"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance." ~ Declaration of Independence

We no longer have legal authority to stop government from riding roughshod over our rights.  Our ally in Washington used to be the Constitution.  Now we depend more on politicians bickering among themselves, along with their fear of losing office, to protect us from their schemes.

Many of them would love to throttle us with a national ID card, but they're hesitating.  Or they're trying to slip it on us without really passing a law, through political legerdemain.  They're considering all kinds of angles, except the one that respects our rights.

Last November, at a speech delivered at the University of Missouri, Supreme Court Justice Antonin Scalia told an audience of roughly 350 Americans that if they didn't want ID card legislation, they should propose a constitutional amendment to prohibit it.  [1]

No voice dissented.

During the Q & A period after, someone asked him if an ID card law would violate privacy rights.  He replied that the Fourth Amendment doesn't mention a national ID card.

It sounds like a bad joke but it wasn't.  We hear from an authority as high as a supreme court justice that government that can do whatever it's not prohibited from doing.  And given the right crisis, it has no prohibitions.

The Constitution's original intent was to restrain federal power.  The Tenth Amendment spells this out clearly:  "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

Our founders were students of history and knew better than to turn government loose on its people.  So what went wrong?

If we open our history books we'll notice the amendment's inversion got started a long time ago.  In 1819, Chief Justice John Marshall declared that it "is the duty of the court to construe the constitutional powers of the national government liberally."  [2]  Marshall said the government had, and needed to have, many implied powers.  As an example, he cited the designated power granted to Congress to punish counterfeiting, which he said also gave Congress the implied power  to punish the offense "of uttering and passing the coin thus counterfeited."

On such reasoning he blessed the government's creation of a National Bank.  "It is not enough to say, that it does not appear that a bank was not in the contemplation of the framers of the constitution," he argued.  "It was not their intention, in these cases, to enumerate particulars.  The true view of the subject is, that if it be a fit instrument to an authorized purpose, it may be used, not being specially prohibited.  Congress is authorized to pass all laws 'necessary and proper' to carry into execution the powers conferred on it."

If the government's "authorized purpose" is to stop terrorism, for example, it may "pass all laws 'necessary and proper'" to eliminate terrorists.  Since an ID card is not "specially prohibited," there are no legal barriers to stop Congress from passing it.

And when ID cards don't do the trick, we move into prefrontal lobotomies, because they, too, could be construed as "necessary and proper."

Marshall's opinion could've brought the country to its knees, but the climate wasn't right for exploiting it fully.  Aside from some major hits to our liberty during the War of Secession and a few governmental attacks on business in the decades after, we were still in decent shape when the 20th century rolled in.

By then, socialism was a hot item in Europe and growing fast in the United States.  In 1913, the government, cashing in on "soak the rich" sentiment, arrogated to itself the power to tax our incomes.  In the same year, to exploit popular distrust of bankers, they set up another national bank, the Federal Reserve System.  With the ability to confiscate our income and manipulate the money supply, government had two essential tools for aggrandizing their power.

The 1929 crash that resulted from Federal Reserve Board meddling gave statists an opportunity to get us in deeper trouble.  [3]  "Look at the mess unbridled capitalism has caused," they lied.  "Let us run things."  People not only believed them, they all but worshipped their leader, Franklin D. Roosevelt.

In United States vs. Butler (1936), the Supreme Court declared, in a politically motivated dictum appended to the case, that "the power of Congress to authorize expenditure of public moneys for public purposes is not limited, by the direct grants of legislative power found in the Constitution. "  [4]  The Court's guiding light was now Alexander Hamilton, who believed government should be pretty much unrestricted, thus opening up the General Welfare clause and making a mockery of the Tenth Amendment.

But the hogs needed a little fattening before the slaughter could begin.  Enter FDR.  "The courts . . . have cast doubts on the ability of the elected Congress to protect us against catastrophe by meeting squarely our modern social and economic conditions," he said in a fireside chat of March, 1937.  [5]  He encouraged Americans to read the Constitution, knowing most wouldn't, and claimed it gave government the power to meet "national problems."  In the early years of the Depression, he told his listeners, the Court had had the gall to declare many of his proposals unconstitutional.  He therefore called for a Court "that will refuse to amend the Constitution by the arbitrary exercise of judicial power--in other words by judicial say-so."  He threatened to force justices to retire at age 70, six of whom would've qualified immediately, and to push for amendments to the Constitution if the Court didn't change its philosophy.  

As Cato Institute's Roger Pilon has observed, "if the Framers had meant for Congress to be able to do virtually anything it wanted . . . why would they have bothered to enumerate Congress' other powers, much less defend the doctrine of enumerated powers throughout the Federalist Papers?"  [6]

But the Court capitulated to Roosevelt.  A few weeks after he issued his threat, the Court upheld a minimum wage law in West Coast Hotel vs. Parrish (1937), clearly acting against precedent.  [7]

"Our modern regulatory and redistributive state--the state the Framers sought explicitly to prohibit--has arisen largely since 1937," Pilon notes.

Is there any way to stop the federal juggernaut?  Cato Institute recommends four practices Congress can follow, summarized as follows:

(1) Get people talking about constitutional issues by encouraging constitutional debate in Congress.

(2) Subject all proposals to constitutional scrutiny and debate before voting on them.

(3) Return power to the states and the people, in those cases where it was wrongly taken.

(4) Put judges on the Court who recognize the Constitution as a limitation on government.  [8]

On a more concrete level, we the people might consider some action of our own.  We could take up a collection to swap out the octagonal stop signs in Washington, D.C. and replace them with decagonal signs--to remind Congress they have very little to do in their capacity as lawmakers, by virtue of the Tenth Amendment.  To aid their alarmingly short memories, we could send them all decagonal desk ornaments with the same blunt message.

We need to make them forever remember that instead of the buck stopping with them, it was never handed over in the first place.

------
1.  http://www.wired.com/news/politics/0,1283,48419,00.html -- Scalia and national ID cards

2.  http://www.tourolaw.edu/patch/McCulloch/ -- McCulloch v Maryland, 1819

3.  Rand, Ayn, "Capitalism: The Unknown Ideal," (article by Nathaniel Branden, "Are periodic depressions inevitable in a system of laissez-faire capitalism?"), New American Library, New York, 1962.

4.  http://freeutah.org/issues/CHILD/body_dictum.html -- US vs Butler, 1936

5.  http://www.hpol.org/fdr/chat/ -- Roosevelt fireside chat, March 9, 1937

6.  http://www.cato.org/testimony/ct-fd720.html -- Roger Pilon, Ph.D., J.D., Congressional Testimony, July 20, 1995

7.  http://www.unt.edu/lpbr/subpages/reviews/leuchten.htm -- The Supreme Court Reborn

8.  http://www.cato.org/pubs/handbook/handbook107.html -- Cato Handbook for the 107th Congress, "Congress, the Courts, and the Constitution"