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Limited, Constitutional
Government – Its Demise In Modern Times
The answer is not all that complex. In
short, around the turn of the century certain elements of our society
began asking government to solve all manner of socio-economic problems,
whether or not WE THE PEOPLE had authorized it to do so through the
Constitution. The political branches responded. In time, the courts
stepped aside, rewriting the Constitution in the process, not literally
but through reinterpretation alone.
This took place over a somewhat brief
period, during the 1930s, though the mental groundwork had been in order
well before. Still, the original intent did hold, more or less, for our
first 150 years, during which government was largely restrained. Following
a long period of industrialization and urbanization after the Civil War,
however, we started changing our view of government. No longer did we
think of it as a 'necessary evil,' requiring restraint, as the Founders
had done. Instead, the Progressive Era saw government as an engine of
good, a tool for solving the problems of present life. Thus, we began
asking and expecting government to do things for us, to solve our
problems, which too many politicians of the era were very willing to
do.
In the way of their exercising that power,
however, stood a Constitution for limited government, which the Supreme
Court continued to enforce, albeit, with intensifying skepticism. By the
mid-1930s things were coming to a head as one New Deal program after
another went down in constitutional flames. Faced with a body of
recalcitrant jurists, Roosevelt threatened to pack the Court with six
additional members, his infamous Court-packing scheme. Not even Congress
would go along with that. Notwithstanding, the Court, now on notice, got
the message and started stepping aside, finding powers never before found
in the Constitution, ignoring rights plainly there. Under the
reinterpreted Constitution, its doctrine of enumerated powers effectively
eviscerated, the modern welfare state poured through, giving us the
massive redistributive and regulatory programs we know, and some love,
while constituionalist foundationalists, detest and resent, today. Many of
the programs that run roughshod over the rights of property owners today
are illegitimate, simply because done without any constitutional
authority, neither federal nor state authority. What is more, not only do
those programs proceed without constitutional authority but they violate
explicit constitutional guarantees, in particular, the Fifth Amendment’s
guarantee that private property not be taken without just compensation for
the owner.
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