A Declared State of "National Emergency!" [Contents]

Has the Constitution Been "Suspended?"
No, It's Worse than That

Many conservatives are convinced that Franklin Roosevelt "suspended" the Constitution by declaring a state of "national emergency." They believe that if the "national emergency" can be called off, we can return to the Constitution and big government will be eliminated.

Unfortunately, it's not quite that simple.

One of the leading advocates of this theory is Dr. Eugene Schroder. I wrote him to ask him about some of the gaps in his theory.

KEVIN CRAIG
12314 Palm Dr. #107
Desert Hot Springs, CA 92240

November 24, 1995
Dr. Eugene Schroder
P.O. Box 89
Campo, CO 81029

Dear Dr. Schroder,

I recently purchased your book, Constitution: Fact or Fiction at a John Birch Society Bookstore. I agree with your overall conclusion (viz., "fiction"), but I'm not sure I agree with your reasons.

I have read your materials, and have seen your video. I was initially captivated by your whole "conspiracy" theory -- and I would openly admit to being a "conspiracy theorist."

I do not claim to be any kind of expert. I am not a full-time "patriot" or "researcher," though I might qualify as an amateur or hobbyist. I do have a State of California-certified J.D. degree and I passed the California Bar Exam. Even so, I still think you should hear me out.

I never took a course in Administrative Law. I never really understood what it was, except that it was somehow connected to the bureaucracies. The subject is not on the Bar Exam. All of this is new to me. But in the last couple of weeks I have read a few things which have caused me -- reluctantly -- to question the "Emergency Powers" panacea.

I say "panacea" because everyone in the Patriot movement is speaking of this idea as a panacea. In an article about you and your thesis in Anti-Shyster magazine, vol. 5, no. 4, page 29, Alfred Adask writes, "End the national emergency and almost every 'alphabet-agency' will simply disappear." I truly wish it were that easy. I no longer think it is.

Let us not forget that the 1973-74 Senate hearings[1] were set in motion by a Democratic Congress which thought that by ending the "national emergency" the Congress could take power away from the Executive branch. Shifting power from one branch to another, of course, will not solve our nation's problems.

The problem for which the "emergency powers" concept is thought to be the answer (or the definitive "paradigm" which helps us unlock the "secret" to restoring "constitutional liberties") is what political scientists refer to as the "Administrative State." It is simplistic, however, to believe that all America's problems (which seem to be rooted in this "Administrative State") began when Roosevelt declared a state of "national emergency."

Your research is most interesting in indicting Roosevelt for failing to honor his oath to "support the Constitution," and Congress as well, for approving his legislation without even reading it. "Government by Emergency" has clearly continued in varying degrees since World War I.

But I believe our problems go much deeper than these declared states of "national emergency." The "Administrative State" is a reflection of our nation's failure to resist the socialist temptation. That failure goes back to the Constitution itself.

James Freedman has surveyed the "Administrative State" in his book Crisis and Legitimacy. He alerts us to the fact that our problems did not begin in 1933.
Although the rise of the administrative process is often identified with the presidency of Franklin D. Roosevelt, in fact reliance upon administrative agencies to meet emerging national problems long antedates the New Deal. It is as old as the Republic itself. The First Congress of the United States, meeting in 1789, enacted legislation authorizing administrative officers[, and other examples show that t]he administrative process thus has deep roots.

Approximately one-third of the federal administrative agencies were created before 1900, notably the Civil Service Commission in 1883 and the Interstate Commerce Commission in 1887.[2] By 1891, the Pension Office of the Department of the Interior, with six thousand employees and more than a half-million cases pending for adjudication, was, according to its commissioner, the "largest executive bureau in the world." Still another third of the federal agencies were created between 1900 and 1930, notably the Federal Reserve Board in 1913, the Federal Trade Commission in 1914, and the United States Tariff Commission in 1916. During these same decades, many state governments, responding to the influence of the Granger and Progressive movements, created administrative agencies to regulate banking, bridges, canals, ferries, grain elevators, insurance, railroad freight rates, and warehouses.

Reliance upon the administrative process was thus an established practice by the time that Roosevelt became President in 1933.[3]

In my view, this pretty much destroys the "emergency powers" theory. As you point out, much of Roosevelt's legislation was based on the emergency powers statutes left over from World War I. But note that the Fed predated WWI (1913) and its "Trading with the Enemy" Act. I would say the "Creature from Jekyll Island" is more of a disaster than anything Roosevelt did. But, so far as I can tell, it was not a result of any declared "national emergency." I wrote Adask at the Anti-Shyster and told him that Patriots must not think that just by terminating the "national emergency" that things will be "back to normal" (whatever that is). Any theory that cannot account for the rise of the Federal Reserve Board is not going to be the definitive theory which brings down the Administrative State.

I wonder if you have run across Michal Belknap's article in the Texas Law Review entitled, "The New Deal and the Emergency Powers Doctrine."[4] If you have, skip the next couple of paragraphs.

You and I would agree with Belknap, I'm sure, when he says,
When Roosevelt took office, the Court was still interpreting the Constitution in such a way as to impose significant restraints on the regulatory activity of the federal government. By the end of the New Deal, however, federal power over economic and social matters had become essentially limitless.
Your conclusion seems to be that this change took place because of the acceptance of the "emergency powers" concept. Belknap seems to disagree:
This view, however, is incorrect. The change occurred because the American legal community could not accept the emergency powers doctrine. Several decisions handed down by the Supreme Court during and just after World War I had suggested that a crisis temporarily expanded the sphere of federal power. New Dealers, assuming that a domestic emergency would have the same constitutional significance as a military one, offered the emergency powers doctrine as a constitutional justification for their recovery program. Most lawyers and judges, including the Justices of the Supreme Court, accepted neither the analogy between wars and depressions nor the legal argument based upon it.[5]
Belknap shows that Roosevelt's New Deal legislation met with sustained opposition in federal courts.[6] Then Belknap claims that the entire concept of "emergency powers" was repudiated by the Supreme Court, first in Panama Refining Corp. v. Ryan[7] and then more dramatically in A.L.A. Schecter Poultry Corp. v. U.S.[8]

In Schecter, "the NRA attorneys, led by General Counsel Donald Richberg, strongly advocated the use of the 'emergency powers doctrine.'"[9]

The Justices did not accept the government's arguments. . . . Speaking for a unanimous Court, Chief Justice Hughes also dealt a death blow to the emergency powers doctrine. Counsel for the government's opponents relied on [Ex Parte] Milligan,[10] arguing that an "emergency does not increase constitutional power nor diminish constitutional restrictions." Yielding to their appeal, the Chief Justice retreated from the near-endorsement he had given the emergency powers doctrine in [Home Building & Loan Association v.] Blaisdell.[11] "Extraordinary conditions do not create or enlarge constitutional power," he declared. The Court conceded that such conditions might well require extraordinary remedies, but that did not "justify action which lies outside the sphere of constitutional authority." Those who acted under authorization of the Constitution, the Court said, were not free to transcend the limitations upon the power that it granted merely because they believed that more or different power was necessary.

After Schecter, the emergency powers doctrine appeared to be dead.[12]

I think that Belknap's thesis is probably correct, although your research is still very important. If you haven't worked through Belknap's arguments, I would be happy to send you my analysis. In a nutshell, the Judicial branch and the Legislative-Executive branches[13] disagreed on what kind of theory should serve as window-dressing for their "Administrative State." One said "Emergency Powers," the other said "No reason to suspend the Constitution; let's call it 'Commerce Clause.'"[14] The "Commerce Clause" people seem to have won. But it's just a different name for the same dictatorship.

The shift in the Supreme Court's attitude, from ruling more in terms of free enterprise at first, and then shifting to such a degree that "Beginning in 1937, with the National Labor Relations Act, the Supreme Court upheld every piece of New Deal legislation that it considered,"[15] is itself an interesting story, involving intrigue at the highest levels of government.[16]
Finally, Belknap really shakes up anyone who believes that by terminating the "national emergency" we can end the "Administrative state." His conclusion is that "The growth of federal power, however, proceeded further under a policy of 'judicial restraint' than it would have under the emergency powers doctrine."[17] This underscores my conclusion that terminating the "national emergency" will solve very little. No one in the "Administrative State" is going to admit that the Constitution was ever "suspended." They are going to say that the whole "Administrative State" is Constitutional; that they have been following the Constitution all along. These people are completely without principle.[18] The title of your book is perhaps truer than you think: The Constitution is a "fiction." We better wake up and smell the coffee.
I have my own theory as to why the Constitution is a Fiction, and by the time you read this letter, I may have judgment passed on that theory by a Federal District Court in Los Angeles.

My case in Federal Court involves the refusal of the State Bar of California to admit me to the practice of law. Though I am otherwise qualified, I have not been admitted because I have demanded a modification of the required oath to "support the Constitution." There are two reasons why I refuse to take the present oath. The first is that I am a Theocratic Christian, and the Constitution is an apostate, Secular Humanist covenant. Dr. Gary North has proven this thesis in his 800-page historical study, Political Polytheism: The Myth of Pluralism.[19] It used to be the case that only Christians could hold public office.[20] It is now the case that Christians are not allowed to become attorneys, because the Constitution is (rightly) held to be a secular document, and a Christian's loyalty is to God -- a loyalty which is prior to any loyalty he has to the State. The U.S. Supreme Court has ruled that Christians cannot take the oath to "support the Constitution" in "good faith."[21]

The second reason I will not take the oath is that I simply do not "support" the Constitution. It was fine for a generation that was moving away from hereditary monarchy toward self-government, but the Constitution is now being used to move us away from self-government. I support "self-government," not "other-government," "political" government, or any other form of institutionalized violence. The "Administrative State" is not the result of Roosevelt's "national emergency" -- it is the unfortunate (but logical) conclusion of the crypto-Communist Constitution itself, which lets the socialist camel stick its nose in the tent. Keep in mind this chilling fact: The Constitution itself says that the Federal Government should run the post office. We're obviously not dealing with people who had a thorough understanding of laissez-faire economics. Their defective economic theories are latent in the Constitution itself. Christians should no longer "support the Constitution." It is "syncretistic." It is the Constitution, not a state of declared "national emergency," which is at the heart of our nation's problems.

Belknap cites the case of U.S. v. Macintosh,[22] which overruled the case of Holy Trinity Church v. U.S.[23] This transformed America from an ostensibly Christian nation into a secular "Garrison State." I believe this is the true source of our nation's problems. This is the thrust of my case in Federal Court. I would appreciate your prayers for Judge Ronald S.W. Lew, as he considers my case, that he would make a wise decision. I would be happy to send more information on my case and my Biblical critique of the Constitution.

Thank you very much for your research, and it would be a delight, and I would very much appreciate, hearing from you.

Sincerely,



Kevin Craig
Dr. Schroder did not respond.

NOTES

(1) Emergency Powers Statutes: Provisions of Federal Law Now in Effect Delegating to the Executive Extraordinary Authority in Time of National Emergency; Report of the Special Committee on the Termination of the National Emergency, U.S. Senate, 93rd Cong., 1st Session, (1973).

(2) While the rest of America was celebrating the bicentennial of the Constitution (1787), the Public Administration Review (organ of the Administrative State) was celebrating the centennial of the ICC. Richard J. Stillman II, "The Constitutional Bicentennial and the Centennial of the American Administrative State." (Symposium: The American Constitution and the Administrative State.) 47 Public Administration Review 4-8 (Jan-Feb 1987). [kc]

(3) J. Freedman, Crisis and Legitimacy 4 (1978).

(4) M. Belknap, "The New Deal and the Emergency Powers Doctrine," 62 Tex. L. Rev. 67 (1983).

(5) Id., at 67-68.

(6) Id., at 94-96.

(7) Panama Refining Corp. v. Ryan, 293 U.S. 388 (1935).

(8) A.L.A. Schecter Poultry Corp. v. U.S., 295 U.S. 495 (1935).

(9) Belknap, at 96.

(10) 71 U.S. (4 Wall.) 2 (1866). See Belknap's discussion of Milligan at 78-79.

(11) 290 U.S. 398 (1934). A good discussion of the hideous Blaisdell case is found in H. Holzer, Sweet Land of Liberty? 42-54 (1983).

(12) Belknap, at 97. I should note that the whole point of Belknap's article is that even though the "emergency powers" doctrine was killed, it should be revived as a useful tool of government policy. Obviously he is not on our wavelength.

(13) Congress simply going along with FDR's plans

(14) Or the "general Welfare" clause (Art. 1, S 8, cl. 1). The Court called their policy one of "judicial restraint."

(15) Belknap, at 103.

(16) M. Ariens, "A Thrice-Told Tale, or Felix the Cat." (Role of Felix Frankfurter in 1937 Constitutional Crisis), 107 Harvard Law Review 620 (1994); G. White, "Felix Frankfurter, the Old Boy Network, and the New Deal: Placement of Elite Lawyers in Public Service in the 1930's (Legal History Symposium), 39 Arkansas Law Rev. 631 (1986); S. Crockett, Frankfurter's Red Record (1961).

(17) Belknap, at 103. (quotation marks added)

(18) I speak of the architects of the "Administrative State." The functionaries of the Administrative State are average Americans. That is to say, they are docile, ignorant of the Constitution, and will do anything if "that's my job." Millions of people take an oath to "support the Constitution" in order to get a government check, ignorant of the fact that the Founding Fathers never intended a majority of people to be getting checks from the government. Covetous ignorance, not some kind of "unique" evil, is the taproot of Naziism.

(19) I like to explain it this way: If you are no big fan of Lyndon Johnson's Great Society, keep in mind that the time interval between Johnson and the Constitution is about the same as that between the Constitution and the Puritans' Mayflower Compact. I believe that as far as America had strayed from the Constitution by LBJ's day, so the Founding Fathers had strayed from the Puritans by 1789. For a much longer explanation, read Gary North's book, Political Polytheism: The Myth of Pluralism (1989). At the end of a rich 800-page historical/theological study, he concludes,

There is no escape from this conclusion: the United States Constitution is an atheistic, humanistic covenant. The law governing the public oath of office reveals this. Unfortunately, this oath is rarely discussed. Christians who do not analyze social and political institutions in terms of the biblical covenant model are not sufficiently alert to this crucial but neglected section of the Constitution. The Constitution is not a Christian covenant document; it is a secular humanist covenant document." (at 403-404)
(20) See the Delaware Constitution (1776), Art. 22.

(21) In re Summers, 325 U.S. 561, 65 S.Ct. 1307, 89 L.Ed 1745 (1945); reh. den. 326 U.S. 807, 66 S.Ct. 94, 90 L.Ed. 491 (1945). Most Christians are not aware of this case, and so I do not fault them for having taken the oath. But I know about it. Thus, I am not simply "refusing" to take the oath; under this ruling, I am not permitted by the U.S. Supreme Court to take the oath. I am seeking to have this case and the case of Torcaso v. Watkins 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961) limited.

(22) 283 U.S. 605 (1931). See Belknap at note 223.

(23) 143 U.S. 457 (1892).