OPINION:
Last week, the Supreme Court, in a surprising display of unanimity, upheld the traditional values underlying property rights when it prevented the Environmental Protection Agency from regulating mud puddles.
Here is the backstory.
I have often thought that after Abraham Lincoln, Woodrow Wilson was our worst president. By worst is meant least faithful to the Constitution and most destructive of personal liberty.
With the exception of Lincoln’s dictatorship — during which the federal government used violence to crush the states’ right to secede from a compact they had voluntarily joined, and instead brought about the systematic destruction of 750,000 people — America from its founding to the early part of the 20th century more or less enjoyed the James Madison model of federal government.
Under this model, the federal government could only legislate, spend and tax in the 16 discrete areas of governance that the Constitution delegated to it. All other areas of human behavior were left to individual choice or governance by the states.
From and after Wilson’s presidency, the Madisonian model was replaced by the Wilsonian one. Under this model, the feds could legislate, spend and tax in any area of human behavior for which there was a national political will, except for those areas that are expressly prohibited to them by the Constitution.
Gradually, the courts permitted Congress to basically write any law, regulate any behavior, spend any money, tax any event and intrude on any relationship so long as it did not offend an express constitutional prohibition.
The Constitution itself — which Madison designed both to establish the federal government and to limit it — has been a dismal failure as an instrument of limitation. Madison himself wrote that only a structure external to the Constitution could be relied upon to keep the federal government in the confines of the Constitution.
He was referring to the power of the states to nullify acts of the federal government that the states determined were outside its constitutional authority. He was also referring to the natural right that individuals and political subdivisions have to leave the government, called secession. Just as the 13 colonies seceded from Britain, Madison argued, individuals can reject the government, smaller subdivisions can leave larger ones, and states can leave the feds.
One is not truly free if one cannot leave the government. This applies to people as well as to political subdivisions. The forced retention of people or geographical units under the government’s monopolistic jurisdiction is totalitarian.
Without the threat of nullification and secession, there is no effective restraint on the feds.
Now back to Wilson. His governmental sins were many: World War I, the Espionage Act, the federal income tax, the popular election of U.S. senators, the Federal Reserve, rampant racism and his government by experts, known today as the administrative state.
This last insidious structure is not in any branch of constitutional government. It writes rules, enforces them and interprets them. As an example, the U.S. Tax Code, enacted by Congress, runs 2,600 pages. It is an indecipherable monstrosity. But the IRS’ own regulations — written by IRS bureaucrats, not by Congress — run 9,000 pages. And the IRS’ interpretations of its own regulations run 70,000 pages.
This is Wilson’s government by experts.
According to the late Justice Antonin Scalia, this is an unconstitutional delegation of Congress’ legislative powers to governmental entities not answerable to the voters. Administrative agency heads are appointed by the president and confirmed by the Senate. But the people who write, interpret and enforce the rules are permanent bureaucrats who do not change, no matter who is in the White House.
After Congress established the EPA, it authorized it to regulate the “waters of the United States.” Based on that five-word phrase, the EPA determined that it had the authority to regulate all bodies of water anywhere in the U.S. This theory was based on expert opinions that all bodies of water are eventually and ultimately connected to one another below the Earth’s surface, and thus, the EPA can regulate all waters — even wetlands, even mud puddles.
Among the regulations the EPA promulgated was a prohibition on the building of any structures that “might affect” mud puddles. Of course, there is no authority in the Constitution for such regulations. Many people who either did not challenge similar restrictions on the use of their own land or who did so and lost ended up with property on which they pay real estate taxes but for which they have no economically viable use.
The “might affect” standard — written, interpreted and enforced by bureaucrats — is really an assault on the values underlying private property ownership. Yet by defining “waters of the United States” as only those that have a continuous surface connection to established waters unambiguously owned by the United States, the court not only applied the common understanding of English words but also manifested the Madisonian respect for the primacy of the wishes of property owners over those of the government.
Property results from the application of labor to natural resources. Property is a component of freedom. The essence of property is the right of the owner to use, sell, lease or mortgage it, and to exclude from it whomever the owner wishes — even the government.
When the government enters property without the owner’s consent, or when the government bars the owner from using his property as he wishes, this is more constitutionally offensive than a taking for which the Constitution requires the government to pay fair value. Rather, it is an assault on a basic moral principle of human interaction — namely, that the only moral commercial transactions are those that are truly voluntary.
It is free will that government crushes when it assaults property rights. Every once in a while, the courts recognize that.
• Andrew P. Napolitano is a former professor of law and judge of the Superior Court of New Jersey who has published nine books on the U.S. Constitution.
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