The Star Chamber(s)

Prerogative power

Self Protection

The Star Chamber(s)

By Stephen L. Wilmeth

              The demeanor of Margaret Byfield is one of confidence and composure.

As one of Wayne and Jean Hage’s children who grew up in the cauldron of western lands conflict that resulted in what she terms the most significant Fifth Amendment victory for property owners in the last two decades, such calmness belies the turmoil of the legal battle waged for three decades against her family. Rather than being bitter, Margaret suggests the West is better off with the knowledge gleaned from what transpired in the Nevada sage brush flats and mountains of her youth.

Such discussion isn’t unique.

            Too many Americans are realizing they know much more about law today than six years ago. Likewise, when Federalist Papers are elevated into references and discussed by opinion, change is occurring.

A well known radio commentator has even given credit to the fellow who resides at 1600 Pennsylvania Avenue (when he is not fund raising or golfing somewhere) for the extensive reawakening of self-education of the Constitution. Perhaps that can be tagged to his name and legacy. It certainly hasn’t been his exemplary adherence to the document that will emblazon him in our memories or our hearts.

            In fact, a whole new industry is emerging. It encompasses the counter measures being developed and arrayed against the continuing assault on heritage industries. Legal practitioners, policy experts, and industry veterans are finding themselves being asked to craft defensive measures for the protection of those segments of our society.

            Limited help is coming from any form of government. In fact, the contrary is the norm. There is little indication that government is arrayed with the founding cornerstone … the tax paying Americans who have been treated with willful disregard.

            Prerogative power

            In constitutional study, the realization that scripture reminding us what has been will be again, what has been done will be done again; there is nothing new under the sun (Eccl 1:9) imparts a dynamic, living context to the document. The Framers didn’t just wake up with new ideas to be woven into the concept. The discussions were based upon past tyrannical insults on human beings with the intention of limiting the evils of arbitrary power in the future.

            Philip Hamburger, Columbia Law School, gives an excellent background in what we are witnessing today in the expansion of administrative overreach. It was exactly what the Hage family faced and what Margaret Byfield’s father based his defense.

In the Hamburger speech, “The History and Danger of Administrative Law”, the implication there is nothing new under the sun comes clearly into view. The Constitution was the consolidation of defenses that spanned the history of mankind, but became more modernistic in their interpretation starting in eleventh century England.

A stepwise course took place that addressed human abuses and converted protections into law, but time and again efforts were made by kings and their agents to reverse the process. They attempted to circumvent the laws that created roadblocks in their ongoing temptations of power. As binding power was achieved in the protection of basic human rights, the ensconced ruling class responded by issuing proclamations and decrees whereby renewing the same old tyrannical societal controls through administrative power … prerogative power.

The Constitution arose to forbid such tyrannical retrenchment.

The Star Chamber

A revealing parallel between the federal agencies today and the excesses of the king’s prerogative courts can be traced to the Star Chamber. The Star Chamber was an English Administrative Court of Law housed within the Palace of Westminster. It evolved apart from parliament and arose from meetings of the King’s Council. The King argued it had to exist in order to assure adjudication of actions against the wealthy that the common courts wouldn’t prosecute. The members of parliament observed the proceedings with their mouths open and their eyes rolling around in their heads similarly to congressional actions toward modern agency expansion.

What it was and what it was revealed to be was a political weapon. The judgments were often arbitrary and subjective. Its flexibility and independence approached unlimited power.

Brandishing increasing and unchecked power, the privy councilors not only imposed punishment that was professed to be the letter of the law, but actions against what was subjectively deemed morally reprehensible apart from the law. The outcome was a juggernaut of layered sentencing as testimony was extracted from the defendants. It became a weapon of immense power abuse.

During the eleven year rule of Charles I, it even became the proxy for parliament when Charlie concluded he didn’t need that body to rule England in the manner he deemed appropriate. The judgments became so inventive Archbishop Laud had William Prynne hauled out of the chamber to be branded on both cheeks for seditious libel. Anything short of death was acceptable, but the truth remains death was probably tolerated because no single leader had the ability to alter the course of the extra governmental body.

In 1641, the Star Chamber was finally abolished.

Its recurring existence

Hamburger sets forth the existence of the same extra governmental expansion of our system in the form of agency creation.

The floodgates were cracked and the rise of age old absolutism in American was spawned in 1887 when Congress created the Interstate Commerce Commission. His words lead you to believe the stepwise expansion of agencies accelerated the temptation to assume power administratively by issuing regulations and policy. These actions were no different and much more expansive than the writs and decrees issued from the gloomy and dank offices of the King’s men of the Middle Ages.

He details the expansion of executive power through extra and supra legal powers as well as the consolidation of powers. From the extra legal powers, agencies are binding the American system not through laws or statutes but through rules and regulations. It is from the supra legal power that judges are expected to defer, and it is through the consolidation of power that the three pillars of our government (legislative, executive, and judicial) are expected to unite to defer absolute power back to the King, or in our case, his proxy.

When an agency like the EPA can threaten to charge a couple $10,000 a day for the construction of a home they intend to build on land that was transacted legally and in good faith but happens to be placed into some wet lands classification, all procedural rights guaranteed in the Constitution must be considered shredded. Try to find a fundamental law that prescribes such prerogative judgment.

Such action can only be judged as the commandeering of absolute power through illegal delegation of legislative power which the Constitution expressly prohibits.  As seen in the case of the EPA, the agencies can subject Americans to Star Chamber courts without real judges, without juries, and without constitutional authority. The very fact the courts support such action is symptomatic of the similarly illegal consolidation of powers that was fundamental in the crafting of the Constitution and the ultimate defense of its existence in the American Revolution.

We have a problem folks.

It is not a matter of identifying the chasms of evil that prompted the historical evolution of law that promoted human decency. Rather, it is now the federal and systemic dismantling of the document that set forth prescribed defenses of those very protections.  

We have multiple Star Chambers.

They exist in governmental fiefdoms whose managers were once agents of the federal government, but have become agents unto themselves. Not content to operate within the framework of the Constitution they are operating with the same independence of their prerogative bound counterpart of the Dark Ages.

The Solution

Left unto themselves, federal agencies will continue to consolidate power. There is no difference in them and the inquisitional processes of the Star Chamber. There is no self correction.

The courts provide no recourse, either. Agency issued regulations have the force of law.  The course must be to simply defund the prerogative power of the modern crown, particularly the agencies assuming legislative powers within the federal government, and … elect leaders who can actually pass a constitutional exam.

Stephen L. Wilmeth is a rancher from southern New Mexico. “Pleading the 5^th comes directly from the horrors of the Star Chamber where multiple indictments could accumulate as witness testimony proceeded. Indeed … there is nothing new under the sun.”