THE NEW AMERICAN -- February 5, 1996

Copyright 1996 -- American Opinion Publishing, Incorporated

P.O. Box 8040, Appleton, WI 54913

TITLE: Is the Constitution Suspended?
AUTHOR: Thomas A. Burzynski

In recent years, an ever-increasing number of alarming rumors have been paraded before Americans concerning their nation's future. Fears of United Nations forces in Montana, a concentration camp in downtown Indianapolis, and black helicopters everywhere are but a few of the sensational stories that have been spread through talk radio, the Internet, and tabloid newspapers.

The most recent addition to this maelstrom of false alarms offers the theory that the U.S. Constitution has been suspended since 1933 through a declaration of national emergency by President Franklin Roosevelt. This alarming assertion is being promoted chiefly by Dr. Eugene Schroder, a Colorado veterinarian, through his book Constitution: Fact or Fiction. According to a biography provided by his publisher, Dr. Schroder "uncovered the use of emergency powers to set aside the Constitution" several years ago and has been investigating the situation ever since. Dr. Schroder's efforts to publicize the issue have been boosted by interviews in the Spotlight and Anti-Shyster publications as well as through appearances on talk-radio programs.

Dr. Schroder has apparently influenced others. Larry Pratt, executive director of Gun Owners of America (GOA), endorsed and recommended Dr. Schroder's work, declaring that "America needs to read this book!" GOA has released a video, Enemy Public Number One, which mirrors the arguments of Dr. Schroder. Likewise, the Republican Party of Texas, the nation's largest state Republican party, issued a resolution claiming that the Constitution has been suspended and calling for its restoration. John Tello, a member of the executive committee of the Texas Republican Party and the primary backer of the resolution, told The New American, "Dr. Eugene Schroder worked with us." Seemingly, these groups have taken Dr. Schroder's theory as fact without checking the accuracy of the information on which it is based.

The Schroder Theory

According to Schroder, the foundation for the current crisis was laid on October 6, 1917 with the passage of the Trading With the Enemy Act. This act gave the President the power to regulate, during time of war, all financial transactions involving any "individual, partnership, or body of individuals residing within any nation with which the U.S. is at war." On March 9, 1933, five days after Roosevelt's inauguration and four days after he had declared a national emergency, Congress passed the Emergency Banking Act, which amended the Trading With the Enemy Act to include regulation of transactions not only with the enemy but also between Americans during time of war or national emergency.

Since FDR had already declared a national emergency to deal with the bank "crisis," this unconstitutional legislation immediately gave the President much of the confidence he needed to launch the economic segment of his "New Deal" agenda. The result, of course, was an assault on the traditional form of American government and the free enterprise system under which America had flourished. FDR's declaration of a national emergency has never been terminated and has been joined by numerous other declarations of national emergency by subsequent presidents. Dr. Schroder cites this, as well as various government reports and laws, as "proof" that our nation has slipped into an "unconstitutional dictatorship." But as we shall see, he overlooks the fact that the Constitution is the supreme law of the land and cannot be suspended or superseded via a law or presidential decree. In effect, he confuses violations of the Constitution with a suspension of the Constitution.

Fact and Fiction

One piece of Schroder's documentation comes from a 1973 Senate report which ominously stated:

"Since March 9, 1933, the United States has been in a state of declared national emergency.... Under powers delegated ... [during a national emergency] the President may: seize property; organize and control the means of production; seize commodities; assign military forces abroad; institute martial law; seize and control all transportation and communication; regulate the operation of private enterprise; restrict travel; and, in a plethora of particular ways, control the lives of all American citizens."

Aside from being unconstitutional, the level of tyranny described by this 22-year-old Senate report has never been reached. Harold Relyea, a specialist in American national government with the Congressional Research Service, explained to The New American: "The emergency declared in 1933 still exists as a matter of law but not as a matter of policy. It has never been terminated but all authority conferred by the declaration has gone into dormancy."

In his book Constitution: Fact or Fiction, Dr. Schroder contends: "The [U.S.] Constitution can be suspended by any president of the US who ascertains and proclaims a widespread territorial revolt." This claim, however, is not sustained by the Constitution itself, which is the sole legitimate source of federal power. The writ of habeas corpus, as specified in Article I, section 9, is the lone provision of the Constitution which may be suspended -- and even then, only in "cases of rebellion or invasion." Under the Constitution the writ could be suspended during a period of national emergency only if the national emergency in question were a "rebellion or invasion." As Relyea emphasized to The New American, "The Constitution has never been suspended."

So how does Schroder reach his conclusion in light of the Constitution? Largely by way of faulty research. For instance, one of the primary pieces of evidence he cites involves Title 12, Section 95(b) of the United States Code. Writes Schroder:

"[I]f we went to the library today and picked up a copy of 12 USC and went to section 95(b) ... we will find a law which states: 'The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March 4, 1933, pursuant to the authority conferred by subsection (b) of section 5 of the Act of October 6, 1917 [Trading With the Enemy Act], as amended, are hereby approved and confirmed.' "

Schroder claims that this section of the U.S. Code means that everything the President or the Secretary of the Treasury has done since March 4, 1933 and anything that the President or the Secretary of the Treasury is hereafter going to do is automatically "approved and confirmed."

However, research reveals that Dr. Schroder is wrong. Doing as he suggests, this author went to the library, picked up a copy of Title 12 USC, and went to section 95(b), where he found the following:

"The actions, regulations, rules, licenses, orders and proclamations heretofore or hereafter taken, promulgated, made, or issued by the President of the United States or the Secretary of the Treasury since March 4, 1933, pursuant to the authority conferred by section 95a of this title, are approved and confirmed."

Looking in section 95(b) of USC Title 12, this writer found, in place of Dr. Schroder's reference to the 1917 Trading With the Enemy Act, a reference to "section 95(a) of this title." Section 95(a) refers only to a time of war, not to a period of national emergency. Dr. Schroder quoted from an outdated version of the U.S. Code.

In addition, the 1995 resolution passed by the Texas Republicans contains the very same error. John Tello told The New American that Schroder "became aware of the change in 1987." But Tello added that the change in this law is reflected neither in his resolution nor in Schroder's book because they both believe the government is still operating under the older phraseology.

Ignoring the Constitution

The current emergency power supplied to the President and the Secretary of the Treasury by section 95(a) authorizes them to regulate America's banking system, even to order the closing of banks. But such powers are clearly unconstitutional on two counts: The Constitution contains no authorization for any federal authority to declare a national emergency, and it likewise contains no authorization for regulating or closing banks. The absence of such grants of power in the body of the Constitution are, of course, reinforced by the Tenth Amendment. Therefore, the Constitution cannot be suspended as Dr. Schroder believes. Instead, its fundamental limitations are being ignored and the power of the executive branch of government is being permitted to grow to ominous proportions.

Dr. Schroder makes another misstep when he cites the Trading With the Enemy Act. To buttress his claim that we live in a dictatorship brought on via the use of emergency powers, he cites the following portion of the act: "During time of war or during any other period of national emergency declared by the President, the President may ..." regulate to the point of prohibiting any transaction involving Americans. But even this portion of the act, though always unconstitutional, was amended in 1977 to read: "During time of war, the President may...." What was deleted from the original by the 1977 amendment, of course, is the reference to a "national emergency declared by the President."

In 1976 Congress passed the National Emergencies Termination Act, which specified that any national emergency not extended by the President on an annual basis will be automatically terminated. Also, the act recognized the power of Congress to terminate a national emergency. Schroder claims that the national emergency declared by FDR in 1933 was expressly exempted from this act. But he fails to note that this exemption was done away with one year later in a measure amending the Trading With the Enemy Act.

Danger of Rumors

The rumor of a suspended Constitution represents only the latest in what has become a labyrinth of false trails and dead-ends, all with the potential to confuse and neutralize well-meaning conservatives. Mysterious executive orders prohibiting food hoarding, undue concern about yellow fringes around the American flag, and tales of Russian weather modification all damage the credibility of otherwise effective conservative activists. But the rumor that the Constitution has already been suspended delivers a double blow to the conservative movement since it is not only patently false, but is infecting good Americans with a sense of hopelessness. If the Constitution has been suspended, then constituent pressure on congressmen is useless, all checks and balances designed into our system of government no longer apply, and the government is incapable of safeguarding our God-given rights.

Fortunately, as long as the Constitution still stands, any government action that is based on extra-constitutional powers is ipso facto unconstitutional. What America needs are congressional declarations that expose as nullities all illegally usurped powers. In addition, the people must learn to resist the distractions of the rumor mill and, instead, generate constant and informed vigilance lest their freedoms disappear at the hands of those who always claim that they mean to rule well, but who most of all mean always to rule.


THE NEW AMERICAN -- February 5, 1996
Copyright 1996 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI 54913
SUBSCRIPTIONS: $39.00/year (26 issues) 1-800-727-TRUE