Feeding the public frenzy were the muckrakers. Journalists sold millions of books and articles exposing the dirty under-belly of bad conditions—grotesque conditions in the meat-packing industry, packaging of spoiled food, illegal drugs, child labor, and prostitution (white slavery).
For the progressives, this was an important transition opportunity. They saw the chance to break from the Constitution and grant the federal government fantastic control over the States—a new authority to become a national regulatory dispensary outside the Founder’s restraints—a top-down, Ruler’s Law police power.
Two Ways to Dismantle the Constitution
Federal power was brilliantly chained down, and the progressives somehow needed to break those chains. They had two options:
Amendments—Amending the Constitution was not a very practical solution. The amending process opened up an issue to way too much analysis and discussion for the progressive’s comfort. And, it took too much time, and ran the risk of being rejected. For almost a century the Constitution had remained untouched except for the fallout from the Civil War and reconstruction. The progressives did not pursue amending the Constitution until a groundwork was first laid.
Reinterpretation—The easier route to expand federal power was to assert national authority and then hope the Supreme Court would uphold the claims. Part of the public relations campaign had to promote the notion that the Constitution was a living, growing instrument intended to adjust as the nation and its economic complexity expanded. The fact that natural law and principles of freedom never change was beside the point. President Roosevelt and the progressives took the “reinterpretation” route, and fortunately for them, they eventually had a Supreme Court that went along.Making the Constitution Unconstitutional
The progressives’ first and most important constitutional weapons were the powers of regulating commerce and the power to tax. The strategy was, first, to bring to light or exaggerate social horrors, and second, to arouse public opinion to demand federal legislation to fix it. Here is the evolution:
Give Congress power to outlaw trade. In 1895, Congress tried to control gambling by outlawing the buying or selling of lottery tickets across State lines (Federal Lottery Act, 1895). A man was caught trying to ship lottery tickets privately from Texas to California. Could Congress actually stop lottery ticket sales inside the State boundaries of California because the tickets arrived from Texas? The Supreme Court said yes—Congress could outlaw, forbid, reject, and ban whatever items it chose from being shipped across State lines. Writing for the majority, Justice Harlan said, “Congress may arbitrarily exclude from commerce among the states any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter what the motive....”421
Give Congress power to arbitrarily tax unequally. At the turn of the century an amazing butter substitute called “oleomargarine” appeared on the market and was cutting into the sales of natural butter. In 1902, angry dairymen repeated the actions of their guildsmen ancestors and tried to summon government power to eliminate the competition. They succeeded. In 1902, Congress raised the tax on artificially colored margarine to $.10 (ten cents) a pound (The Oleomargarine Act, 1886, amended 1902). When the case went to the Supreme Court, the justices ruled that Congress rightfully had the power to tax whatever it pleased, even to eliminate the competition to the dairymen’s butter industry. This case made it clear: there are no limits on what Congress can do with the power to tax—and a willing Supreme Court to back them.
Violate State boundaries to control food production. Dr. Harvey Wiley, an employee in the Department of Agriculture, did research that showed a trend of dangerous commercial preservatives, coloring chemicals, and food preparation becoming “almost universal” in America. Added to this was the impact of Upton Sinclair’s The Jungle, and actions by other social activists that further inflamed the public about food safety. Popular outrage pushed Congress to exert regulations to protect the public. And just like that, a federal law requiring inspection of meat and outlawing adulterated products was signed into law on June 30, 1906 as the Pure Food and Drug Act.
Force local meat packers to obey federal rules. On June 30, 1906, the Meat Inspection Act was signed into law. Inspectors were sent to every inter-state meat-packing plant to look for diseased animals or putrefying carcasses. Rejected meat or meat that was not inspected could not be shipped. No one wants dangerous meat and food in the market, but such encroachment on States’ rights was ignored as a possible danger by these various regulatory Acts.
Take State property for federal use. The Weeks Act (1911) gave the federal government power to purchase, preserve, and control watershed areas inside the States and turn them into national forests. Part of the cost was to be carried by the States with the so-called “grant-in-aid.” The idea was to offer money to a State for some mutually beneficial project. To receive the federal money, States had to match the grant with equal money, and allow the federal government to supervise and approve the projects. Similar projects had been tried already—that of sharing the costs of maternity welfare, of infant welfare, of vocational training, and of aid to disabled veterans.
But something was amiss. People feared this was a means to break down the sovereignty of local self-government. After a dozen years of grants-in-aid, President Calvin Coolidge expressed concern in 1925: “The functions which the Congress are to discharge are not those of local government but of National Government. The greatest solicitude should be exercised to prevent any encroachment upon the rights of the States or their various political subdivisions. Local self-government is one of our most precious possessions .... It ought not to be infringed by assault or undermined by purchase.”422
People watching this friendly usurpation of State responsibilities feared that grants-in-aid were simply a crafty way to expand federal power and destroy State sovereignty. It allowed the national government to take over functions that belonged to the States. States were pressured to participate because, either way, their tax dollars were taken for these programs. If they refused to participate the money would go to other States—a clear violation of constitutional spending authority in Article 1.8.
Force the States to comply with federal child labor rules. The 1900 census showed that 2 million children were working in factories, mines, mills, fields, stores and on the streets all across the U.S. The census result triggered a national clamor for more control over child labor. To further stir alarm, a photographer was hired to document some of the abuses, and the call to spare children from accidents and damage to their health went far and wide.
Most children at this time were teenagers, and were in the work force because of dire necessity. Working in the deplorable factory conditions that existed in those days was by choice because it was a better alternative than unemployment, starvation, and death.
Congress justified the Child Labor Act (1916) with its interstate commerce authority. It made it illegal for anyone to ship products produced by children under age 14, and prohibited labor by children 14-16 for more than 8 hours a day, 6 days a week—and no night work allowed. Preventing the abuse of children at the work place is important. However, allowing the government to dictate labor rules prevented the children, their parents, and the employers their freedom to make a contract, a right that was protected in Article 1.10.1 of the Constitution.
The Act was signed into law, but was declared unconstitutional in 1918. Another attempt was made in 1918—also declared unconstitutional. The Court said the government wasn’t regulating, it was prohibiting—a sudden recognition of the true principle involved that apparently was ignored for the lottery, pure food, and white slave laws. Not until 1938 did the government win police power over State’s rights with the passage of the Fair Labor Standards Act that fulfilled most of the original intents of the earliest child labor laws.
Force States to submit to federal narcotics control. The Harrison Narcotics Tax Act
(1914) was created to get the names of producers and track their illegal drug transactions. After the Spanish-American War of 1898, the U.S. acquired the Philippines. The population there had a severe and widespread problem with opium addiction. Opium abuse was growing in the U.S., particularly among immigrants from opium-producing countries.
The problem was hoisted up the flag pole and drew a lot of international attention. This resulted in the first international drug control treaty signed in 1912. Meanwhile, over in America, the importation and abuse of opium was spreading. By 1914, an estimated 1 in 400 U.S. citizens was addicted.423 This same year, 46 States had laws against cocaine and 29 States had laws against opium, morphine, and heroin.
The Harrison Act required everyone who manufactured, sold, or distributed narcotic drugs to register with the government. They had to pay $1 a year in taxes, keep detailed sales records, and use special authorized forms whenever making drug transactions. It also outlawed recreational use of the drugs. The tax really had no value other than to force narcotic dealers to let the government know who they were, where they lived, and how much product went through their hands—another usurpation of internal State police power by the federal government.
Portraits of Progressive Change
The progressive era familiar to most people reached prominence from 1880 to 1920. Even though the formal Progressive Party dissolved in 1916, the mind set continued to pursue the same ends through other means.
At its beginning, the progressive movement was a sporadic, spontaneous uprising that called for more freedoms for some things, but more central control over others. In the progressives’ gallery of infamy hang a thousand portraits of change, change purported to be better for America and the world—
Eliminate the Supernatural: Progressives insisted that humans are not born free, nor is freedom a gift of God. John Dewey (1859-1952) said freedom is not “a ready-made possession ... it is something to be achieved.”424 He said any idea of natural rights and liberties exist only in “the kingdom of mythological social zoology.”425
Eliminate Concept of Natural Rights: Progressive writer Charles Merriam (1874-1953) also rejected unalienable rights: “The individualistic ideas of the ‘natural right’ school of political theory, indorsed [made valid] in the Revolution, are discredited and repudiated.... The origin of the state is regarded, not as the result of a deliberate agreement among men, but as the result of historical development, instinctive rather than conscious; and rights are considered to have their source not in nature, but in law.”426
Promote All-powerful Government: John Dewey said government’s role was to create laws and structure “not [as] means for obtaining something for individuals, not even happiness. They are means of creating individuals ....” In other words, it was government’s role to properly train people, create them, and fabricate their lives with education, structure and economy into ideal servants of society.
Promote Unlimited Government: Charles Merriam said the public wants unlimited government: “The public, or at least a large portion of it, is ready for the extension of the functions of government in almost any direction where the general welfare may be advanced, regardless of whether individuals as such are benefited thereby or not.”427
Promote Intrusive Government: Theodore Woolsey (1801-1889) was president of Yale College. His vision was a government meeting all human needs: “The sphere of the state may reach as far as the nature and needs of man and of men reach, including intellectual and aesthetic wants of the individual, and the religious and moral nature of its citizens.”428
Dismiss God: The Humanist Manifesto, published in 1933, was an accumulation of progressive philosophy that rejected God, religion, and creation. The Manifesto declared, “Religious humanists regard the universe as self-existing and not created.” And, “Humanism believes that man is a part of nature and that he has emerged as a result of a continuous process.”429
Replace God With the State: Georg Wilhelm Friedrich Hegel (1770-1831), the originator of the idea of class conflict (dialectics), elevated the state as the “divine idea as it exists on earth.” “All the worth which a human being possesses,” he said, “all spiritual reality, he possesses only through the State. ...”430 “We must ... worship the State as the manifestation of the Divine on Earth.”431 Progressives embraced Hegel and his ideas.
Deify the State: John Burgess (1844-1931) was an influential political scientist who echoed Hegel, and said the ultimate end of the state is not heaven above, but the “perfection of humanity, the civilization of the world, the perfect development of the human reason and its attainment to universal command over individualism; the apotheosis of man.”432 Apotheosis means “man becoming God.”
God is Dead: Friedrich Nietzsche (1844-1900) was a German philosopher who viewed God as either a mythical creation or the rejected founder of western culture who was usurped by materialism. A preoccupation on things secular led Nietzsche to declare, “God is dead. God remains dead. And we have killed him. How shall we comfort ourselves, the murderers of all murderers?”433 His words helped spark the anti-God revolution that lasted for generations.
No Rights Except as Declared by State: John Burgess wrote in 1891, “The state cannot be conceived without sovereignty, i.e. without unlimited power over its subjects.” He said the state must have “original, absolute, unlimited, universal power over the individual subject, and all associations of subjects.”434
Replace “Republic” With “Democracy”: Progressives pushed for removing representatives and replacing them with a direct popular vote. They wanted the power to approve new laws by direct vote, remove public officials by direct vote, nominate candidates by direct vote, elect senators by direct vote, and legalize the vote by women. The last two goals were achieved with the 17th and 19th amendments to the Constitution—the former (the 17th, direct election of senators) turned out to be a foolish mistake; the latter (suffrage) was good, but it was already being adopted in several of the states by the time it was formalized as an amendment.
Make Taxation Easy: Taxing individual income became a reality during the Civil War with a flat tax of 3 percent that was expanded to 5 percent. Various tax plans were put forward until 1909 when an amendment was passed by Congress. It was ratified in 1913 as the 16th amendment, allowing a direct tax on wages, salaries, commissions, etc. The progressives wanted—and got—the rich to be forced to pay more, a levelling scheme proposed by Marx in 1848.435
Eliminate Private Property: The American dream of building a business into a large generator of jobs and prosperity was viewed with envy by the progressives. They called for large monopolies of corporations to be nationalized—taken over by the federal government, or otherwise fiercely regulated. With the outbreak of hostilities in World War I, a preview of the progressive’s world was unveiled:
Eliminate Self-Sufficiency: The Food and Fuel Control Act of 1917 imposed limits on how much food an American could have on pantry shelves. It also regulated the production and consumption of “distilled spirits”—all of this “to support the war effort.”
Invest Kingly Powers in Herbert Hoover: During WWI, Hoover could fix food prices, act against hoarding to ensure sufficient food for the troops, control food production and distribution, control profits, and tell farmers what to grow. He set guidelines to reduce consumption with “meatless Tuesdays,” “sweetless Saturdays,” and “wheatless Mondays.” These were voluntary for the private sector.436
Invest Kingly Powers in Harry Garfield: During WWI, Garfield could save coal by closing non-essential factories (which he did), setting prices, and controlling production, shipments, and distribution. Garfield distributed fuel oil in similar fashion, and called for voluntary “gasless Sundays,” “lightless nights,” and “heatless Mondays.”437
Can’t Own Gold: In 1933, President Franklin D. Roosevelt signed an executive order “forbidding the hoarding of gold coin, gold bullion, and gold certificates” by American citizens. The theory was this prevented
the circulation of money that would help ignite the economy. There were rumors that safety deposit boxes were being searched for gold—in rare instances this did take place, but not as an official government policy.438
Can’t Control Private Railroad: Owners of small railroads lost their freedom to set fees for hauling goods because of the Shreveport Rate Case (1914). Congress said the Commerce Clause (Article 1.8) gave it power to tell a private rail owner to charge the same rates inside a State as those carriers running cross-country through his State. Congress didn’t want the little guy competing by charging too little, or “soaking” the carriers with higher rates if his was the only rail line available. The Supreme Court agreed—Congress could force the little guy to set rates the same as the interstate carriers. Ever since the Shreveport Rate Case, this ruling has been used to expand federal power beyond “interstate commerce,” and into just about every aspect of life.439
Can’t Set Prices: Theodore Roosevelt believed in top-down control: “We wish to control big business so as to secure among other things good wages for the wage-workers and reasonable prices for the consumers.”440 “I believe in a larger use of the Governmental power to help remedy industrial wrongs.”441
Can’t Consume As One Pleases: The consequences of alcohol and drunkenness were such a blight on human progress that the progressives successfully pushed through the 18th amendment prohibiting the consumption of alcoholic beverages. As noted earlier, this action was nothing short of socialism at work. An amendment that does not protect rights, even the right to get smashed, is not in harmony with the intent and design of the Constitution.
Can’t Set Wages: In 1912, the Progressive Party wrote into their platform a call for set wages. “We pledge ourselves to work unceasingly in State and Nation for ... Minimum wage standards for working women, to provide a living scale in all industrial occupations....”442
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