Remember the good old days, when one only had to watch out for the Federal Government’s twisted interpretation of the commerce clause to justify tyranny?

Well those days seem to be long gone.  The Obama Administration has been employing an old tactic lately – what some might call an imperial threat – and they’re not doing it overseas, either.

STATES UNDER THREAT

The state of Oklahoma is now the target of a direct challenge from US Attorney General Eric Holder, who is using the Civil Rights Act of 1964 as justification to violate Oklahoma’s sovereignty as affirmed by the Tenth Amendment to the US Constitution.

In a letter written to the State Attorney General in April, the Federal government used aggressive language, bringing up the possibility of withholding Federal funds appropriated for Oklahoma.  The reason?  A proposed amendment to the State Constitution, which requires voter approval, that would make English the official language of the State.

“What it indicates is the Federal Government’s contempt for the states, in this case Oklahoma, and for the idea of federal — as opposed to national — government. AG Holder believes that Oklahoma is an administrative subdivision of the USA, and that it is perfectly right for him to coerce Oklahomans to do his will. Who cares whether he has ever been to Oklahoma, met an Oklahoman, or thought about Oklahoma?” said Kevin Gutzman, an American historian and New York Times bestselling author.

Oklahoma is not alone as a state challenged by central authority in recent months.  Recently, federal firearms licensees in Tennessee and Montana received a letter from another Federal agency, the ATF, who had also issued a decree wrought with hubris – claims by the Federal government of their legal supremacy across the land.

DESTROYING LOCAL GOVERNMENT

“Both of these letters, particularly this letter to the Attorney General of Oklahoma, are very officious,” observed Rob Natelson, professor of law at the University of Montana.  “It reminds one eerily of the kinds of communications that started to come out from the Emperor to the local cities of the Roman Empire, beginning the course of the ultimate destruction of local government.”

Professor Natelson is a widely-recognized expert on the framing and adoption of the United States Constitution, and on several occasions, he has been the first to uncover key background facts about the Constitution’s meaning.  I knew this before our conversation.  What I didn’t know, however, was that he’s also been studying Roman Law and history for the past 50 years, and is responsible for several works in that field.

“During the 2nd century AD, the Roman Emperors began increasingly to interfere with local government and they did this with…letters…letters that look something like this,” continued Natelson, indicating the letter from Holder to Oklahoma.  “They started out as almost advisory and they got increasingly peremptory.  By the end of the 2nd century, there was very little local government left.  You had very few people, therefore, willing to participate in local elections; very little patriotic spirit towards one’s own province or city.  And this was the harbinger for the ultimate centralization of the Roman Empire.”

He continued with a strong, decisive tone, “Almost everyone who’s studied in that area agrees that the effect was to sap the life out of the empire, so that everything flowed to the center.  All that counted was the Emperor and his bureaucrats…and his courtiers.  I look at this and I see this letter which gets close to looking like an order from the central government down to a sovereign state legislature, and I say…WOW.  This looks like something that Septimius Severus would have sent to the local officials.”

In Columbus, Ohio last weekend, a rally in support of State Sovereignty drew around 7,000 people.  Judge Andrew Napolitano addressed the rally and made similar comments indicating the nature of our current point in US history.

“In the long history of the world, very few generations have been granted the role of defending freedom in its maximum hour of danger. This is that moment and you are that generation”

IMPERIALISM AND DECLINE

Are these men ‘crying wolf’?

“Some people might think that’s a far fetched analogy but I can’t emphasize enough how important this development is seen by historians.  When people think of the collapse of the Roman Empire they think of the fall of Rome in 476 AD.  The conversion of Rome from a relatively free state – almost a Federation – into a totalitarian state, really picked up speed and accelerated during the 2nd century [AD], with this increasing intermeddling by the central authorities in local state government.  That’s what it reminded me of,” recalled Natelson.

“[The DOJ] are not violating any law by sending these letters, but there’s a change in tone, there’s a new and disturbing tone in them.  At least the ATF letter was addressed to individuals.  This one is addressed to a state legislature – really, it’s a bit much. Besides the fact that there’s the tone, there’s the fact that they sent the letters at all.  Most of the letters that were sent out by the emperor were called rescripts, and that’s almost what [the letter from Holder] looks like.  The one difference is that a rescript was usually a reply to a request for advice.  In some ways this is worse than a rescript because this is unsolicited.  A better way to compare it would be to an imperial constitutio – an imperial decision or decree.” Natelson added.

His Roman analogy is worth considering, for several reasons.  Rome may have ended up a brutal dictatorship, but it began through a series of treaties between regions, and in some ways parallels present day America.

“When you draw comparisons between the U.S. and ancient Rome, you have to be very cautious, though Rome does have lessons to offer us and the history and results of the relentless centralization of the Empire is one of them,” Natelson continued.

THE OTHER WAY AROUND

If there’s a case to be made that the US is headed for the same sort of central plan that sucks the life out of a Republic, it would be difficult to imagine who in the United States could be encouraged by such a trend, outside of DC’s beltway.

“Certainly state legislators in Oklahoma and congressmen from Oklahoma should put the Federal Government on notice that they will support a substantial reduction in the budget for Holder’s portion of the federal bureaucracy so long as he is trying to coerce them in this way.” recommended Gutzman.

Worldwide trends in recent political elections do exhibit signs of a move away from central planner candidates, a trend the United States has been contrary to for nearly a decade, but perhaps the pendulum has reversed itself.

“As the economy grows increasingly complicated, increasingly interdependent and increasingly technological, centralized control (which never worked very well) works less and less, and people are less willing to stand for it.  This reflects a visceral gut reaction people have against centralized control, because they know from their own life it makes no sense, though it always takes time for those mega-trends to filter into the political class,” Natelson continued. “Eventually, when a mule gets hit over the head enough times it figures out what’s going on, and eventually the politicians will figure out what’s going on, too.”

People in the US are coming together by the thousands, demanding decentralization and nullification of Federal powers. Never before have the political elites had to contend with a non-partisan political force on such a massive scale.  A storm seems to be brewing; a maelstrom of everyday Americans rallying around the document designed to keep the government in fear of the people – instead of the other way around.

Bryce Shonka [send him email] is Media and Grassroots director for the TenthAmendmentCenter

More memos recently have surfaced that were written early in the Bush administration by John C. Yoo from the Justice Department’s Office of Legal Counsel — the man who gave us the administration’s horrifyingly narrow definition of torture. As difficult as it is to believe, the recently released memos are even scarier than the original torture memo.

Yoo boldly asserts that the president’s power during wartime is nearly unlimited. For example, he argues that Congress has no right to pass laws governing the interrogations of enemy combatants and the commander-in-chief can ignore such laws if passed, and can, without constraint, seize oceangoing ships.

The memos also argue that military operations in the United States against terrorists are not subject to the Fourth Amendment requirement for search warrants or the Fifth Amendment requirement for due process.

This broad interpretation of executive power and the president’s commander-in-chief role would make the nation’s founders jump out of their graves. Purposefully, the Constitutional Convention enumerated the large number of Congress’s powers in Article I, and gave most powers related to defense and foreign affairs to the people’s branch.

In particular, the war power was given to Congress. The chief executive, whose powers were enumerated in the much more brief Article II, was given the commander-in-chief role, but this was intended narrowly, only as commander of U.S. troops on the battlefield.

Instead of declaring war, which has fallen out of fashion, the Congress, after 9/11, passed a resolution authorizing the president to go after al-Qaida overseas but deliberately omitted domestic activities from that authorization.

Democrats and Republicans alike declared that they were not endorsing a broad expansion of the president’s authority as commander-in-chief.

An important example from the nation’s infancy shows how narrowly the founders regarded the president’s role as commander-in-chief. During the Quasi-War with France in the last years of the 1700s, Congress authorized President John Adams to seize armed ships sailing to French ports. Adams exceeded the congressional authorization by ordering the seizure of vessels sailing to or from French ports. The Supreme Court, in the case Little v. Barreme, ruled that Adams had exceeded the authority Congress had delegated to him. So much for Bush’s supposed intrinsic authority to seize all oceangoing ships without congressional authorization.

In 1952, President Truman, the first imperial president, seized the steel mills under his alleged “inherent power” as commander in chief — supposedly to prevent paralysis of the national economy and using the rationale that soldiers in the Korean War needed weapons and ammunition.

By a wide margin, in the case Youngstown Sheet & Tube Co. v. Sawyer, the Supreme Court struck down Truman’s executive order to seize the mills because it had no statutory or constitutional basis. Essentially, the court ruled that the president may be commander-in-chief of the armed forces but not the country.

Yoo’s assertion that Congress has no right to pass laws that impinge on the president’s claim to a broad interpretation of his role as commander-in-chief violates the core of the constitutional system of checks and balances, and for which the United States regularly criticizes despots in foreign countries.

Finally, the Fourth Amendment (requiring warrants for any search) and the Fifth Amendment (the right to due legal process) contain no exceptions for wartime. In fact, in a republic — where the rule of law should be king — crises and wartime are exactly when people’s rights are most likely to be endangered and when safeguards are especially needed.

Even more tragic and dangerous than the quagmires of Iraq and Afghanistan have been President Bush’s usurping of power from the other two branches of government and the creation of the “hyperimperial” presidency.

Ivan Eland is Director of the Center on Peace & Liberty at The Independent Institute. Dr. Eland is a graduate of Iowa State University and received an M.B.A. in applied economics and Ph.D. in national security policy from George Washington University. He has been Director of Defense Policy Studies at the Cato Institute, and he spent 15 years working for Congress on national security issues, including stints as an investigator for the House Foreign Affairs Committee and Principal Defense Analyst at the Congressional Budget Office. He is author of the books, The Empire Has No Clothes: U.S. Foreign Policy Exposed, and Putting “Defense” Back into U.S. Defense Policy.

© 2008 – Ivan Eland – All Rights Reserved