Book Reviews

A REVIEWER'S NOTEBOOK Of Men and Not of Law JOHN CHAMBERLAIN THE MAIN BURDEN of Lyman A. Garber's Of Men and Not of Law (Devin-Adair, $3.95) is that our courts, led by the Supreme Court of the United States, are setting themselves up as super-legisla tures and thus fracturing the tri partite "separation of the powers" that they have been sworn to up hold. The thesis is maintained with some wordiness, but in the semantic jungle in which we have all been scrabbling for certainty since 1933 maybe a lot of words are inevitable. The essential point is that Mr. Garber sustains his ease. Historically, the Supreme Court's usurpations divide themselves into two well-demarcated periods. In the nineteen thirties, when the New Deal was riding high, the Court laid down a number of tor tured economic decisions. In the nineteen fifties and sixties, the questionable majority rulings were sociological in nature. Taken to gether, the two sets of rulings have virtually nullified the Ninth and Tenth Amendments to the Constitution. Amendment Nine, it may be dimly remembered, reads: "The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people." Amendment Ten reads: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec tively, or to the people."

These amendments have been rendered meaningless by the Su preme Court's construction of the Interstate Commeree clause, the General Welfare clause, and the equal rights guarantee of the Fourteenth Amendment. By read ing into the Constitution ideas that were never contemplated by the Founding Fathers, the judges 1966 OF MEN AND NOT OF LAW 61 have effectively destroyed the old balance between the states and the Federal government in Washing ton. That they have done this in the name of morality is no excuse, for to change the law to conform to new canons of morality is the prerogative of the voters, who can always avail themselves of the amending process to accomplish ends that were not originally sanc tioned in the Constitution of 1787. "Nine Old Men" In 1930, when he was Governor of New York, Franklin Delano Roosevelt said: "Washington must not be encouraged to interfere ... in the matter of a great number of . . . vital problems of government, such as the conduct of public utili ties, of banks, of insurance, of business, of agriculture, of educa tion, of social welfare, and of a dozen other important features."

But this was Roosevelt before he had listened to Rexford Tugwell and hired a brains trust. The brains trust consisted of chronic centralizers, and they spawned the Agricultural Adjustment Act of 1933 and the National Recovery Act. Both of these acts were called unconstitutional by the Supreme Court of the "nine old men," who held that Congress does not have the authority to manage business or to delegate the powers of man agement under the transparent guise of regulating interstate com merce. Obstructed in the 1933-36 years by a majority of justices who were well acquainted with the delibera tions of Madison, Jefferson, and other Founding Fathers, the New Deal later recreated the AAA by getting a new interpretation that raised the "General Welfare" clause of the Constitution to the rank of a specific power of Con gress. The fact that Madison and Jefferson had repeatedly assured the electorate in the thirteen orig inal states that the two words "general welfare" did not override specific provisions of the Consti tution was conveniently over looked by the new Supreme Court justices who had been appointed by 1937.

The words of the Constitution say that "Congress shall have the power to lay and collect taxes . . . to pay the debts and provide for the defense and general welfare of the United States." But never before 1937 had it been seriously held that "general welfare" might be any sum total of particular wel fares that an Administration might choose to back in response to the lobbying of pressure groups. The new definition of "general welfare" meant that any "inter est" could get anything if it could develop the political muscle to force its attention on Congress as 62 THE FREEMAN July a deserving body of citizens. It did not matter that the particular wel fare of particular groups would have to be paid for by tax levies on citizens who might be seriously injured by the semantic torturing of the General Welfare clause. "Due Process" With a new Supreme Court working its verbal magic to define any arbitrarily chosen particular welfare as "general welfare," the decks were cleared for practically anything at all. And once the no tion of spending Federal money to subsidize the farmer had been jus tified under the Welfare clause, the Court followed by ruling in the Wickard v. Filburn case that "it is hardly lack of due proc,ess for the government to regulate that which it subsidizes." Accordingly, a farmer was penalized for raising wheat beyond a quota set by the Department of Agriculture.

Mr. Garber says that the argu ment that the wheat was for the sole consumption of the farmer's family and livestock was turned down on the unprovable ground that "if farmer Filburn had not raised his own wheat for his own use, he might conceivably have purchased it from the channels of interstate commerce,." Since no body could possibly know what the farmer might have done in a pure ly hypothetical case, the Supreme Court was venturing forth into mind reading, which is something that courts are forbidden under the law of evidence to do. It would have been just as rational for the Supreme Court to decide that a man standing before it might be a murderer because he had been en dowed by nature with two hands that were capable of choking someone. In the fifties and sixties the Su preme Court has taken to reading books on sociology, such as Myr dal's An American Dilemma. And, to enforce its sociological predilec tions, the Court has decided that the states cannot be trusted to run their own affairs in such matters as education and the control of their local election laws. It does not matter that the Federal gov ernment itself, with its Senate that gives equal representation to each state, was set up on the analogy of the colonial government of Con necticut, which allowed for geo graphical unit representation in one of its legislative chambers. In sheer defiance of the historical truth that the states had never contemplated delegating the power to apportion their local legislative districts to the Federal govern ment, the Supreme Court has stepped in to tell the states what they mayor may not do about local representation.

This is an absolutely clear case 1966 OF MEN AND NOT OF LAW 63 of judicial usurpation of the legis lative power, but the usurpation has been accepted rather apatheti cally. Senator Dirksen has been trying to rectify matters, but he can't seem to gather enough votes for an amendment that would do nothing more than restore the Constitution to what it was before the Court arbitrarily changed it. Harmony by Compulsion Mr. Garber talks about many other cases that involve judicial "legislating." The integration of our school systems may be socially desirable, but Mr. Garber doesn't think the Supreme Court had the right to command it. Whether he is on sound ground here· depends on one's feeling about the possibil ity of maintaining "separate but equal" schools under the old prin ciple of segregation. The trouble, in any case, is that integration of the schools becomes impossible wherever Caucasians, voting with their feet, move out of our big cities. Mr. Garber remarks that "the main cause of segre gated living areas was not the in ability of Negroes to move into areas occupied by Caucasians, but the Caucasians moving out ...

many square miles of Northern cities would become-integrated every year if just half the Cauca sians would stay where they had been living!" ~ ~ YOUR CHURCH - THEIR TAR GET, Edited by Kenneth W. Ing walson, Better Books (Box 2096, Arlington, Va. 22202), 1966, 275 pp., $4.50 cloth, $3.00 paper. Reviewed by Norman S. Ream THE GENERAL DRIFT toward social ism in our society has tinged many clergymen with what Ludwig von Mises, doyen of classical econo mists, calls the "anticapitalistic mentality." But not all, as this book - a symposium by thirteen authors - attests. During the years of the Great Depression, delegates to the na tional convention of one major denomination voted a resolution favoring the abolition of the cap italistic system and all the forms which sustain it. Year after year since that time other ecclesiastical bodies have consistently attacked free enterprise, the profit motive, individualism, and private owner ship of property. Today, these same voices are almost. always found with secular "liberals" urg ing increased governmental inter vention, world government, ad mission of Red China to the United Nations, a negotiated peace in Vietnam, peaceful co-ex istence with communism, and so on.

One must not bring a blanket indictment against clergymen and churches, lest he harm the reli64 THE FREEMAN July gious forces which are friendly to economic and political liberty. These constitute the majority of churchmen, who have not, how ever, been able to make their weight felt. This book is a ve hicle for "the other side," and Mr. Ingwalson has done us a great service in bringing together these essays and delineating for us, as his subtitle suggests, "What's Go ing on in the Protestant Church es." Perhaps of more interest and concern than the situation as it exists today is the illuminating insight one derives from the authors as to how we got where we are. This historical material, it seems to me, is particularly valuable; and very few men have a greater insight and understand ing of this process than do Irving Howard, Howard Kershner, and Edmund Opitz - to name but a few of the contributors.

This book should be especially helpful to laymen who find it difficult to understand how and why the churches have become so involved in the political left, and to young theological students and ministers who need to know how the churches have been subverted and used by the socialists and communists. I would quibble with one or two contributors who identify po litical liberalism with theological liberalism. The two are not logi cally joined, and, as a matter of fact, some of the best essays in the book are by men who are theologically liberal. But as the editor says in his Introduction, "These men may not always a.gree with each other on details. Neither will you agree with all they say. But the problem and challenge for laymen and clergymen has been made crystal clear." Amen! ~ THE FREEMAN on Microfil:m An agreement has been entered with University Microfilms to make available to libraries and others who may be interested current as well as back issues of The Freeman since January 1956. Inquiries should be directed to University Microfilms, 313 N. First Street, Ann Arbor, Michigan 48107.

--ESSAYS ON LIBERTY---This latest volume of the series (448 pages, indexed) contains selected writings from THE FREEMAN and NOTES FROM FEE beginning with May 1964 through April 1965. Volume XII 49 Essays - 31 Authors Cloth, $3.00 Paper, $2.00 The Set-all 12 volumes Cloth, $28.80 per set Paper, $19.20 per set ALSO, NOW AVAILABLE: Comprehensive cumulative subject-matter, author, and title IN DEX-covering all 12 volumes in the ESSAYSON LIBERTY series. $1.00 THE PROPERTY BASE • The market, which is the characteristic institution of capitalism,expressesa relationshipof buyer and seller. It is, in effect,what results when free choice is appliedto the dis position of property-or of what is made with the use of property, by "mixing" labor with it. The comparisonswhich the market permits lead to the creation of value, which is a compromise of individual judgments. The seller seeks to cover the labor and energy he has expended, plus a profit; the buyer seeks to save himself labor and energy by making an exchange. Two subjectivitiesmeet in an objective price.

But behind the creation of value there must be ownership the right to dispose of a good or a service. So we come back to propertyas the base for liberty. JOHN CHAMBERLAIN, The Roots of Capitalism Paul L. Poirot 3 Robert M. Thornton 12 Henry Hazlitt 16 Norman S. Ream 26 Leonard E. Read 32 Institute of Directors 41 AUGUST 1966 Weakness Corrupts . On Heroes, History, and Our Heritage . The Case for International Investment • A Clergyman Looks at Free Enterprise • Some Reflections on Robots • The Assault on Free Enterprise • The Flight from Reality: 23. The Flight from the Constitution, I Books: Adenauer's Memoirs Other Books • Clarence B. Carson John Chamberlain 45 60 63 5 '12 % 5 3/4 0/0 systematic savings-on 3 year accounts and on 3 year accounts of $10,000 or more of $5,000 to $9,000 in in multiples multiples of $1,000 of $1,000 CURRENT RATE .•• 5 lf4 0/0 minimum on regular savings accounts .·.·...·..LJmjHMHMl@iilmlM~·.~······· COAST FEDERAL SAVINGS & LOAN ASSOCIATION Department FM, 9th & Hill Sts., Los Angeles, California 90014 ______ STATE _ 6-121A o Please send me a FREE copy of NAME(S)_~~_~~ _ President Crail's uAdam Smith vs. (please print) Karl Marx" speech.