Political Legitimacy, Empire, and the Empty Purse
I recently wrote an article about the successful stonewalling by the Internal Revenue Service of congressional inquiries into the IRS's handling of applications for tax-exempt status submitted by conservative organizations. The IRS has proven itself to be utterly immune to Congress. It has told Congress: "Go fish."
My point was simple: the only real clout that Congress has when dealing with an executive agency is to cut its budget in the following year. Congress never does this, because Congress always expands the power of the federal government. This is a way of life for Congress. So, because it has abandoned the one effective negative sanction that it possesses over federal executive agencies, Congress is impotent when dealing with executive agencies.
I then went on to point out that the United States Constitution grants Congress full authority to remove almost any area of life from the jurisdiction of the United States Supreme Court and all federal courts.
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
This is never taught in the state's schools. It is never mentioned in public discourse. The etiquette of public debate on the issue of federal sovereignty, especially congressional sovereignty, has eliminated this topic from consideration. If the voters ever really understood that they have the power, through Congress, of getting the Supreme Court out of their lives on issues of real interest, this really would constitute a political revolution. The Framers of the Constitution never wanted the Supreme Court to have final jurisdiction. But this fact has been dropped down the public school memory hole for well over a century.
When Ron Paul used to bring up the issue of the constitutionality, or lack thereof, of some bill that the House of Representatives was considering, the standard answer of his colleagues was this: "We pass the bills, and the Supreme Court decides whether they are constitutional." Congress had abandoned its own legitimacy, which the Constitution grants to Congress.
Today, the suggestion that Congress has the authority to remove virtually anything from consideration by the Supreme Court would be regarded as totally illegitimate. It doesn't matter what the Constitution says; the talking heads of the media do not like Congress. They much prefer the court system, which is almost immune from the wishes of the electorate. So, they talk as though the court system has superior sovereignty to that possessed by Congress. This is clearly an unconstitutional position, yet it is almost universally accepted by all members of the public. Conservatives never raise the issue. The pro-life movement never raises the issue. It is considered out of bounds. More than this, it is virtually forgotten. It is not simply that this position is considered a fringe position; it is not recognized as a position.
LEGITIMACY
This raises the issue, which is fundamental, of political legitimacy. There is no question that the United States Constitution grants control over the court system to Congress. The President of the United States has nothing to say about this, constitutionally speaking. Neither does the Supreme Court. The public does not understand this. So, the public imputes a degree of final sovereignty to five members of the Supreme Court that is not derived from the United States Constitution, and which is in flagrant opposition to the common law system of law which governed Anglo-American law up until John Marshall in 1803: Marbury v. Madison.
The doctrine of judicial review was never considered at the Constitutional convention. The United States Supreme Court was considered the third leg of the federal stool, and the weakest of all the legs. The doctrine of judicial review was invented by Chief Justice Marshall, who was by far the most important advocate of federal centralization of power in the history of American political leadership. Franklin Roosevelt was a piker on this issue, when compared to Marshall. Marshall asserted the final authority of the Supreme Court over the legal and political system of the United States government, and there was no opposition to this. He got away with it. It was the greatest political heist in the history of the United States after 1788. It was strictly political. He was a Federalist. He was the last of the Federalists. In the name of federal judicial sovereignty, he arrogated to the Court massive political power. Step-by-step, case-by-case, he centralized power until his death in 1835.
This transfer of political sovereignty to the Supreme Court could have been challenged. It wasn't. It was not inherent in the Constitution. But Marshall's decision in Marbury v. Madison gained instant legitimacy, because it favored the short-term political interests of the politically dominant Jeffersonians. They let Marshall get away with this, and in only one case did the Supreme Court face a successful challenge to this illegitimate heist of legitimacy. That was in 1869, during Reconstruction: Ex Parte McCardle. That case has gone down the memory hole.
Legitimacy is crucial. Let me give you another example. In the detailed study of the 16th amendment, Bill Benson and Red Beckman discovered that, from a technical standpoint, the income tax amendment was never ratified. It was not passed according to constitutional rules. They provided the evidence for this three decades ago in The Law That Never Was. But the Attorney General of the United States wanted the income tax, as did the Wilson administration, and so he simply announced that it had been passed. It thereby gained instant legitimacy. From that point on, the income tax has been sacrosanct in American history. Any tax protester who attempts to use the historical evidence that Benson and Beckman assembled will not be allowed by the court to present it. It is not that the historical evidence has been faked by the two authors. On the contrary, the historical evidence was faked by the Attorney General of the United States. The point is, by faking the evidence, the Attorney General established the legitimacy of the federal income tax.
In the great issues of our day, in which the preservation of liberty is concerned, the question of legitimacy is far more important than the question of legal technicalities. The tax protesters have never figured this out. They always think that, by appealing to some arcane interpretation of some arcane tax law in American history, they can escape the judgment of the IRS, the tax courts, and a jury of their peers. They live in a fantasy world in which legitimacy is somehow established by an appeal to laws. Legitimacy is far more complex than this.
Legitimacy is at the heart of every political system and every institutional system. If you want to bring down a rival system, undermine its legitimacy in the minds of the population in general, and especially undermine it in the minds of the defenders of the particular institutional arrangement. If you can get people convinced that a particular law, policy, or tradition is illegitimate, you have basically won the battle.
At some point, every national political system collapses. It is replaced. Every political tradition gets tossed onto the ashcan of history at some point. During the period in which a political tradition is dominant, it seems to be something approaching immortal. Yet all of them are mortal.
THE COURSE OF EMPIRE
This mortality is sped up by empire. Empires always collapse or get abandoned by the nations that created them. Empires always bankrupt themselves. Empires always seem to have total legitimacy in the minds of the voters, and then, in a very brief period of time, they go belly-up. The guaranteed way of speeding up the disintegration of a political tradition is to attach this tradition to a system of empire. Empires always bankrupt the nations that indulge in the preposterous assumption that a particular nation can police the world to its own benefit by means of military power.
The British Empire went out of business in 1947. It ran out of money. The sun, which never set on the British Empire, started setting daily. The American Empire replaced it. The institutional mark of this transfer was NATO (1949). NATO was the first defensive treaty that the United States government entered into since 1800, when the treaty of 1778 with France was canceled. Similarly, the Soviet Union ran out of money in 1991. It shut down operations. The inevitable march of Marx's laws of historical development suddenly got off the bus to Communist bliss. When empires go bankrupt, they retroactively call into question the symbols of legitimacy that had been invoked during the period of empire. It is not easy to abandon these principles if you are a politician who has staked his career on their legitimacy. But, when the purse is empty, the empire fades away.
There are no exceptions.
CONCLUSION
We must spend time undermining those areas of political legitimacy in the United States that constitute a threat to liberty. This may seem like a hopeless endeavor, but it is an imperative endeavor. It is a thankless task during the era of legitimacy. In retrospect, it may also be thankless. This depends on what new system replaces it.
We should not expect to beat something with nothing. We have to find other arrangements, other institutions, other traditions by which a new system of legitimacy can be substituted after the American Empire goes belly-up.
I recommend this slogan: Replacement, Not Capture. Example: don't try to capture the public schools. Replace them.
The American Empire rests on the Federal Reserve System. It also rests domestically on the Keynesian worldview, which justifies federal deficits and central banking. Both of these economic pillars of the empire are living on borrowed time and borrowed money.
Our goal should not be to capture the Federal Reserve System. Our goal should be the repeal of the Federal Reserve Act. It should be replaced by free banking. Bank runs should be legalized. It never hurts to shut down a cartel. Something (the banking cartel) should be replaced by something better (the right of contract).
You get the idea. Replacement, not capture.
Be patient. The empire is going bankrupt. Work on some replacement. Get experience. Set up websites. Write manuals. Post YouTube videos. Bide your time. Keep busy.