Imagine it's eleven years from now and certain changes are enacted into law – ones that have begun in Tony Blair's Britain but then migrate to America. The scenario below may jolt you, but a "living Constitution" interpretation would declare them Constitutional. All it would take is a crisis sufficient for the war State to be seen as protective, rather than imposative, by the mainstream American.
You're at home and the doorbell rings. Two gentlemen are there to greet you, both in uniform. Their grooming is impeccable enough to make you insecure about yours. The head man shows you government authorization and asks to be taken to your personal library. Once there, they go through the titles of your books as you watch: one reading the titles out, the other entering them into a laptop. At the end of the inspection, as you're frozen into acting like you're not in your own home, some of the books are taken from your shelves.
"Atlas Shrugged? I'm doing you a favor: you'll read it too many times anyway. Same thing goes for the rest of the Rand…. Oh, you like that kind of economics? Well, it's got to go too. Well, well – the scholar's edition! Nice binding….. Yes, even Capitalism and Freedom, though it was iffy for a time there. Same thing with the Chomsky, even if he didn't mind being the nutcase at times…. Oh! That's Milton Friedman's son, isn't it? A pity he had to be so prodigal…"
Lest you think that this is merely an updated version of Fahrenheit 451's dark vision, consider this ending:
"Now…as authorized by law, I am entitled to disburse you $280 for all of these books which are now being sold to the Government of the United States. Once you accept these funds as just compensation for the property you have turned over, they are now the property of the United States Government. What we do with them subsequently is up to us."
Yes, Congress does have this power now, even though it is largely confined to real property, not personal property as yet. It's called eminent domain, and it has been used to confiscate personal property in the past. Refusing to sell your gold coins to the U.S. government back in 1933 made you liable for a felony conviction. The law used to enforce the sale was the Emergency Banking Relief Act of 1933, and it was deemed constitutional by the Supreme Court.
The EBR Act extended powers under the Trading With The Enemy Act to times of “national emergency,” as declared by the President, which President Roosevelt did in Executive Order 6260. The ultimate source of the authority for it, though, is in the Fifth Article of Amendment in the United States Constitution: “No person shall… be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Note that the Fifth Amendment makes no distinction between real and personal property.
This means: if the U.S. government can forcibly buy real property from U.S. citizens, then it can buy personal property also. Your real estate is just as vulnerable to a taking as your books, and vice versa. All it takes for eminent domain to be justified for a taking of personal property is a credible "public use" for it, such as sending it to Canada to bump up the prestige of the United States there.
It is now customary to justify almost any violation of the free market through invoking what is called the "general welfare clause" of the Constitution. As long as the war State is a permanent State, though, it is only a matter of time before "common defense" becomes just as elastic. These two phrases are part of the same clause.
Imagine reading this in a civics textbook fifteen years from now:
"The Subversive Books Patriation Act has been justified on the grounds that free speech has not been significantly infringed due to the availability of post-modern means of transmission of political discourse, ones which the Founders could not have imagined at the time of the Founding. Just as the modern corporation was never foreseen in a United States which was largely agrarian, the advent of the modern Internet was unforeseen too. Before continuing, you should stop and ask yourself what use our Founders would have made of E-mails, chat rooms, voice chat, and other, more advanced means of Internet communication.
"There are groups, such as the National Readers' Association, who dispute the use of the term u2018reasonable' to describe the mainstream view justifying the SBPA. They claim that the protections in the First Amendment contain a special status in United States tradition which makes the limitation of them on Fifth Amendment grounds incompatible with our traditions. Although their point of view did not merit the strike-down of the SBPA in the Supreme Court, views of groups such as the NRA did prevail when the Academic Accuracy Act was struck down…"
Could events overtake the First Amendment in this way? To answer this question, ask yourself what has become of the protections in the Tenth and Second Amendments. The continual incursions on the latter have always been justified on common-defense (public safety) grounds.
Let's go back to the scenario that started this piece. After seeing the gentlemen at arms walking away with the books they have just "bought," you go back to your study to look at the gaps in your shelves. You know that buying the books now gone is still legal, even if they are getting harder to find. You've even heard rumors that some opportunity-seeking people are buying cheap used copies of books on the subversion list and reselling them to the U.S. government at a profit. Although this kind of middlemanship is tolerated, something seems disreputable about it. The people who brag about doing it shrug off the disparity as a kind of bounty, and also brag about being bounty hunters of a sort.
As you recover from your shock, the odd feeling of being stripped from your own home disappears too. The two men now gone weren't that unfriendly, and they were polite. They did pay for what they took, and you did get full price as specified in the rate schedule. Maybe your personal valuation of the books now gone was only subjective. The prestigious economists continually say that valuations do follow statistical norms, and thus imply that anyone who feels cheated by these new measures is an oddball. No mention of "profiteer" has ever been made, to your recollection. No, profits are held in some repute nowadays. What the country has turned into couldn't be a socialist republic. The new money will come in handy, too – it might even be needed.
Another caller interrupts your reverie – this time, it's a woman. She's dressed in casual clothes, and even appear homey, but something about her says "officious" all the same.
"Hi. I'm your new tenant."
You blink furiously and then remember The Public Tenancy Authorization Act. Any householder is now required by law to rent a room to any employee of the U.S. government, in exchange for a fair rent decided by a rent commission. The ones that got set up did balance the directors between landlords and tenants, so it couldn't really be called confiscatory. The government tenants you've heard about are well behaved, and she acts that way too.
"Why so bemused? I'm not that good looking." There seems no better way to answer her than to show her to her new abode. You content yourself with the thought that you could use the extra money each month, and the government did give you enough advance notice.
She didn't bring much with her. Casual clothes; stylish evening wear; uniforms with captain's bars on the lapels….
May 5, 2006
