Nondelegation and the heart of progressive ideology

One of the most damaging yet least-known Supreme Court cases is J. W. Hampton, Jr., & Co. v. United States (1928). This case is much, much worse than the more well known case of Wickard v. Filburn.

Wickard enables the bureaucracy to distort the commerce clause to do damage to our lives. Hampton enables the bureaucracy to exist. Without Hampton, Wickard is effectively repealed. A Twofer!

Hampton also has another effect that is usually missed. There is a question as to when the Supreme Court decided it was fit to become involved in the process of creating law. This is usually misattributed to Marbury v. Madison, which deals with nothing more than judicial review. A reading of the full text of Marbury quickly disspells this allusion. The new activist Supreme Court owes in part its activism to the 1928 Hampton case. Let me say this loud and say it clear:

The Founding generation did not give us an activist court. The Progressives did. Marbury is. Not. The. Problem. Time to stop tilting at windmills.

The effect of Hampton is that it creates(Or at least fosters the idea) in the courts a sort of an expert panel on the constitution. Who says what the Constitution actually means? It's supposed to be the people. The courts have decided that they are the final arbiters of the constitution. This idea that the courts should be an expert panel is rooted deeply in progressive ideology from some of the heavyweights of their early years such as Wilson and Croly. See: http://progressingamerica.blogspot.com/2012/11/progressivism-judiciary-is-expert-panel.html for some of what they wrote and why it mattered so much to them. This idea of "the experts" is core to progressive ideology, and at the time of both the Founding as well as Marbury, the courts were not experts. They were just judges.

I'm bringing this up because of a recent court case Gundy v. United States. It is both interesting and ironic that the progressives oh-so-dear non-delegation doctrine was nearly blown out of the water by a sexual offender, considering how often they weaponize this concept of sexual offenders against conservatives in order to keep government large. But whatever. I'll take it.

The end result is that the doctrine of nondelegation still stands, however look at the press. They are freaking out. They know how close they came to demolition. If nondelegation were taken out that would probably comprise 80 percent of progressivism. Not a bad first blow. However, the ruinous legacy of Woodrow Wilson as well as the ruinous legacy of Theodore Roosevelt would still be left standing and as long as those are still in place our beloved constitution is not safe from the ravages of progressivism.