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WILL: Slipping the constitutional leash

In May 1918, with America embroiled in the First World War, Iowa’s Gov. William Lloyd Harding dealt a blow against Germany. His Babel Proclamation — that was its title; you cannot make this stuff up — decreed: “Conversation in public places, on trains and over the telephone should be in the English language.” The proscription included church services, funerals and pretty much everything else.

Iowa’s immigrant communities that spoke Danish, Dutch, Norwegian and French objected to this censorship of languages of America’s wartime allies. Harding, however, said speaking any foreign language was an “opportunity (for) the enemy to scatter propaganda.” Conversations on street corners and over telephone party lines — Iowa telephone operators did the metadata-gathering that today’s National Security Agency does — resulted in arrests. Harding was ridiculed, but Germany lost the war, so there.

The war validated Randolph Bourne’s axiom that “war is the health of the state,” but it killed Bourne, who died in December 1918 from the influenza epidemic the war unleashed. Today, as another war is enlarging government’s intrusiveness and energizing debate about intrusiveness, it is timely to remember that war is not the only, or even primary, cause of this.

Or, more precisely, actual war is not the only cause. Ersatz “wars” — domestic wars on various real or imagined vices — also wound the defense of limited government. So argue David B. Kopel and Trevor Burrus in their essay “Sex, Drugs, Alcohol, Gambling and Guns: The Synergistic Constitutional Effects.”

Kopel and Burrus, both associated with Washington’s libertarian Cato Institute, cite the 1914 Harrison Narcotics Act, which taxed dealings involving opium or coca leaves, as an early example of morals legislation passed using Congress’ enumerated taxing power as a pretext. In 1919, the U.S. Supreme Court held that the law “may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue.”

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