FALL FOR THE BUNKUM OF "EMERGENCY POWERS"
Edwin Vieira, Jr., Ph.D., J.D.
The first step in dealing with the political swindle of “emergency powers” is for Americans to recognize that they cannot avoid it by focusing on those words alone. For this con game has taken many verbal forms over the years.
Perhaps the most consequential early use of the doctrine arose as a rationalization for the General Government’s usurpation of the power to emit legal-tender paper currency during the Civil War. As the Supreme Court opined, “[i]f it be held by this court that Congress has no constitutional power, under any circumstances, or in any emergency, to make treasury notes a legal tender for the payment of all debts * * * , the government is without those means of self-preservation which * * * may * * * become indispensable * * * .” Knox v. Lee, 79 U.S. (12 Wallace 457, 529 (1871). This, however, linked the “emergency” with the government’s “self-preservation” during an actual civil war—a circumstance that has yet to repeat itself.
From the 1860s to the 1930s, usurpation took the form of increasingly widespread political intervention in the peacetime private economy. For this purpose, legal wordsmiths invented the theory of “business affected with a public interest.” Just as, later on, those officeholders who wanted to exercise abusive powers would conveniently discover (or create) some “emergency” that required the application of precisely those powers, so at that time public officials who wanted to regulate some business would discover that it was “affected with a public interest” to precisely the degree necessary to rationalize governmental regulation. Of course, there being no constitutional definition of “affected with a public interest,” this was simply circular reasoning. A business declared to be “affected with a public interest” was nothing more than a business that politicians lusted to control.
These days, one hears no more about “business affected with a public interest,” because most Americans have been conditioned to believe that all businesses, without exception, are subject to pervasive governmental surveillance and regulation all of the time, for almost any reason. So the original political cover-story is no longer necessary. Which proves that it was always fraudulent. For, if governmental intervention in the private economy was constitutional in those days only as to a “business affected with a public interest,” then (there having been no constitutional amendment since then expanding the power of the General Government or the States to regulate private enterprise) such intervention would be constitutional today only as to such a business.
With the collapse of the stock market, the implosion of the banking system, and the Great Depression, the 1930s witnessed an explosion of “emergency powers” from the onset of President Franklin D. Roosevelt’s New Deal. The mentality and motives of the leading personalities of that era are well represented in Alger Hiss’s personal reaction to the phrase “national emergency:” “the words stir me.” Quoted in Gregor Dallas, 1945: The War That Never Ended (New Haven, Connecticut: Yale University Press, 2005), at 413. Typical of the times was the Emergency Banking Act of 1933, in which Congress “declare[d] that a serious emergency exists and that it is imperatively necessary speedily to put into effect remedies of uniform national application”—one of which “remedies” was to license the Treasury to seize common Americans’ gold. Statutes at Large, Volume 48, at 1-2. The real “emergency” was that the people held the gold that the bankers and politicians wanted to steal. Inasmuch as the Federal Reserve System was inherently unstable, that an “emergency” had arisen out of its operations should have surprised no one. Revealing, though, was the statute’s political hyperbole verging on hysteria: invoking not just an “emergency,” but “ a serious emergency”! Apparently, Congressmen imagined that the adjective would enhance the plausibility of their usurpation.
The existence of an actual “emergency,” “serious” or otherwise, not always being believable, usurpers needed to concoct a more general excuse for exercising powers the Constitution withholds from them. By the 1960s, the Supreme Court obliged, with its theory that public officials (of both the General Government and the States) could abridge individuals’ constitutional liberties—that is, could exercise unconstitutional powers—if the officials were serving a “compelling governmental interest” and employing the means “least restrictive” of the liberties at issue. Now, just as with “emergency powers” and “business affected with a public interest,” the phrases “compelling governmental interest” and “least restrictive means” appear nowhere in the Constitution. No objective definition of what constitutes a “compelling governmental interest” exists. No set of generally applicable rules for determining whether a means is “least restrictive” or not has even been promulgated. So when these terms are applied to the actions of some public officials by other public officials, they end up meaning whatever public officials want them to mean. This is “Humpty-Dumpty Law,” in which legalistic verbiage functions as the playdough of power, and the only issue is who is to be master. No matter how thinly one slices it, however, it remains baloney: For, in the face of every public official’s “Oath or Affirmation, to support this Constitution” (Article VI, Clause 3), there can be no interest, let alone a “compelling” interest, in violating the Constitution. And a means that is “least restrictive” of an individual’s constitutional right is nonetheless restrictive, and therefore improper.
Contemporary usurpers have not failed to notice the self-evident weakness in these apologies for usurpation—namely, that “emergency powers,” “business affected with a public interest,” “compelling governmental interest,” and “least restrictive means” consist of terminology entirely foreign to the Constitution. Doubtlessly, this explains the escalating assertions of new—indeed, fantastic— “war” powers by power-hungry politicians and the special-interest groups that hold their leashes. For the noun “War” does actually appear in four places in the Constitution: Article I, Section 8, Clause 11; Article I, Section 10, Clause 3; Article III, Section 3, Clause 1; and the Fifth Amendment. All of these provisions, however, refer to “War” in the sense of armed hostilities between or among nations. So, to stretch the War Power to their own ends, usurpers now apply it, not as it properly should be applied to some other country—such as “War” on Ruthenia or Slobovia—but also and quite indefensibly to some thing, some condition, or even some behavior—such as the “war on drugs,” the “war on poverty”, the “war on crime,” or the “war on terrorism”. (Observe that in the first instance, “War” is capitalized, because the noun is employed in its constitutional sense and therefore with its constitutional upper case; but in the following instances, “war” is not capitalized, because it is employed in an unconstitutional or nonconstitutional sense.) This verbal legerdemain enables usurpers to claim power over literally anything or anybody, by the trivial expedient of filling in the blank: “war on _____.” And not only power, but even unlimited power, because both in its constitutional usage and in popular understanding “War” entails defeat, destruction, and death.
Nonetheless, take heart. These shysters’ tricks should not confound informed patriots. Constitutional interpretation is not so arcane that the average American cannot blow all these theories out of the water. For example, assume that, in the aftermath of some natural disaster, Congress declares an “emergency,” and as a “remedy” orders that common Americans be disarmed. As every reader of this author’s commentaries knows, common Americans constitute “the Militia of the several States;” and “the Militia of the several States”, in order to be “Militia,” must be armed through each individual’s personal possession of a modern firearm and ammunition. Moreover, as the Fifth Amendment makes clear, the Constitution presumes that the Militia will always be available for “actual service in time of War or public danger.” Any and every “emergency” is a “time of * * * public danger,” by hypothesis. Therefore, no “emergency” can serve as a pretext for disarming the Militia—that is, common Americans—and thereby rendering their “actual service” impossible. Similarly, assume that Congress declares as a “strategy” in a “war on crime” that common Americans be disarmed. By definition, “crime” involves violation of the laws. As Article I, Section 8, Clause 15 makes clear, the Constitution presumes that the Militia will always be available to be “call[ed] forth * * * to execute the Laws of the Union.” Therefore, no “war on crime” can serve as a pretext for disarming the Militia—that is, common Americans.
Constitutional reasoning of this sort is simple and straightforward, because the Constitution was made for We the People themselves to interpret and administer, not for elitist politicians, judges, and the legal intelligentsiia to operate as a Delphic Oracle that speaks in the unintelligible jargon of “emergency powers”, “compelling governmental interests,” and “wars on whatever.” So, when confronted with politicians invoking “emergency powers” and the other mumbo-jumbo of usurpation and tyranny, patriotic Americans must just say no! They must stop being political dopes, dupes, and dummies who fail to think for themselves, as any self-governing people should. They must stop swallowing the noxious drug of unlimited government being pushed by the phony “two party system” that is misdirecting this country to destruction.
an “emergency” threatens this country. It derives from all too many
Americans’ political gullibility and sloth. And yes, this country
is at “war.” It is a “war” being waged right here at home by domestic
politicians and special-interest groups against the American people.
The Constitution provides We the People with all the “emergency powers”
and “war powers” they need to prevail. They must supply only the will.
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© 2006 Edwin Vieira, Jr.
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Edwin Vieira, Jr., holds four degrees from Harvard: A.B. (Harvard College), A.M. and Ph.D. (Harvard Graduate School of Arts and Sciences), and J.D. (Harvard Law School).
For more than thirty years he has practiced law, with emphasis on constitutional issues. In the Supreme Court of the United States he successfully argued or briefed the cases leading to the landmark decisions Abood v. Detroit Board of Education, Chicago Teachers Union v. Hudson, and Communications Workers of America v. Beck, which established constitutional and statutory limitations on the uses to which labor unions, in both the private and the public sectors, may apply fees extracted from nonunion workers as a condition of their employment.
He has written numerous monographs and articles in scholarly journals, and lectured throughout the county. His most recent work on money and banking is the two-volume Pieces of Eight: The Monetary Powers and Disabilities of the United States Constitution (2002), the most comprehensive study in existence of American monetary law and history viewed from a constitutional perspective. www.piecesofeight.us
He is also the co-author (under a nom de plume) of the political novel CRA$HMAKER: A Federal Affaire (2000), a not-so-fictional story of an engineered crash of the Federal Reserve System, and the political upheaval it causes. www.crashmaker.com
His latest book is: "How To Dethrone the Imperial Judiciary"
He can be reached at:
These days, one hears no more about “business affected with a public interest,” because most Americans have been conditioned to believe that all businesses, without exception, are subject to pervasive governmental surveillance and regulation all of the time, for almost any reason.