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It is free will that government crushes when it assaults property rights. 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. 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. 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. Property results from the application of labor to natural resources. 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.

The “might affect” standard - written, interpreted and enforced by bureaucrats - is really an assault on the values underlying private property ownership. 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. Of course, there is no authority in the Constitution for such regulations. 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.Īmong the regulations the EPA promulgated was a prohibition on the building of any structures that “might affect” mud puddles. 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.Īfter 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. Administrative agency heads are appointed by the president and confirmed by the Senate. And the IRS’ interpretations of its own regulations run 70,000 pages.Īccording to the late Justice Antonin Scalia, this is an unconstitutional delegation of Congress’ legislative powers to governmental entities not answerable to the voters. But the IRS’ own regulations - written by IRS bureaucrats, not by Congress - run 9,000 pages. Tax Code, enacted by Congress, runs 2,600 pages. It writes rules, enforces them and interprets them. This last insidious structure is not in any branch of constitutional government. senators, the Federal Reserve, rampant racism and his government by experts, known today as the administrative state. His governmental sins were many: World War I, the Espionage Act, the federal income tax, the popular election of U.S. Without the threat of nullification and secession, there is no effective restraint on the feds. The forced retention of people or geographical units under the government’s monopolistic jurisdiction is totalitarian. This applies to people as well as to political subdivisions. One is not truly free if one cannot leave the government. 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. He was also referring to the natural right that individuals and political subdivisions have to leave the government, called secession. 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. 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. 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.

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