The advocates of greater governmental control of the medical profession --- and of all professions for that matter --- have decided they must first demonize the defenders of limited, constitutional government. For it is this philosophy, as enshrined in the U.S. Constitution, that stands in the way of their socialistic schemes.

Perhaps the notorious example of this phenomenon is President Bill Clinton's widely-publicized 1995 condemnation of conservative and libertarian radio talk show hosts as "purveyors of hatred and division, the promoters of paranoia." "You ought to see some of the things that are said over the airwaves today," the president bemoaned as he hinted at a regulatory crackdown by the Federal Communications Commission. Most remarkable, however, was the president's comment at the May 1995 Michigan State University commencement: "There is nothing patriotic about pretending that you can love your country but despise your government."

This statement is patently un-American. The founding fathers were men who loved their country but despised their rulers. They viewed centralized governmental power as the enemy of nation, community, family, property, and civil order.

Consider Clinton's middle namesake, Thomas Jefferson, who believed that "on the tree of liberty must spill the blood of patriots and tyrants," and "a little rebellion, now and then, is a good thing, a medicine necessary for the sound health of government."(1) It was Jefferson who wrote in the Declaration of Independence that "whenever any form of government becomes destructive" of citizens procuring for themselves "inalienable rights" to "life, liberty, and the pursuit of happiness," then "it is the Right of the People to alter or abolish it."(2) If Jefferson were alive today and saying these things, Janet Reno's poison gas-filled tanks might be headed for Monticello.

The next time our national political "leaders" contemplate raising taxes, hiring more bureaucrats, socializing medicine, assaulting religious "fanatics" with tanks and poison gas, or confiscating private property in the name of environmentalism, they ought to consider one of Jefferson's biggest complaints against the tyrannical King George: "He has erected a multitude of New Offices and sent higher swarms of Officers to harass our People, and eat out their substance."(3)

It was Jefferson who authored the Kentucky Resolution of 1798, a response to the nation's first "hate speech law," the Sedition Act, which forbade "writing or publishing of any scandalous, malicious, or false statement against the president, against the vice president, or either house of Congress," and prohibited any speech that would bring the government "intocontempt or disrepute; or excite against them...the hatred of the good people of the United States."

Seeing this as a death blow to free speech, Jefferson declared in the Kentucky Revolution: "Resolved, that the United States of America are not united on the principle of unlimited submission to their general government," and that the Sedition Act "does abridge the freedom of the press, is not law, but is altogether void, and of no force." Where the powers are not specifically delegated by the constitution, Jefferson wrote, "nullification of the act is the rightful remedy" which every state has a right to undertake. Let "no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution."(4)

It was Patrick Henry who spoke the famous words, "give me liberty or give me death," as he implored his colleagues in the Virginia legislature to take up arms against England. After the Revolution, Henry remained a crusader against centralized governmental power, which he accurately forecast would eventually destroy states' rights and erode individual freedom.

George Washington also viewed politicians as, at best, necessary evils. Politics in a democracy, Washington wrote, "are likely, in the course of time...to become potent engines, by which cunning, ambitious, and unprincipled men will be able to subvert the Power of the People, and to usurp for themselves the reins of Government."(5) Throughout history, special-interest politics had "perpetrated the most horrid enormities" and have led "to a more formal and permanent despotism." The "common and continual mischief of the spirit of Party," Washington wrote, is "sufficient to make it the interest and duty of a wise people to discourage and restrain it."(6) If Washington were alive today he would undoubtedly be denounced by Washington politicians and their media lapdogs as an irresponsible purveyor of "hate speech."

James Madison famously warned in The Federalist Papers that laws "are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority." "It is in vain," moreover, to hope that politicians will ever render these "clashing interests...subservient to the public good."(7)

If talk radio were around in 1776, the G. Gordon Liddy of the day would have been Thomas Paine, whose anti-government pamphlet, Common Sense, sold an incredible 500,000 copies in 1776 alone. "Government even in its best state is but a necessary evil," Paine warned, and "in its worst state is an intolerable one."(8) To Paine, "securing freedom and property to all men, and, above all things, freedom of religion,"(9) were the only legitimate functions of government. Americans generally agreed, and went to war to achieve this vision.

The Economic Constitution

Armed with this philosophy of government the founders adopted a Constitution for the U.S. that contained several key sections that are crucial to the protection of economic liberty.(10)

* Article 1, Section 10, the Contract Clause, states that "No state shall...pass any Bill of Attainder, ex post facto law or law impairing the Obligation of Contracts."

Think about that. All laws that interfere with the "obligation of contracts" are unconstitutional. While the contract clause was still enforced there was virtually no regulation of business, for it was understood that government had no legitimate right to interfere with freedom of contract.

* Article 1, Section 8, the Commerce Clause, gives Congress power to "regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes..."

The original purpose of the commerce clause was to prohibit protectionist tariffs on interstate trade. For decades, however, it has been perverted to allow for the federal regulation of virtually all economic behavior.

For example, in 1995 the U.S. Supreme Court (Lopez vs. U.S.) issued a ruling that shocked the statist supporters of the perversion of the commerce clause. The court ruled unconstitutional a federal law that forbade children from carrying concealed weapons within 1000 feet of a school. The federal government has no legitimate authority to make such a law, the court ruled, because such matters are the domain of local governments.

Associate Justice Steven Breyer's dissent was typical of how the commerce clause has been twisted by statist jurors. Education affects the productivity of labor, Justice Breyer argued, and the productivity of labor in turn affects commerce. Since virtually all commerce crosses state lines, the federal government should have the authority to regulate and control virtually all aspects of local public schooling.

In late 1996, Congress thumbed its collective nose at this meek attempt to resurrect Constitutional government by passing a new federal law similar to the one the Court had ruled unconstitutional.

* The Fifth Amendment's due process and takings clauses are most important with regard to economic liberty: "No person shall...be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

Virtually all economic regulation is in violation of the takings clause. This is most apparent in the numerous well-publicized governmental land grabs in the name of "wetlands" policy but is also pervasive with regard to virtually all other regulation of commerce.

* Article 1, Section 8, also strictly limits the ability of the federal government to tax and spend by specifying that "Congress shall have Power to lay and collect taxes, duties, imposts and excises" for the following purposes only: naturalization and bankruptcy law, coining money, fixing standards of weights and measures, punishing counterfeiters, establishing a post office, patents and copyrights, the Supreme Court, punishing pirates, declaring war, raising armies (but only for two consecutive years), and administering the nation's capital.

That's it. There are no other Constitutional functions of the federal government. All other powers, the Tenth Amendment declares, "are reserved to the States respectively, or to the people." These constitutional provisions have also been abandoned, so much so that former U.S. Surgeon General Joyclyn Elders even believed a federal masturbation education program was appropriate. That proposal, you might recall, was even too much for Bill Clinton, and was the reason for Dr. Elders' demise as U.S. Surgeon General.

When the Constitution Meant Something

The first chief justice of the U.S. Supreme Court, John Marshall, was a purist with regard to the contract clause. He believed the clause was perhaps the most important protector of private property, and that private property was a prerequisite for a free society. Historian Leonard Baker described Marshall's philosophy in John Marshall: A Life in Law:

The theme was that when a man earned something, neither a person nor a government should be able to take it from him. One purpose of government is, in fact, to protect a man from assaults on his property, whether those assaults be by marauders, neighbors, or an arm of government itself. The John Marshall who had grown up on the frontier, who had seen the young America split from England because American property was being confiscated in the form of taxation without representation, the John Marshall who had seen the revolutionaries in France usurp property before not only an impotent but a cooperating government, this John Marshall was well aware that government must protect a man from theft by his government.(11)

The Political Assault on the Constitution

One of the first assaults on the contract clause came in 1827 when the New York legislature caved in to lobbying pressures from debtors and passed a law providing them with "relief" from their debts. Marshall viewed this as nothing but legal plunder, and reminded the Court in his dissent in Ogden v. Saunders (1827) that "individuals do not derive from government their right to contract, but bring that right with them into society; that obligation is not conferred on contracts by positive law, but is intrinsic, and is conferred by the act of the parties. This results from the right which every man retains, to acquire property, to dispose of that property according to his own judgment, and to pledge himself for a future act."(12)

To legislatively interfere with freedom of contract, Marshall warned, would "destroy all confidence between man and man" and "to impair commercial intercourse," "threaten the existence of credit," "sap the morals of the people," and "destroy the sanctity of private faith."(13) Marshall was right: Ogden v. Sanders opened the door to unbridled legislative mischief of the kind the founders sought to prevent.

For the following half century there were continued legislative and judicial assaults on private property, fueled by an expansion of the franchise to non property owners, the rise of Jacksonian democracy which placed entirely too much importance on "the will of the majority," and the rise of egalitarianism, motivated by envy and a false and vulgar "zero-sum" vision of the economy which erroneously asserted that one man's affluence must necessarily come at the expense of another man's poverty. "Whatever exalts the few, humbles the many; and luxury and splendor grow from poverty and want," wrote the influential historian Frederick Robinson.(14)

These ideological changes were an assault on the social contract as embodied in the U.S. Constitution. A watershed in the eroding away of many of the civil and economic liberties that were once protected by the Constitution was the War Between the States. Using the excuse of a war emergency, Abraham Lincoln acted "like a dictator with regard to American Constitutional law and practice," historians Samuel Morison, Henry Steele Commager, and William Leuchtenburg wrote in their epic, The Growth of the American Republic.(15)

For example, knowing that Maryland would probably vote to secede in 1861, Lincoln suspended habeas corpus and, during a midnight military raid throughout the state, federal troops arrested thirty-one state legislators, the Mayor of Baltimore, one of the state's congressmen, and dozens of newspaper publishers. They were all thrown into military prison without trial, where some languished for years. A Maryland judge who had charged a grand jury to inquire into illegal acts of federal government officials was beaten by federal soldiers and dragged bleeding from his bench and imprisoned for over a year.(16)

When the Chief Justice of the U.S. Supreme Court, Marylander Roger B. Taney, ruled that only Congress could constitutionally suspend habeas corpus, Lincoln issued orders for Taney's arrest (which were never carried out). The mails and telegraphs were censored, and numerous newspapers were shut down.(17) The Maryland legislature was never able to convene to vote on secession, as General Benjamin Butler was given the authority to order the bombardment of Maryland's cities in order to prevent such a meeting.(18)

During the November 1861 elections in Maryland, armed federal troops patrolled the voting places and were ordered to arrest anyone suspected of opposing Lincoln. Just prior to polling day, thousands of federal troops were furloughed and instructed to cast ballots for the Republican party, even if they weren't state residents.

The War Between the States effectively destroyed the Tenth Amendment. The number of civilian federal employees increased by 500 percent from 1861 to 1864, as federal spending rose from 2% to 20% of GDP in just four years.(19) All those bureaucrats were most eager to tax and regulate virtually all aspects of American life in order to justify their jobs and expand their budgets.

During the war the first federal income tax was adopted; tariffs were raised to unprecedented levels and remained high for decades; military conscription was adopted; the federal government resorted to massive printing of paper money thanks to the National Currency Act, a precursor to the creation of the Federal Reserve in 1913; and Americans began to believe in the oxymoronic phrase, "government problem solving." Once the "problem" of Southern secession was solved, the federal army proceeded to finish off the Indians. Famed Union cavalry officers Phil Sheridan and George Armstrong Custer, along with General William Tecumseh Sherman, spent the rest of their careers killing off the American Indians in order to forge their vision of "a more perfect union."

In a particularly telling message to the Illinois legislature on January 5, 1865, Republican Governor Richard Yates concluded that "the war...has tended, more than any other event in the history of the country to militate against the Jeffersonian idea that the best government is that which governs least."(20)

The Birth of the Regulatory State

With regard to government regulation of business, another watershed event was the 1877 Munn v. Illinois case, argued before the U.S. Supreme Court. Munn operated a grain storage business in Illinois. Farmers had come to totally dominate state legislatures in the midwest, and succeeded in getting the state legislatures to impose price controls on grain storage (and on many other items which they purchased).

For most of the nation's history, price controls had been ruled unconstitutional and in violation of the contract clause. But Chief Justice Morrison Waite revolutionized the law with regard to government regulation when he wrote the majority opinion in favor of political plunder. "Property does become clothed with a public interest," Justice Waite declared, "when used in a manner to make it of public consequence, and affect the community at large. When, therefore, one devotes his property to a use in which the public has an interest, he, in effect, grants to the public an interest in that use, and must submit to be controlled by the public for the common good, to the extent of the interest he has thus created."(21)

There has never been a clearer definition of the philosophy of socialism. From that point on, virtually all business property was "up for grabs" by unscrupulous special interests. As Associate Justice Stephen Field wrote in his dissent: "If this be sound law, if there be no protection, either in the principles upon which our republican government is founded, or in the prohibitions of the Constitution against such invasion of private rights, all property and all business in the State are held at the mercy of a majority of its legislature."(22) The St. Paul (MN) Pioneer Press observed on March 13, 1877, that by effectively transferring property rights in corporations to the state legislature the decision renders property "liable to be at any time confiscated by ignorant, capricious or vindictive legislation."(23)

This was the birth of America's "transfer society" and the massive regulation of business in what is essentially a fascist economy. As Benito Mussolini himself stated in his book, Fascism: Doctrine and Institutions: "The Fascist State lays claim to rule in the economic field no less than in others."(24) In 1934, Fascist economist Fausto Pitigliani sounded almost identical to Chief Justice Waite when he wrote in The Italian Corporative State that "the conception of property and of private enterprise necessarily comes to be modified in the light of...the interests of the Nation as a whole....The function of private enterprise is assessed from the standpoint of public interest, and hence an owner or director of a business undertaking is responsible before the State for his production policy...."(25)

This has essentially been the philosophy guiding government regulation of business in the U.S. for at least the past seventy years. It describes almost perfectly the philosophy behind such misbegotten governmental escapades as the failed Clinton plan to socialize medical care in the U.S. If the American government is to be "reinvented," the proper benchmark should not be the work of any politically-contrived "study group" commissioned by Vice President Al Gore, but the U.S. Constitution.

References/Notes

1. Hunt JG. The Essential Thomas Jefferson, New York, Gramercy Books, 1994. See especially his First Inaugural Address, in which he lays out his philosophy of government.
2. Declaration of Independence, reprinted in Hunt, pp. 24-31.
3. Ibid.
4. Hunt, p. 173.
5. George Washington's Farewell Address, Sept. 19, 1796, in Allen WB (ed.). George Washington: A Collection, Indianapolis, Liberty Classics, 1988, p. 519.
6. Ibid., p. 520.
7. Federalist #10, authored by Madison, in The Federalist Papers which can be obtained at any major book store or library.
8. Paine T. Common Sense, p. 1, in Political Works of Thomas Paine, New York, Peter Eckler Publishers, 1891.
9. Ibid.
10. For an excellent discussion of the economic significance of these elements of the Constitution see Anderson TL and Hill PJ, The Birth of a Transfer Society, Stanford, CA, Hoover Institution Press, 1980, and Siegan B, Economic Liberties and the Constitution, Chicago, IL, University of Chicago Press, 1984.
11. Baker L. John Marshall: A Life in Law, New York, MacMillan, 1974, p. 654.
12. Cited in Anderson and Hill, pp. 40-41.
13. Ibid.
14. Robinson F. A program for labor. Cited in Blau J (ed.), Social Theories of Jacksonian Democracy, New York, Liberal Arts Press, 1954.
15. Morison S, Commager HS, Leuchtenburg W. The Growth of the American Republic, vol. 1, New York, Oxford University Press, 1942, pp. 699-700.
16. Ibid.
17. Wright W. The Secession Movement in the Middle Atlantic States, Rutherford, NJ, Farleigh Dickinson University Press, 1973, pp. 21-73 and Hummel E. Emancipating Slaves, Enslaving Free Men, Chicago, Open Court, 1996, pp. 141-145.
18. Official Record of the War of the Rebellion, vol 2, pp. 601-602. Cited in Wrigth, p. 70.
19. Hummel, p. 329.
20. Final Message to the Illinois General Assembly, Jan. 2, 1865, printed in the Chicago Tribune, Jan. 5, 1865, p. 2. Cited in Hummel, p. 332.
21. 94U.S. 126 (1877). Anderson and Hill, The Birth of a Transfer Society, have an excellent discussion of the significance of Munn v. Illinois.
22. 94U.S. 140 (1877).
23. Cited in Anderson and Hill, p. 64.
24. Mussolini B. Fascism: Doctrine and Institutions, Rome, Adrita Press, 1935, p. 10.
25. Pitigliani F. The Italian Corporative State, New York, MacMillan, 1934, p. x.

Dr. DiLorenzo is a Professor of Economics at The Sellinger School of Business and Management, Loyola College. His address is Loyola College, 4501 North Charles Street, Baltimore, MD 21210-2699.

Originally published in the Medical Sentinel 1997;2(3):97-100. Copyright ©1997 Association of American Physicians and Surgeons.