The State Will Always Transcend Its Limits

Tyler Durden's picture




 

Submitted by Pater Tenebrarum of Acting-Man blog,

Detaining People Indefinitely on the President's Say-So

A law suit filed by journalists and academics (including Chris Hedges, Daniel Ellsberg, and Noam Chomsky) against the NDAA statute that provides for the secret detention of 'terrorism suspects' by the military on the president's say-so, while subsequently denying them any judicial review or recourse, initially ended with the lower court siding with the journalists.

The journalists complained because the law obviously has a chilling effect on their journalistic activities. How can they report on terrorism, when e.g. an interview with a terrorism suspect could land them in indefinite detention without trial? A few excerpts from the reasoning behind the lower court's decision (a decision it reaffirmed when the government challenged it):

“Here, the uncontradicted testimony at the evidentiary hearing was that the plaintiffs have in fact lost certain First Amendment freedoms as a result of the enactment of § 1021," Forrest wrote.

 

At a hearing in March, three of the plaintiffs testified that the possibility of government repression under the NDAA made them reconsider how they approached their journalism and activism.

 

Guardian journalist Naomi Wolf read testimony from Jonsditir, who prepared a statement saying that she would not visit the U.S. for fear of detention. Forrest alluded to this testimony in her decision.

 

"Hedges, Wargalla, and Jonsdottir have changed certain associational conduct, and O'Brien and Jonsdittir have avoided certain expressive conduct, because of their concerns about § 1021. Moreover, since plaintiffs continue to have their associational and expressive conduct chilled, there is both actual and continued threatened irreparable harm," she wrote.

 

"In addition, it is certainly the case that if plaintiffs were detained as a result of their conduct, they could be detained until the cessation of hostilities – i.e., an indeterminate period of time," Forrest continued.

 

"Being subjected to the risk of such detention, particularly in light of the Government's inability to represent that plaintiffs' conduct does not fall with § 1021, must constitute a threat of irreparable harm. The question then is: Is that harm immediate? Since the Government will not say that the conduct does not fall outside of §1021, one cannot predict immediacy one way or the other. The penalty we know would be severe."

(emphasis added)

The government apparently wasn't able to completely rule out that it might actually end up detaining one of the plaintiffs one day. It is also worth pointing out here that there can actually never be a 'cessation of hostilities' in the 'war on terror'. After all, terror is a tactic, and will always exist. Hence, this war is going to last forever, similar to other wars waged by the government, such as the completely ineffectual and counterproductive 'war on drugs', or the utter failure known as the 'war on poverty', to name two boondoggles that are evidently open-ended.

It is also well known that the 'war on terror' continually produces new terrorists, as e.g. shown by the enormously successful Al Qaeda recruitment program underway in Yemen by means of drone attacks (for every terrorist killed,  several new ones reportedly join up). In short, it is another never-ending war.

If one is actually detained under this statute, it may therefore well turn into a life sentence – only, there won't be any sentencing. Not one detainee will ever get his day in court.

Shortly thereafter, a federal appeals court of three Obama-appointed judges restored the indefinite detention provision of the NDAA by issuing a stay of the lower court's decision:

A federal appeals court has extended a temporary stay of a district court judge's order barring the government from using an indefinite detention provision in a defense bill passed by Congress and signed by President Barack Obama late last year.

 

A three-judge motions panel of the U.S. Court of Appeals for the 2nd Circuit issued the order Tuesday afternoon, indicating they saw flaws with the scope and rationale for U.S. District Court Judge Katherine Forrest's original order blocking the disputed provision of the National Defense Authorization Act of 2011.

 

"We conclude that the public interest weighs in favor of granting the government's motion for a stay," Appeals Court Judges Denny Chin, Raymond Lohier and Christopher Droney wrote in a three-page order that also expedited the appeal.

 

[…]

 

All three judges on the motions panel were appointed to the appeals court by President Barack Obama.

(emphasis added)

The last hope for the case was the next stage of the appeals process – in other words, the plaintiffs were hoping that  the Supreme Court would deign to hear it. Fat chance.

 

NDAA

 

Challenging Odious Laws Becomes Impossible

No-one should be surprised that the same old trick worked once again: the Supreme Court agreed with the government that the plaintiffs 'have no standing'.

“The U.S. Supreme Court on Monday handed a victory to President Barack Obama's administration by declining to hear a challenge to a law that allows the U.S. military to indefinitely detain people believed to have helped al Qaeda or the Taliban.

 

The high court left intact a July 2013 2nd U.S. Circuit Court of Appeals decision that journalists and others who said they could be detained under the law, did not have standing to sue.

 

The provision in question is part of the National Defense Authorization Act, which the U.S. Congress passes annually to authorize programs of the Defense Department.

 

It lets the government indefinitely detain people it deems to have "substantially supported" al Qaeda, the Taliban or "associated forces."

 

Journalists and activists whose work relates to overseas conflicts, including Pulitzer Prize winner Chris Hedges and an Icelandic spokeswoman for the Wikileaks website, said that the law could subject them to being locked up for exercising constitutionally protected rights. They also said the threat of enforcement violated their right to free speech.

In September 2012, U.S. District Judge Katherine Forrest of New York issued a permanent injunction preventing the United States from invoking the part of the law authorizing indefinite detentions.

 

The appeals court said the challengers had no standing because they could not show the provision has any bearing on the government's authority to detain U.S. citizens.

The court said the plaintiffs who were not U.S. citizens lacked standing to sue because they did not show "a sufficient threat that the government will detain them" under the provision.”

(emphasis added)

Consider what this actually means. The government apparently 'promised' that it won't detain journalists under the provision. But that 'promise' is just words. What happens if a journalist does in fact end up detained?

One could easily imagine a hypothetical case in which a journalist in making contact with dubious sources is erroneously (or even deliberately) suspected of having 'aided' terrorists. He is then detained under the NDAA provision.

This would mean two things: for one thing, the person concerned would definitely have acquired 'standing' to sue the government over the detention rule. Secondly, no use could possibly be made of this 'standing', because according to the terms of NDAA detention, access to the courts would be denied to the detainee!

As Jason Ditz remarks:

“Courts initially banned such detentions, over intense objection from President Obama, who argued that prohibiting the detentions would be an unconstitutional restriction of presidential power.

 

The Appeals Court eventually restored the detention power, however, insisting that Hedges et al didn’t have standing to contest their future detention because they couldn’t prove that the president might decide to detain them at some point in the future.

 

The standing argument effectively makes it impossible to challenge the NDAA statute, as it precludes challenges before the detention takes place, and once a person has been disappeared into military custody under the NDAA, the law explicitly denies them any access to the courts.”

(emphasis added)

This is neat. Heads I win, tails you lose. How can one still speak of a nation of laws under these circumstances? It is in fact not quite clear why terrorism suspects allegedly need to be 'disappeared' and cannot be tried in court. Are we to assume that the president, or whoever orders such detentions, is an infallible being?

As Murray Rothbard noted in 'Anatomy of the State', the idea that the separation of powers protects against the government eventually arrogating powers to itself it was never supposed to have according to the constitution is misguided. One cannot reasonably expect the State to 'control' or 'limit' itself. As Rothbard writes:

“Certainly the most ambitious attempt to impose limits on the State has been the Bill of Rights and other restrictive parts of the American Constitution, in which written limits on government became the fundamental law to be interpreted by a judiciary supposedly independent of the other branches of government.

 

All Americans are familiar with the process by which the construction of limits in the Constitution has been inexorably broadened over the last century. But few have been as keen as Professor Charles Black to see that the State has, in the process, largely transformed judicial review itself from a limiting device to yet another instrument for furnishing ideological legitimacy to the government’s actions. For if a judicial decree of “unconstitutional” is a mighty check to government power, an implicit or explicit verdict of “constitutional” is a mighty weapon for fostering public acceptance of ever-greater government power.”

 

[…]

 

For while the seeming independence of the federal judiciary has played a vital part in making its actions virtual Holy Writ for the bulk of the people, it is also and ever true that the judiciary is part and parcel of the government apparatus and appointed by the executive and legislative branches.

 

Black admits that this means that the State has set itself up as a judge in its own cause, thus violating a basic juridical principle for aiming at just decisions.

(emphasis added)

'Emergencies' always pave the way for an expansion of government power, which is rarely taken back again afterward (the 'ratchet effect', which is especially pronounced in times of war).

As we always point out in similar contexts, it is irrelevant how likely or unlikely it is whether today's government abuses these provisions. Once laws are in place that can be potentially abused, then all that is required is that people are swept into power who have no compunction about doing just that.

Hitler comparisons may be tiresome, but he remains a pertinent example: after gaining power in a democratic election, he found that a great many 'emergency laws' had been put in place by his moderate predecessors that he only needed to enforce. Consider also what he said to the Reichstag (parliament) when he introduced the 'Enabling Act' (a much broader, truly dictatorial law; however, similar to the infinite detention provision of the NDAA, it inter alia allowed for the suspension of habeas corpus):

“The government will make use of these powers only insofar as they are essential for carrying out vitally necessary measures.  […]

The number of cases in which an internal necessity exists for having recourse to such a law is in itself a limited one.”

In other words, there is nothing to fear! We are a civilized, democratic people and government, nothing untoward can possibly happen. We only have to deal forcefully with the current emergency. It turned out that the 'internal necessities' soon proliferated.

 

Conclusion:

Court challenges to constitutionally dubious laws that have been introduced since the WTC attack, as well as to the highly questionable activities of the national security apparatus, have been regularly stopped in their tracks with the argument that the plaintiffs 'lacked standing'. In the case of the indefinite detention provision this argument is especially bizarre, since all those who will acquire 'standing' in the future will no longer have access to the courts – the very thing the plaintiffs tried to challenge. This seems hardly compatible with how a nation of laws is supposed to operate, but as Rothbard pointed out, the State will always find a way to transcend its limits.

 

cols_ventura

 

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Sun, 05/04/2014 - 23:10 | 4727323 Colonel Klink
Colonel Klink's picture

The Supreme court is supreme in name only.  They represent the state and no longer uphold their oath to the Constitution and the founding documents of this nation.  They are now "activist" judges working on the States behalf.  As evidenced by their half-cocked rulings where virtually every judge should be in agreement that the State has been overstepping their authority from the Executive branch, spying on its citizens, failure to uphold the laws, ruling that corporations are "people", and a whole host of other issues.

Sun, 05/04/2014 - 23:26 | 4727356 y3maxx
y3maxx's picture

USSA! USSA! USSA!

We're #1, We're #1, We're #1

If You aren't with us, You're against us.

Sun, 05/04/2014 - 23:36 | 4727368 wee-weed up
wee-weed up's picture

 

 

Detaining people on the President's say so...

Oh, how utterly tame...

How about killing people by drone on the President's say so!

Coming soon to an American city near you...

Obozo's got you in his cross-hairs!

You may not just be "racist" for criticizing this incompetent President...

You may end up DEAD!

Sun, 05/04/2014 - 23:43 | 4727390 i-dog
i-dog's picture

And voting for a new president won't even slow down the expansion of state power.

Secede now ... or go down with the ship!

Sun, 05/04/2014 - 23:47 | 4727399 Anusocracy
Anusocracy's picture

Human evolution is not a one way street.

The American voter has proven that.

Mon, 05/05/2014 - 00:06 | 4727429 BellyBrain
BellyBrain's picture

What we need is true, rational, anarchy. 

However, we must bear in mind that the state and "the corporations" are two arms of one giant beast, and that Anarcho-Capitalism Isn't Anarchism

https://www.youtube.com/watch?v=ObTwbE9Dwm4

Mon, 05/05/2014 - 01:47 | 4727524 Four chan
Four chan's picture

when the constitution is turned on its head, the republic thats being constrained by it, can not be contained.

conservatives and republicans are that in phony name only, and are not for a republic, nor the conservation of its constitution.

 

the republic has been lost, and what comes next will be a version of every other disaster befalling societies.

Mon, 05/05/2014 - 01:59 | 4727534 Oh regional Indian
Oh regional Indian's picture

The con-con is on, I hear.

Been reading about it for a long time.

When it happens, it's a binary world, hello freedom or hell oh tyranny, constitutionalized.

http://www.politicalears.com/blog/something-huge-just-happened-and-the-m...

ori

 

Mon, 05/05/2014 - 02:15 | 4727549 EscapingProgress
EscapingProgress's picture

THE STATE HAS NO LIMITS

Mon, 05/05/2014 - 09:07 | 4727972 kill switch
kill switch's picture

By the NSA!!!

Mon, 05/05/2014 - 06:36 | 4727668 doctor10
doctor10's picture

Oh shoot. All this will do is finish off the 1st and the 2nd Amendments.

The current Constitution would do fine with term limits on federal judges and Congress.

The American "security" state-all the triple alphabet agencies-are accustomed to turning entire governments upside down in a matter of days to weeks. .  A Con-Conwill be no challenge at all-unless carrier pidgeons are used to organize and communicate!!

 

Mon, 05/05/2014 - 00:06 | 4727427 chumbawamba
chumbawamba's picture

We the People created

==> State governments created

==> Federal government created

==> Federal "citizens of the United States".

The created cannot be greater than the creator.  Follow along now:

We the People applied for and became

==> citizens of the United States subjecting to

==> Federal government.

The way out of this is to expatriate from your Federal citizenship.  You are a citizen of the state in which you are born.  The state citizens are the sovereigns.  A "citizen of the United States" has the same status as an emancipated slave.

I am Chumbawamba.

Mon, 05/05/2014 - 00:26 | 4727438 i-dog
i-dog's picture

I agree ... and I've been an an-cap for most of my life (never voted; float between countries; fully utilize tax sheltering; etc). Here's a repeat of my earlier post in another thread:

By now, even Blind Freddie knows what the problem is: Rampant Government™. We need solutions.

 

But since there are a thousand proposed solutions, the only logical solution is to allow those thousand solutions to bloom ... in a free society within which each community pursues its own solution AND respects the right of neighbouring communities to pursue their own solutions.

 

If your own community doesn't largely agree with your own preferred solution, then move to one that does.

 

There is no "global" solution to this [now] global problem.

 

Secede now ... or go down with the ship!

 

 

* Rampant (adjective): (especially of something unwelcome) flourishing or spreading unchecked.

Mon, 05/05/2014 - 00:50 | 4727475 A Nanny Moose
A Nanny Moose's picture

Sounds reasonable, I would add..."so long as there is no initiation of force.

Mon, 05/05/2014 - 08:23 | 4727832 g'kar
g'kar's picture

Rampant (adjective): (especially of something unwelcome) flourishing or spreading unchecked.

 

Similar to a malignant tumor.

Mon, 05/05/2014 - 01:51 | 4727529 Four chan
Four chan's picture

we are on tha same page.

Mon, 05/05/2014 - 07:47 | 4727744 CH1
CH1's picture

The way out of this is to expatriate from your Federal citizenship.

The way out is to stop treating ANY gang of rulers as if they have moral legitimacy.

Mon, 05/05/2014 - 07:50 | 4727761 sleigher
sleigher's picture

I thought it all spawns from registering to vote.  When you register to vote you sign up for all the federal crap and agree to be a 14th amendment citizen.

All of this is by our own consent.  Remove consent. 

Mon, 05/05/2014 - 08:38 | 4727845 Sean7k
Sean7k's picture

www.state-citizen.org

Read up on invisible contracts. You have signed on to all sorts of contracts without ever knowing it- all that require a quid pro quo in the form of State liability.

Mon, 05/05/2014 - 08:16 | 4727794 scrappy
scrappy's picture

Establish Common Law Grand Juries - Nationwide

Let the people decide.

Weekly Monday Call - 9 PM EST

http://www.nationallibertyalliance.org/blog-talk-radio-247-text-chat

No Authority in Law

http://www.nationallibertyalliance.org/sites/default/files/No%20legal%20...

FRAUD UPON THE COURT

http://www.nationallibertyalliance.org/sites/default/files/14-04-23%20Fr...

 

Mon, 05/05/2014 - 08:37 | 4727872 Jumbotron
Jumbotron's picture

"And voting for a new president won't even slow down the expansion of state power.

Secede now ... or go down with the ship!"

 

We tried that already.  It was called the Civil War.  And the state won.

We also tried it from a banking perspective.  Jefferson killed off the First Bank of the United States.  It was ressurected only to be killed by Andrew Jackson.  Then the banksters got the Federal Reserve.  The state (from the crony capitalist side of the state) won.

Face it.  You were born on Prison Planet.  There is no escape.  No where to run or hide.  Deal with it.

The only thing that you can do regarding seceding is seceding your mind from the state.  They can't own that....ever.  When you're mind is free then you are free.....no matter where you are.....no matter if your body is in bondage.

Mon, 05/05/2014 - 08:39 | 4727878 Jumbotron
Jumbotron's picture

"And voting for a new president won't even slow down the expansion of state power.

Secede now ... or go down with the ship!"

 

We tried that already.  It was called the Civil War.  And the state won.

We also tried it from a banking perspective.  Jefferson killed off the First Bank of the United States.  It was ressurected only to be killed by Andrew Jackson.  Then the banksters got the Federal Reserve.  The state (from the crony capitalist side of the state) won.

Face it.  You were born on Prison Planet.  There is no escape.  No where to run or hide.  Deal with it.

The only thing that you can do regarding seceding is seceding your mind from the state.  They can't own that....ever.  When you're mind is free then you are free.....no matter where you are.....no matter if your body is in bondage.

Sun, 05/04/2014 - 23:30 | 4727370 DoChenRollingBearing
DoChenRollingBearing's picture

Yessir, Colonel it is sickening.  The Deep State meme seems to actually describe our situation well.  

An overly strong President is clearly a danger.  Funny how The Left only saw the danger from W, until it was too late for their bleetings to stop O.

It could get very ugly.  Prepare...

Sun, 05/04/2014 - 23:32 | 4727375 Ignatius
Ignatius's picture

" Funny how The Left only saw the danger from W..."

Not too funny.

Sun, 05/04/2014 - 23:46 | 4727398 DoChenRollingBearing
DoChenRollingBearing's picture

To be fair, I did not see the danger in W until it was too late.

Sun, 05/04/2014 - 23:53 | 4727411 LetThemEatRand
LetThemEatRand's picture

W and O are the brilliance of the system.

Sun, 05/04/2014 - 23:59 | 4727417 james.connolly
james.connolly's picture

Brilliant to make lady-men that like other men to corn-hole them? To make them leaders of the so called 'most powerful nation' on earth?

I can think of no reason they do this, other than to 'project' this KINDER&GENTLER theme, ... but the truth is WOLF has always been in a SHEEPS CLOTHING.

I bet Dick Cheney get's the best laughs, because he's the only one that only thinks about the "Secret Government", and doesn't even give the "Circus Government" a single thought.

>>>

Perhaps is modern USA is not unlike ancient Rome where guys like Caligula were made 'leaders' for show,...

Mon, 05/05/2014 - 00:03 | 4727424 LetThemEatRand
LetThemEatRand's picture

Divide and conquer.

Sun, 05/04/2014 - 23:54 | 4727415 james.connolly
james.connolly's picture

Surely the same W that run's SERCO, and INMARSAT; It never occured to you that W, whose grandpa brought HITLER to power, it never occured he was a fucking FASCIST ASSHOLE FROM HELL?

The lord does work in strange ways.

 

Sun, 05/04/2014 - 23:56 | 4727416 LetThemEatRand
LetThemEatRand's picture

W and O are the brilliance of the system.

Mon, 05/05/2014 - 05:51 | 4727640 Offthebeach
Offthebeach's picture

Hitler was first financed by German Army Intelligence. Later also by domestic industry.

In the 20's German industry and state and municipal bonds were sold in New York and London.

Hitler ceased paying even interest on these notes and self financed by printing MEFO and other state instraments. Bush, Harriman were long gone by the time Hitler came to power. Saying Bush/Harriman Brown financed Hitler is like saying Edison ran death camps because they had functional electric lighting systems.

If anyone was responsible for Hitler it was Wilson and his not delivering/stopping total war into the German hartland and destroying the German elite and educating by experience the German citizen. A education which would have to be retaken 20 years later.

Sun, 05/04/2014 - 23:48 | 4727401 nmewn
nmewn's picture

Yeah, Mrs.N warned me about that.

She's a pretty smart cookie.

Sun, 05/04/2014 - 23:41 | 4727371 Ignatius
Ignatius's picture

So you're sayin' there's a downside to wiretapping everybody (read: blackmail), including Supreme Court justices, as whistlblower Russ Tice pointed out?

Mon, 05/05/2014 - 06:28 | 4727661 doctor10
doctor10's picture

The NSA assures "good"  judges. Or so I hear.

Mon, 05/05/2014 - 06:47 | 4727681 Cloud9.5
Cloud9.5's picture

The history of the Court from Marbury forward has been a history of supporting the concentration of power in the federal government.  The court has had no problem in weakening the power of the states in the guise of championing civil rights.  But, when it comes to limiting the authority of the federal government it has and always will be remise.

 

Never forget that this same court deemed slavery to be legal.  The solution is nullification on the part of the states.  Illegal and odious laws that breach the social contract must be resisted on the state level.  The central government has been captured by the multinational oligarchs.

Mon, 05/05/2014 - 08:31 | 4727856 Sean7k
Sean7k's picture

+1000

People need to understand it all started with judicial review. The court is a tool to legitimize the tyranny of the State.

Mon, 05/05/2014 - 09:16 | 4727866 scrappy
scrappy's picture

The group "PANDA" has had some modest success on NDAA at the local level.

https://tinyletter.com/pandaunite

http://pandaunite.org/

Mon, 05/05/2014 - 08:45 | 4727904 Reaper
Reaper's picture

When you put black robes on any venal lawyer, you still have a venal lawyer, empowered as a judge.

Sun, 05/04/2014 - 23:16 | 4727337 TammanyBrawl
TammanyBrawl's picture

This slippery slope is looking more like a cliff.

Sun, 05/04/2014 - 23:16 | 4727340 CCanuck
CCanuck's picture

  WTF    - "Courts initially banned such detentions, over intense objection from President Obama, who argued that prohibiting the detentions would be an unconstitutional restriction of presidential power"

 

Fuck'n Cocksuck'n Hypocrite Obama, nuff said!

Sun, 05/04/2014 - 23:18 | 4727341 maskone909
maskone909's picture

Michigan is the 34th state to join in for a constitutional convention. Therin lies the power to change everything.

Sun, 05/04/2014 - 23:25 | 4727351 CCanuck
CCanuck's picture

Who's power to change everything?

It will be 2000 pages, and they will pass it , to see whats in it!

 

 

Sun, 05/04/2014 - 23:28 | 4727365 Seize Mars
Seize Mars's picture

maskone

It should be very obvious that there is not really anything wrong with the constitution as is.

The problem is that we "the people" obviously have no way to enforce it.

Go ahead, tell the IRS that their existence is unconstitutional. They'll beat your ass, take your stuff and throw you in jail.

Mon, 05/05/2014 - 05:05 | 4727610 Poor Grogman
Poor Grogman's picture

By making only gold and silver money the constitution contained the means for the people to restrain the government.

The government could not act without directly taking money from the people, which would be a self limiting brake.

With the creation of the federal reserve and the confiscation of gold, all restraints on the government were destroyed.

The growth of government itself was now unrestrained, in fact it was necessary as increasing government deficits are REQUIRED in order to pump legal tender credit money into the economic merry go round.

Any government operating under an "independent" central bank fiat money system, will gradually come to utterly dominate society, and the economy.

There is no way to escape this insidious tendency, except to find another medium of exchange. Which your government will make sure costs you dearly, in terms of your freedom (both personal and economic).

Eventually the state must attempt its final triumph, by finding a way to make it impossible for you to function without it.

This is what must be resisted with every ounce of strength, and ingenuity you can muster.

EDIT
This makes me wonder.

Was the expansion of credit in the " roaring twenties" as well as the subsequent credit crunch of the 30s engineered by the fed deliberatly in the knowledge that it would lead to gold confiscation, and further power transfer to the state??

Wouldn't surprise me at all!

Mon, 05/05/2014 - 07:00 | 4727690 Ghordius
Ghordius's picture

"in fact it was necessary as increasing government deficits are REQUIRED in order to pump legal tender credit money into the economic merry go round."

"Was the expansion of credit in the " roaring twenties" as well as the subsequent credit crunch of the 30s engineered by the fed deliberatly in the knowledge that it would lead to gold confiscation, and further power transfer to the state?"

a mistake in the reasons

you will always find people that are for an expansion of credit, particularly public credit as the modern systems are based on

it's like free booze. and moar booze is better than booze. so there are always theories why a bit moar is better than less, even including the reasoning that "it has to be done in order to provide for a global reserve currency", aka Triffin Dilemma

the point is... you can't stay drunk forever. and what you call credit crunch is just... a hangover. which makes everybody very grumpy (and some poorer)

whenever you keep the credit/currency levels steady or even decrease them... you notice who was swimming naked, aka malinvestment

(as far as I know this is straight from Ludwig von Mises, though the theory of malinvestment should imho be attributed to his predecessor and the Marginal Revolution in economics)

Mon, 05/05/2014 - 07:07 | 4727695 Ghordius
Ghordius's picture

"As Murray Rothbard noted in 'Anatomy of the State', the idea that the separation of powers protects against the government eventually arrogating powers to itself it was never supposed to have according to the constitution is misguided. One cannot reasonably expect the State to 'control' or 'limit' itself."

interestingly, separation of powers is way less pronounced in europe, particularly on the continent

at the end, it's always the citizen that controls or limits government. you can't expect a constitutional design feature to do it for you, and most importantly you can't expect to do it alone

Mon, 05/05/2014 - 08:36 | 4727870 Sean7k
Sean7k's picture

This began in 1791 with the first bank of the US. See, "Pieces of Eight". The Supremes have generations of terrible arguments enforcing the use of bills of credit which were "not" bills of credit. Hat tip to Ghordius, we may not agree often, but trusting in the Constitution instead of the people is right on the money.

Mon, 05/05/2014 - 07:31 | 4727722 sleigher
sleigher's picture

We do have a way to enforce it.  In fact it was Justice Scalia who told a group of university students not that long ago to revolt.  I guess that spirit in American has been watered down to the point of non-existence. 

Sun, 05/04/2014 - 23:53 | 4727407 i-dog
i-dog's picture

The mind boggles at what pre-planned provisions the political establishment would put forward [on behalf of their handlers] at a new constitutional convention ... which the baying mob would then cheeringly accept!

They might even decide that the new constitution is to contain only one clause: "Shut yo' mouf and eat yo' peas!"

Sun, 05/04/2014 - 23:31 | 4727357 Seize Mars
Seize Mars's picture

The Supreme Court, between 1935 and 1995, found exactly ZERO Federal laws to be unconstitutional. Zero.

Furthermore, they granted themselves the power of "judicial review," that is the ability to pass judgement on the constitutionality of laws, because of the famous court case "Marbury V. Madison." Yes, that's correct, one of the three branches of the Federal government granted itself more power than was granted to it by the constitution.

The way it was supposed to work, is that unconstitutional laws were to be nullified by the States. This was discussed by the founders and written about by Jefferson.

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