks later, against the wishes of the American public, it initiated the chain of events that led to the creation of the Tea Party movement and my resolve to not allow my country, my freedom, and my family's freedom to be destroyed. That resolve accelerated over the next year as President Obama and the Democrats rammed one tyrannical bill after another down our throats, engorging themselves and their political cronies in an orgy of spending that is bankrupting America.
TIA Daily: As an Objectivist, you are radically pro-capitalist in your views—more radical than most of the voters who would be your constituents. How do you deal with that problem? How do you find common ground to campaign on, without compromising your principles?
Bailey: While campaigning, I primarily stick to general principles. I realize that the rest of the country may not be ready or willing to move as quickly as I would like towards the objective of fully restoring our freedoms and constitutionally limited government. However, I also know that the majority of people are ready to move in that direction.
One of the worst acts that this Congress and the prior Congress committed is forcing through legislation that the country did not want. It started with the TARP bailouts in the previous Congress and continued through with just about everything the current Congress has done. In a conflict between individual rights and the majority opinion, given where we are today, I will work to move us ever closer to the full protection of our rights but at a pace that the country can reasonably adapt. However, I will not support any attempts to further restrict or infringe our rights. If the country is not ready to take a step, then it is a sign that further education is required. The failure will be mine, and those who are like-minded, not the country's, if we fail to convince a majority of the veracity of our individual-rights and free-market ideology.
TIA Daily: If a new Republican-led Congress convenes in January, what do you think should be its top priorities?
Bailey: It is obvious that the economy and jobs are the top issues. Those are to be addressed by relieving the economy of the extreme regulatory, tax, and litigation burdens our government has placed on it. Providing that relief will mean cutting government, which will bring spending in alignment with tax revenues.
For me, corruption is a co-equal number one priority. We did not arrive at this sorry state by accident. The procedures of Congress have been structured to enable corruption. Junk legislation is added directly or as amendments to "must pass" legislation. To check corruption, legislation must be limited to a single subject, constitutional authority [must be] cited, and [it must be] limited in size and scope. Earmarks may be a tiny percentage of overall spending, but they enable corruption. Earmarks must be banned. The reconciliation process (conference committees) must be discarded. One chamber of Congress initiates legislation (by the Constitution, the House must originate all revenue raising bills) and rejects it or approves, sending it to the other chamber. The receiving chamber rejects it and it dies, approves it unmodified and sends it to the president, or approves with amendments. In the latter case, it is remanded back to the originating chamber to consider the amendments. It is forwarded to the president only if all amendments are approved.
Vote buying must be made illegal and the best way to do that is to ensure all legislation applies equally to every American. Technically, this would be an aspect of the process of validating the constitutionality of the bill, as the Constitution guarantees equal protection of all of our rights.
If these reforms are not enacted, Republicans will not earn the trust of Americans and any gains made over the next few years will be temporary.
TIA Daily: A Republican Congress is likely to face opposition from a president who has proved not to be willing to tack to the right, as Bill Clinton did, in response to the prevailing political winds. What do you think you can accomplish in the face of presidential opposition?
Bailey: We can balance the budget. The president cannot authorize any expenditure without enabling legislation from Congress. Congress can approve appropriations that bring the budget into balance and fund only government operations and services that Congress chooses to fund.
Sure, President Obama can veto appropriations legislation for not funding things he wants funded. But, Congress can hold strong and refuse to give. When your objective is to balance the budget, the longer the government goes without spending money, the easier it is to achieve your objective.
Also, the Constitution gives each chamber of Congress full control over their operations. The anti-corruption reforms to Congress's procedures can and should be enacted without any input or approval from the president.
Finally, Congress has oversight responsibilities. Congress can hold hearings to investigate everything that the executive branch is doing and has done, to hold the president accountable between January 1, 2011 and January 20, 2013.
TIA Daily: We can't have smaller government without tackling the long-term, inexorable growth of the big middle-class entitlements: Social Security and Medicare. What do you propose to do with these programs over the long term, and do you think the American people would be willing to embrace this solution?
Bailey: I believe the American people will be willing to embrace reforms to the "sacred" entitlement programs under one condition. First, we must cut spending in all other areas except for the entitlements and the constitutional functions of the federal government—national defense, the judiciary, etc. Even in these constitutionally authorized areas, budget cuts must be considered as appropriate while fulfilling the responsibility of protecting individual rights.
After everything that can be cut is cut, and we sell off surplus assets to pay down the debt and reduce the annual debt service costs, then the American people will acknowledge and accept that reform of these entitlements cannot be avoided.
Poverty-related programs, if they are to survive, must be transitioned to the states. The Constitution does not authorize the federal government to run these programs. Transitioning them to the states will eliminate the federal level of bureaucracy overhead while placing the programs within local control and accountability. Since state and local governments cannot print money or borrow unlimited amounts, fiscal discipline will be exercised as voters directly recognize the costs of these programs.
The retirement programs—Social Security and Medicare—must be transitioned to personal responsibility. If a safety net remains for impoverished seniors, it will be the same poverty programs available at the state and local levels. These programs must be transitioned over a long period of time as current and near retirees do not have the ability to become independent and save sufficient funds for their retirement. Measures such as increasing the retirement age and means-testing can be considered to increase near-term solvency. However, as we move to younger adults with increasingly greater periods of time in which they can save for their retirement, we can transition that responsibility from the government to the individual. This transition will benefit the individuals, as they will have a property right in their retirement. Today, their retirement security is subject to the political whim and plundering of the Treasury by politicians.
The free market insurance industry will step in to offer products such as level, term health insurance to provide predictability for retirees' long-term health insurance costs, disability insurance in case of debilitating injury or illness, and even birth defect or child-age discovered medical condition insurance.
TIA Daily: What is the most important thing you think you could do, as a congressman, to have a positive impact on US foreign policy, particularly with regard to the war in Afghanistan and the threat from Iran?
Bailey: Require Congress to have a vote declaring war on Islamic terrorism. This would force the President to justify the war, clearly identify the enemy and victory as well as the means by which victory is to be achieved. If Congress declares war, then we will have finally provided our service members with the complete and unambiguous moral sanction that they have been deprived. And we will finally have a clear objective, clear enemy, and a clear means for achieving the objective.
In addition, Congress can hold hearings to assist in the battlefield of ideas as well as influencing the president's plans.
TIA Daily: As an Objectivist, how do you deal with the issue of religion, which puts you at odds with parts of the Republican "base"?
Bailey: I don't bring up religion because I am running for Congress, not to be their minister or deacon. A few have asked. I address the question as a more general question on morality. I respond by stating that I seek to live my life by the highest moral standards. I value honesty and integrity. When people hear me speak, they can see my sincerity. They also know that I'm a protector of their First Amendment right to freedom of religion. That makes me an ally, and not at odds with them. As their representative, it is my responsibility to protect their rights, not to tell them how to live.
TIA Daily: My sense is that there are a large number of more radical, principled pro-free-marketers running for office this year under the banner of the Republican Party. There were a lot of them in the primaries, and a good number of those made it through to win the Republican nomination. What do you think are the chances of reforming the Republican Party, and how do you think it should be done?
Bailey: I believe that if either of the parties is open to being reformed, it is the Republican Party. The Democrat Party is clearly under the full control of committed statists—socialists and communists. It will become increasingly difficult for moderate Democrats at the grass-roots level to stay with the party as the politicians under the Democrat umbrella exercise increasing levels of deceit and worse. The Republican Party is composed of very principled people that respect honesty and integrity. The grassroots level has been very committed to these principles as well as being fiscally conservative.
Internally, the Republican Party has had a long-standing split between the social libertarians and the social conservatives. Therefore, I believe it is possible to reform the Republican Party to be the party of a single over-riding principle: the non-initiation of the use of force and the guardians of individual rights.
TIA Daily: There are probably a lot of other Objectivists—hopefully some readers of TIA Daily among them—who are watching your campaign and thinking: if Stephen Bailey can do it, maybe I can, too. Do you think it's time for Objectivists to start running for office, and what advice would you give to anyone who is interested?
Bailey: My objective was not to be the first Objectivist to run for office. My objective is to fight for our freedoms and constitutionally limited government dedicated to the protection of our rights. I've been asked if it is still too early. I don't know if it is too early. What I know is that it will soon be too late, at least in my lifetime, for an Objectivist to run if we don't change the direction of our country.
Objectivists need to continue with their educational and cultural efforts. However, we also need to become directly involved. It is difficult to compromise but not impossible. The status quo is what it is. Any movement towards the ideal society we seek is an improvement. It took nearly 250 years to go from the Declaration of Independence to the status quo. It took about 100 years to go from John Locke's treatise on government to the US Constitution. We need to be in this for the long run. That means education and participation in the day-to-day governing of our country and communities.
It is also worthwhile to remember Plato: one of the penalties of not participating in politics is that you will be governed by your inferiors.
Some advice for any Objectivist that is considering running for political office: Politics is different from education and advocacy. You must understand the difference. As a politician, anything you say can and will be interpreted as a political or legislative initiative you are promoting.
Politics is not ethics. In politics we are concerned about the protection of rights. Any venture into how people should be living their lives will be interpreted as you advocating for the government to enforce people to live their lives in that manner. It is impossible to stay completely away from ethics. But when you venture there, the burden is on you to ensure that the audience understands that this is your personal perspective and recommendation and not that you believe the government should be enforcing it.
TIA Daily: You are running against a wealthy Democratic incumbent, and I can't help noticing that Colorado's second district includes Boulder. It's been a long time since I've visited Boulder, but my impression is that it's not exactly a right-wing hotbed. So how is the campaign going? What is your strategy, and how do you view your chances?
Bailey: The campaign is going well. Our strategy was born of necessity and circumstance. The seat is considered a safe seat for Democrats because Boulder County accounts for about 36% of the typical turnout. We knew that fundraising would be a tremendous challenge. That left us with running a grassroots campaign. There are a tremendous number of motivated people this year and they have been helping with the campaign—walking, calling, and spending time at town and county fairs. On the other hand, many Democrats, especially in Boulder County, appear dismayed at the consequences of achieving their objective in electing progressive Democrats. It is unclear how they will vote. Most working class Democrats are not happy with the direction of the country. They know more about economics than Obama or anyone on his economic team!
Given the circumstances, we are doing very well. Our latest poll (a few weeks old) shows the generic ballot test as a tie—within the margin of error. (A generic ballot test asks if you would vote for the Democrat or Republican if that is all you knew about the candidates.) Nearly 60% of the district believes the country is on the wrong track. In the head-to-head matchup, the incumbent is polling under 50%. These numbers are really unprecedented for this district. Our challenge has been to increase name identification, hold the incumbent accountable for voting for this mess, and to get our message out.
We have done everything we can with the resources we have available. Mail ballots will be hitting mailboxes tomorrow. Victory on November 2 will depend on turnout and the overall anger and disgust level in the district. This will be a big year for Republicans. It could be big enough to carry this district along with my message. The Club for Growth is tracking the district in their 150 Democrat seats at risk.
TIA Daily: If TIA Daily's readers want to help your campaign, in these crucial closing weeks, what can they do?
Bailey: If you know anyone in the district, call them and promote my candidacy to them, and ask them to spread the word to everyone they know.
Contact Cloud Downey at Cloud@TheRightsOfMan.com to make calls on behalf of the campaign.
If you know people in the media, tell them about the campaign and ask them to interview me and promote the campaign. We have plenty of information on the incumbent as well.
Contribute! Although the time is short, we can still influence late-deciding voters.
TIA Daily: Thank you for taking the time to answer these questions. Good luck—and I hope to see you in Washington in January.
The Bailey interview can be accessed HERE.
Thursday, October 7, 2010
When I began this project, I wrote:
In preparation for my 2010 ten-lecture Internet course, Constitutional Law 101: Basic Course, I revisited many of the Supreme Courts cases I’ve taught and written about during the past fifty years. But even in the course’s twenty-hours, I was unable to include some of the worst decisions in Supreme Court history.
In reviewing those decisions I was struck, as always, by how many of them not only rejected the Founders’ vision and achievement, but how the Court embraced and enshrined principles—altruism, collectivism, statism—antithetical to the Declaration of Independence and the Constitution’s express promises of individual rights, limited government, and free markets (and, implicitly, of utmost importance today, a robust, self-interested sovereign national defense).
Accordingly, in the “Worst Supreme Court Decisions” section of this website, I’m going to post essays in which I’ll analyze ten of those decisions and use them to illustrate the adverse impact on individual rights, limited government, free markets, and national defense that results from constitutional adjudication not rooted in text and meaning.
The ten cases I’ve presented speak for themselves.
M’Culloch ascribed almost unlimited federal Congressional power under the Necessary and Proper Clause, at the expense of the Tenth Amendment and federalism.
Morrison demonstrated how separation of powers can be violated with impunity.
Griswold showed just unrestrained judicial restraint can be, in the extreme by inventing previously unknown constitutional “rights.”
Gitlow started “incorporation” of the Bill of Rights against the states, again with a severe impact on the Tenth Amendment and federalism.
Wickard constituted an exercise of federal power bestowed by M’Culloch, erasing the crucial constitutional distinction between intra- and inter-state commerce.
Heart of Atlanta Motel, Inc v. United States and Katzenbach v. McClung carried explosion of the Interstate Commerce Clause to uber-absurd ends, using it to “cure” immoral personal behavior in the name of “justice.”
Muller revealed the true paternalism, even denigration, of women that infused legislative and judicial values of that time.
Blaisdell proved that even as against the text of a specific constitutional provision (Article I, Section 10) the Court had no difficulty abrogating contract in the name of an “emergency” and the “public good.”
Roe, building on Griswold, displayed the Court’s utter arrogance in utilizing an invented principle to strike down the laws of the fifty states, and in the process granted judicial approval to the killing of, by now, millions of the unborn.
Selective Draft Law Cases established under the imprimatur of the Supreme Court of the United States that Americans do, in fact, belong to the state and that it can take their lives for the public good, in the trenches of France to the jungles of Vietnam.
And all of these “Worst” cases—as well as countless others—underscore what I say in Constitutional Law 101 and Constitutional Law 102. That as Ayn Rand wrote many years ago:
The dominant ethics of mankind’s history were variants of the altruist-collectivist doctrine which subordinated the individual to some higher authority, either mystical or social. Consequently, most political systems were variants of the same statist tyranny, differing only in degree, not in basic principle, limited only by the accidents of tradition, of chaos, of bloody strife and periodic collapse. Under all such systems, morality was a code applicable to the individual, but not to society. Society was placed outside the moral law, as its embodiment or source or exclusive interpreter — and the inculcation of self-sacrificial devotion to social duty was regarded as the main purpose of ethics in man’s earthly existence.
Since there is no such entity as “society,” since society is only a number of individual men, this meant, in practice, that the rulers of society were exempt from moral law; subject only to traditional rituals, they held total power and extracted blind obedience—on the implicit principle of: “The good is that which is good for society (or for the tribe, the race, the nation), and the ruler’s edicts are its voice on earth.”
This was true of all statist systems, under all variants of the altruist-collectivist ethics, mystical or social. “The Divine Right of Kings” summarizes the political theory of the first—“vox populi, vox dei” of the second. As witness: the theocracy of Egypt, with the Pharaoh as an embodied god—the unlimited majority rule or democracy of Athens—the welfare state run by the Emperors of Rome—the Inquisition of the late Middle Ages—the absolute monarchy of France—the welfare state of Bismark’s Prussia—the gas chambers of Nazi Germany—the slaughterhouse of the Soviet Union. (Ayn Rand, “Man’s Rights,” The Virtue of Selfishness, 123).
Rand also wrote that “America’s inner contradiction was the altruist-collectivist ethics.”
That’s what explains virtually every decision involving rights ever decided by the Supreme Court of the United States.
That’s why there are not merely ten of the “Worst,” but thousands.
For two-and-a-half centuries, literally countless Americans have died in military service, many of them draftees.
Indeed, even the American colonists were familiar with conscription, the Revolutionary War having been waged in part by men who were drafted pursuant to the constitutions of nine states. However, because they had been drafted only into state militias, the national government was forced, when it needed soldiers, to requisition them from the states. Some people deemed this arrangement inconvenient and sentiment arose for broader federal power over military affairs.
In the Constitution, the power of Congress to conscript is neither expressly denied nor granted. Article I, Section 8, expressly provides only general military powers for Congress: "To declare War . . . To raise and support Armies . . . To provide and maintain a Navy. . . ."
Just how broad were these powers intended to be? The question was not tested for nearly a century-and-a-half later, until World War I. On May 18, 1917, President Wilson signed into law the Selective Draft Act. It was intended to provide manpower to fight the stalemated trench warfare which had been draining the lifeblood of European countries for three years.
Ten men who were indicted for failing to register under the Act launched a broad-based constitutional attack against it—the first, and, until the Vietnam Era, the last challenge of this kind ever made against the federal draft as such. (All legal challenges to conscription after 1918 were of a more limited nature, designed to test or clarify particular provisions, such as the religious exemption clause and the law's alleged "inequality" for exempting women--except one case unsuccessfully brought by me challenging the conscription law under the Ninth Amendment.)
Convicted in various federal district courts, the defendants finally reached the Supreme Court of the United States. There, they raised several constitutional objections to the draft, all unsuccessfully. Though it is significant that the defendants lost in the Supreme Court (unanimously), much more significant is how the Court treated their constitutional arguments, and why.
One of the defendants' major arguments was that Congress lacked the power to enact a law forcing men to fight. The Court countered that the Constitution granted that power when it authorized Congress to declare war and to raise and support armies. "As the mind cannot conceive an army without the men to compose it," said the Court, "on the face of the Constitution the objection that it does not give power to provide for such men would seem to be too frivolous for further notice."
At stake in the 1918 Selective Draft Law Cases was an all-encompassing power to strip men of their personal liberty and send them out to die. At stake was whether men could be fined or jailed for refusing to lay their lives on the line for a cause which was not theirs. Yet the Court evaded the defendants' "Congressional power" argument, brushing it off as "too frivolous for further notice." This blatant refusal to address profound constitutional issues was a strategy which the Court was to employ consistently throughout the draft cases.
What the Court did, in attempting to dispose of the "Congressional power" argument, was to set up a false alternative: the government must either draft men, or do without an army.
There was of course a third choice, suggested to the Court by the defendants: Congress's delegated power to "raise" an army should properly be understood as calling for volunteer enlistments. "This [choice, said the Court] . . . challenges the existence of all power, for a governmental power which has no sanction to it and which therefore can only be exercised provided the citizen consents to its exertion is in no substantial sense a power."
Exactly! That's why America was founded on principles of individual rights, limited government, delegated power, necessary and proper.
But the Supreme Court of the United States wasn't having any.
Give the government the power to do something, the Court was saying, and, ipso facto, it can use force to get what it wants. On that premise, for example, the Constitution's delegation to Congress of the power to establish post offices would allow the government to draft postal employees, instead of hiring them in the free market like any other employer.
The defendants advanced still another argument: by reason of its religious exemption clauses (which exempted ministers and conscien¬tious objectors from the draft), the Act violated the First Amendment's prohibition against government contributing to the establish¬ment of religion. While there was merit to this argument—which the Court had a duty to consider—once again, the justices skirted the issue: " . . . we pass without anything but statement . . . [this] proposition . . . because we think its unsoundness is too apparent to require us to do more." Cowards!
When the defendants addressed themselves to the Thirteenth Amendment—and cited as a bar to the draft the Constitution's unequivocal prohibition of slavery and involuntary servitude—the Court evaded the argument by declaring it "refuted by its mere statement."
Evasion was the safer course for the Court; it allowed the justices to ignore their own precedent: a 1911 case where it had written: "While the immediate concern was with African slavery, the [Thirteenth] Amendment was not limited to that. It was a charter of universal freedom for all persons, of whatever race, color or estate, under the flag. * * * The plain intention was to abolish slavery of whatever name and form and all its badges and incidents; to render impossible any state of bondage; to make labor free, by prohibiting that control by which the personal service of one man is disposed of or coerced for another's benefit which is the essence of involuntary servitude."
Obviously, the "charter of universal freedom," which was to "abolish slavery of whatever name and form and all its badges and incidents," etcetera, was constitutionally and morally acceptable when the beneficiary was the government. The Court wrote:
. . . as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude . . . we are constrained to the conclusion that the contention to that effect is refuted by its mere statement. (My emphasis.)
The defendants had anticipated this "need-over-rights," altruist-collectivist-statist response. In a naive and over generalized attempt to show that freedom and conscription were mutually exclusive, the defendants argued, correctly, that compelled military service was "repugnant to a free government and in conflict with all the great guarantees of the Constitution as to individual liberty. . . . "
But the premise of this proposition is so devoid of foundation that it leaves not even a shadow of ground upon which to base the conclusion. Let us see if this is not at once demonstrable. It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it. . . . To do more than state the proposition is absolutely unnecessary . . . .
There were, however, arguments of a different nature which the Supreme Court of the United States did find persuasive—arguments it relied upon as "proof" for the proposition that the draft was constitutional.
Look, said the Court, at the " . . . practical illustration afforded by the almost universal legislation to that effect now in force." Look, the Court was saying, at what other nations have done.
Thirty-three countries were cited in a footnote to the Court's opinion—thirty-three governments which, prior to 1918, had subject¬ed their citizens to the draft: Argentina, Austria-Hungary, Belgium, Brazil, Bulgaria, Bolivia, Colombia, Chile, China, Denmark, Ecuador, France, Greece, Germany, Guatemala, Honduras, Italy, Japan, Mexico, Montenegro, Netherlands, Nicaragua, Norway, Peru, Portugal, Rumania, Russia, Serbia, Siam, Spain, Switzerland, Salvador, Turkey.
The list includes every imaginable social and political system: monarchies and dictatorships; banana republics and primitive backwashes; brutal oriental despotisms and disjointed feudal kingdoms.
Missing from this list is a constitutional republic in which the government, created for the express purpose of protecting individual rights, derives its limited, delegated powers from the people.
Could our Supreme Court really have believed that American citizens were no more immune from statist force than the helpless peasants under the heel of the Russian Tsar, or the miserable serfs under the whip of Japanese feudal barons?
Could the Court have forgotten why so many immigrants "yearning to breathe free" had fled to America's shores precisely to avoid conscription in their native countries!
Could the Court have forgotten that America was supposed to have been founded on the principle of inalienable rights and a limited government of delegated powers, not on the antithetical doctrines which have plagued the rest of the world from the beginning of time?
Would the Court ignore its own earlier precedents: that in judging a law our Constitution and our form of government must be its only guide?
It could, and it did. (Perversely, included in the Court's list of those countries that had draft laws—held up as an example for America to follow—was Germany, with which we were then at war.)
In addition to taking an international popularity poll on the draft issue, the Court attempted to justify conscription on the basis of three periods of United States history: pre-constitutional, the War of 1812, and the Civil War. To what occurred during all three periods, it gave dubious interpretations.
While in the pre-constitutional period it had been the practice of the states to draft men into the militia, and while it was true that the states had thus set an unfortunate precedent at a critical time in our history, it did not follow—as the Court implied—that the Constitution transferred this arbitrary power from the states to the federal government. The Constitution speaks for itself: the federal government was given no explicit power to raise and support an army by means of a national draft. The grant of power was, at best, equivocal.
The War of 1812 was cited by the Court because James Monroe, then Secretary of War, had written to Congress recommending compulsory federal draft legislation. (Ironically, we were then at war with the British because they were impressing American seamen into their navy.) While the bill that was later introduced never passed, the Court guessed that, but for the intervention of peace, the United States would have had a draft law at that time. In fact, there is ample evidence that the bill had faced an uncertain future in both houses of Congress.
In citing the Civil War period, the Court placed considerable emphasis on an 1863 conscription law, suggesting that it was solid legal precedent.
In the first place, the United States Supreme Court had never ruled on that law's constitutionality; the Civil War Draft Act was never challenged beyond the highest court of Pennsylvania. Second, that law provided for a financial alternative to the draft: draftees could find someone to take their place, or pay the Secretary of War up to three hundred dollars to find a substitute. (The essence of the Civil War Draft Act can thus be summed up as "your money or your life.") Third, that law expired before involuntary servitude had been outlawed by the Thirteenth Amendment, while the World War I draft law was enacted after the Thirteenth Amendment.
Finally, the Supreme Court cited as authority a book entitled The Law of Nations, a classic work written by an eighteenth-century scholar-diplomat named Emmerich de Vattel. The Court's reference was understandably oblique. It wouldn't be a good tactic to actually quote from so revealing a political tract. Just how revealing can be gleaned from the following excerpt from Vattel's The Law of Nations:
Every citizen is bound to serve and defend the State as far as he is able. Society cannot otherwise be preserved; and this union for the common defense is one of the first objects of all political association. Whoever is able to bear arms must take them up as soon as he is ordered to do so by the one who has the power to make war. . . Since every citizen or subject is obliged to serve the State, the sovereign has the right, when the necessity arises, to conscript whom he pleases.
Since "society" is only a number of individuals in a given geographical area, what Vattel, the Supreme Court, and the colonists who sanctioned state militias, really meant when they asserted "the draft is necessary to preserve society," is: some men can be preserved only by forcing other men to preserve them.
And so the draft became yet another vehicle by which our government claimed countless victims. In the twentieth century alone, hundreds of thousands, from the Argonne Forest to the Vietnam jungles, have fallen in mute testimony to the consequences of altruism¬-collectivism-statism—victims not merely of powder and steel, but of the idea that man is a sacrificial animal.