ILLEGITIMACY BECOMES PRECEDENT

What is perhaps the most discouraging aspect of my constant search for solutions to the problems created by the environmental and animal rights campaigns of recent years hit me between the eyes twice in the past two months. Namely it is the resignation expressed by our leading citizens that the laws at the root of all the problems we face were and are illegal but there is no longer any hope of rescinding them.

This came to my attention at a recent seminar at a Washington think tank. The staff of that think tank has long been a responsible critic of past, current, and future abuses generated by the Endangered Species Act (ESA). The speaker at the seminar was a responsible western Governor whose record for action and common sense, especially in environmental matters, is as good as any. The subject of his presentation was making the ESA work. Essentially, he and the sponsoring staff said the ESA is here to stay and our only option is to make it work. When I questioned that assumption, I received a non-answer.

More recently, I attended a presentation by a noted Washington lobbyist regarding the future for pet owners. His thesis was the illegal beginning of the Animal Welfare Act (AWA), how it has incrementally expanded to include all manner of animal use, how it has usurped all manner of State jurisdictions, and how we must accept it’s presence and work with it. When I asked him about this after the presentation, he and another lawyer whom I respect told me that the law should have been opposed when passed. Then they added that it now too late to attack it’s legality, subsequent amendments and the broad interpretation of The Commerce Clause make any revocation impossible.

The Animal Welfare Act began in 1966 as the Lab Animal Protection Act. Federal funding in a few labs was the wedge used by Federal legislators to proclaim Federal jurisdiction over laboratory activities involving ALL ANIMALS except rats, mice, and birds. When the States didn’t object, the battle was lost. Amendments and regulations expanded over the next 30 years to make the Federal government the primary authority (at the expense of States who were given such authority in the Constitution) over zoos, rodeos, aquariums, animal transportation, animal auctions, pet breeders, and animals bred for security and hunting. Other activities and species were and are gradually going under Federal authority. Today agricultural animals are slated for the same incorporation as are the originally exempted rats and mice (record-keeping requirements will make them almost impossible to use for experiments.) Similarly Federal politicians and bureaucrats are proposing regulating when and how often anyone breeds their dogs and even how puppies are to be raised. This has spearheaded and is implementing the animal rights agenda of reducing and then eliminating all animal use and the concept of animals as personal and private property.

The Endangered species Act was passed in the early 1970’s to “implement” the United Nations Convention on International Trade in Endangered Species (CITES). Since CITES is not a treaty, it’s implementation by the US should have been in accord with our Constitution which placed the jurisdiction over plants and animals under State governments. Instead, the Federal bureaucrats and politicians proceeded as though CITES was a treaty and claimed jurisdiction over any plant or animal they wanted. The courts agreed (as they always do of late for “good” intentioned purposes. When the States didn’t fight this, the battle was lost. The rest is history and the very thing our Founding Fathers tried to guard against. Soon the Federal government named subspecies, races, populations, distinct populations, and distinct population segments to come under their authority. Then they found they could take private property without compensation. Then they found that even state bureaucrats (like academics and national conservation organizations) would actually work with them for grants and prestige. Then they found that they could even force wolves on states, ranchers, hunters, and rural residents with impunity and even claim no responsibility for what they (the wolves and the agencies) wrought. Today the bonds between Federal agencies and radical animal rights and environmental organizations are strong as they work to clear swaths of the west, close down public lands, stop animal uses from hunting and trapping to rural pet ownership, and hobble the economic life of the nation. They are stopping energy development, logging, ranching, water management, road construction, and a whole host of things necessary for a vibrant society.

When the lawyer mentioned the broad interpretation of The Commerce Clause (Article I, Section 8 of the Constitution) he was putting the above two illegitimate seizures of vast state powers in historical context. For the past 80 years the US Congress and most Courts have interpreted the words “Congress shall have the Power…To regulate Commerce with foreign Nations, and among the several States, and with Indian Tribes.” Very broadly. That means that while the Founding Fathers clearly had in mind Congress preventing tariffs and trade wars between the States (i.e. Connecticut banning shoes unless made in Connecticut) today the courts say EVERYTHING is somehow Commerce. Welfare, roads, pollution standards, seat belts, trigger locks, wolves, puppies, and on and on. Not only did economic stress like the Depression justify courts and citizens placing all hope in the Federal government, other things contributed to state and citizen resignation to Federal answers to every concern. The Civil War contributed to the notion of Federal ascendancy over states. Civil Rights abuses of the first half of the last century likewise led citizens to question state authority and look to Federal intervention as a panacea. Today, persons mentioning states’ rights evoke a look of astonishment and smiles of tolerance for a quaint topic.

Our Constitution placed the primary jurisdiction over all day-today matters at the state level to both insure responsiveness from rulers we knew and could control and to prevent the concentration of all ruling power at on place as was the custom throughout history with kings, emperors, and dictators. When bad rulers assume power, it is far better to have checks in place than to assume absolute power. The Federal government was necessary to protect the nation and provide comity between the states for the common good and this was their charge in the Constitution. The division of power between these two levels of government is eroding before our eyes, in large measure because of these “do-good” laws.

If it is true that laws like the AWA and ESA are illegitimate but since they have been around awhile, they are irreconcilable, then I confess to not seeing how this dangerous trend can be stopped, much less reversed. Federal politicians, bureaucrats, academics, and the environmental and animal rights cults spurring them on are unstoppable. As with guns, creeping incrementalism will tighten the Federal restrictions at every emotional happening under pandering politicians who will capitalize on such instances for their own profit with the blessing of “progressive” judges. The Founding Fathers knew this was a danger and they knew it was up to each of us to continually prevent this sort of situation from ever getting started. Pictures of some lonely, elderly ladies house trailer full of dogs will justify more Federal “protection” of puppies. Claims of some frog or plant indicating global warming will justify more draconian government controls over people, private property, and increasingly inaccessible public lands in ever-widening circles. Our Federal politicians and bureaucrats will do these things not because they are inherently bad, they will and are doing these things because power corrupts and absolute power corrupts absolutely.

So, call me a Flat Earther or a Luddite. I cling to the notions of our Founding Fathers. The Commerce Clause was not intended as a route for unlimited Federal power expansion at the expense of State governments. State governments are more amenable to the desires of their residents than are remote and all-powerful central governments whatever they may be called. The assumption that no court or judge can or will ever declare the ESA and AWA illegitimate represents a state of despair that I am unwilling to adopt. If the ESA and AWA are not rescinded, things will only get worse, there is nothing to restrain the governmental and radical powers now arrayed against us. The next activist Administration (Spain has shown they can arise unexpectedly from unforeseen circumstances) will take right off where the last one stopped. We will rejoice that Federal inspections won’t be required if we buy the expensive license and ask for permission to breed our dog and we will celebrate when we get a court to say that any herd of 6 or less animals remains under state jurisdiction for the time being. As long as vast Federal jurisdiction over our day-to-day activities stands, things can only get worse.

As with any important confrontation in life, the attitude you go in with is usually what carries you through to victory or defeat. I can only hope that the young people of the nation have the sense and fortitude that has been lacking in the rest of us for too long. Believing that bad laws can be rescinded is the first step back to freedom.

Jim Beers
1 April 2004

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