Those who worry about the Tenth Amendment should sink their teeth into this long and disturbing look at the birth of the animal disease regulation industry.

Many Americans became convinced that only the federal government could enforce the collective action needed for success. Preventing the spread of contagious diseases required creating an authority with the power to act immediately to impose quarantines, enter private property without warrants, and destroy animals. Crisis conditions called for the "one man power principle," suspending time-honored checks and balances. Not everyone agreed. Special interests, most notably Texas ranchers, opposed any legislation that might threaten their access to northern markets. In addition states rights and civil rights issues galvanized the opposition. The stakes were enormous and farmers, railroads, meat packers, middlemen of all sorts, public health advocates in the medical community, veterinarians, and consumer groups chose sides. Fierce battles to give state and federal animal health officers the power to inspect, regulated the movement of animals, and condemn animals were fought in the press, state capitals, the halls of Congress, and the courts. On occasion, vigilantes took the law into their own hands interrupting trade, destroying property, and murdering government agents.

Animals carried diseases, people were afraid, and they looked to the federal government for a collective response.

Formerly outspoken opponents of granting the federal government unconstitutional powers not specifically granted in the Constitution did more than go wobbly; they flip-flopped. A typical example was Republican Senator John Ingalls:

A look at the record of a few key senators further adds to our understanding of why the bill finally succeeded. In 1881, when a similar bill (S. No. 2097) died in the Senate, the leader of the opposition was Senator John Ingalls, a Republican from Kansas.96 He left no doubt as to his opinion:"...I feel impelled to say that it is without any exception the worst bill that I ever read upon any subject. It is bad in principle; it is bad in theory; it is bad in policy, and worse in detail. He went on to assert that every one of its provisions "is directly at variance with the Constitution...." Ingalls further charged that the legislation would "put the entire live-stock business of this country at the mercy of a totally irresponsible machine...."97 "It is a hydra-headed monster, it is a regular octopus, a legislative devil-fish, with its arms extending in every direction, and gasping within its pernicious embrace every feature of one of the most valuable industries of this country, without one single particle of responsibility to any source whatever."98

This 1881 "devil-fish" died in the Senate without a roll call being recorded.99 In 1882 Ingalls spoke against and voted for killing a similar bill (HR No. 896). In 1883 he again sided with the opponents in a vote on the same bill (HR No. 896).100 By 1884, Ingalls was an ardent supporter of the FDM bill to help fight the suspected outbreak in Kansas and went so far as to declare that "the doctrine of State rights and State sovereignty dies hard, but I think it is moribund and in the course of time will eventually be buried." Where in 1881 States Rights was a sacred principle for the Senator, it was now an "exploded, abandoned, and defunct interpretation of the Constitution."101

Apart for one procedural comment, the Senator was mute in the debates and voted with the bill's hard-line supporters on two of the key early skirmishes.102 Ingalls was absent for the remained of the ballots, but it is likely that he had changed his colors. What in 1881 was an unconstitutional "hydra-headed monster" was now worthy of his support. What had changed? Precisely at the time that Ingalls flipped a FMD scare erupted in five counties of his home state as well as in Missouri and Illinois.

American constitutional and economic history has devoted considerable attention to the federal government's emergence as a regulator of economic activity. In this literature the first significant federal economic regulatory initiatives date to the passage of the Interstate Commerce Commission Act (1887) and the Sherman Anti-Trust Act (1890). These measures are traditionally viewed as part a long narrative of the rising federal power to confront big business, especially to take on monopoly power in transportation and manufacturing. The literature makes no mention of the establishment of the Bureau of Animal Industry in 1884 and the subsequent rapid expansion of its powers. This omission seems unjustified for several reasons. First, the livestock industry, while smaller than the railroad industry, was not much smaller.

There were $1.85 billion invested in livestock inventories and $2.62 billion in railroads in 1880, and the two industries were closely dependent on one another.114 The interregional and international trade in livestock and meat was growing rapidly in the 1870s and 1880s. Second, the debate to create a federal bureaucracy with powers to regulate diseased livestock preceded and in many ways anticipated the problems confronted in the creation of the ICC. For this reason our analysis of the controversy surrounding the birth of the BAI sheds light on the growth of regulation more generally.

It's all too easy to point the finger at FDR and LBJ, but they wouldn't have been able to do what they did without the framework that was already in place.

There's an old saying that bad cases make bad law, but when people are in a panic (as they always are over things like wars and diseases), they are willing to do almost anything.

Sadly, precedents like this make me wonder about the utility of advancing Tenth Amendment arguments against things like Climate Change or government-run health care. This is not to say that monstrosities like Cap-and-Trade, the Copenhagen Treaty, and Obamacare don't violate the Tenth Amendment, because they do. But history shows that the country has been quite willing to ignore the Constitution when it is seen as getting in the way of solving problems that scare people.

Without getting into the constitutional arguments, it was quite logical for people -- then or now -- to see uncontrolled animal diseases as scarier than government inspections. Thus, supporting the BAI was seen as a no-brainer, the Tenth Amendment be damned. In purely utilitarian terms, the solution was seen as a lesser threat than the problem.

But OTOH, I think that people are more likely to oppose legislation when they consider it scarier than the problems that scare them. When the solution is seen as scarier than the problem -- especially when the "problem" is so overstated as Global Warming, and the "solution" consists of sweeping and drastic regulations which would cause economic harm and personal inconvenience to virtually every last citizen in the country, there are better arguments to deploy than to simply call it unconstitutional. (An argument which can nowadays be made against most congressional legislation anyway.)

Especially now, when the "evidence" that there even exists an imminent problem is so underwhelming that its opponents admit it's a "travesty." The latter (in a CRU email) prompted a marvelous outburst of skepticism from George F. Will (hardly a raving Constitutional literalist):

never in peacetime history has the government-media-academic complex been in such sustained propagandistic lockstep about any subject.

A CRU e-mail says: "The fact is that we can't account for the lack of warming at the moment" -- this "moment" is in its second decade -- "and it is a travesty that we can't."

The travesty is the intellectual arrogance of the authors of climate change models partially based on the problematic practice of reconstructing long-term prior climate changes. On such models we are supposed to wager trillions of dollars -- and substantially diminished freedom.

Some climate scientists compound their delusions of intellectual adequacy with messiah complexes. They seem to suppose themselves a small clerisy entrusted with the most urgent truth ever discovered. On it, and hence on them, the planet's fate depends. So some of them consider it virtuous to embroider facts, exaggerate certitudes, suppress inconvenient data, and manipulate the peer review process to suppress scholarly dissent and, above all, to declare that the debate is over.

They can say that about the Constitution if they want, but they're still stuck with a more pressing problem.

The exploded, abandoned, and defunct interpretation of data.

MORE: More on the explosion and abandonment from Roger L. Simon ("Things are falling apart with amazing rapidity for the man-made global warming movement"), and from Bruce Bawer

The bombshell revelations of recent weeks, now known as Climategate, and explored so thoroughly and informatively on this website, should have shaken to the roots any true believer in the doctrine of man-made global warming owing to CO2 and other greenhouse gases. But so far there appear not to have been any major defections from the climate club -- not that that's really much of a surprise, because even before the dam burst, it was clear that this whole movement to place global warming at the heart of the international agenda wasn't about responsible science but about politics, pure and simple. The plain fact is that after Communism disappeared in Europe, the Green movement arose to take its place as a counterforce to democratic capitalism -- meaning that every crank and malcontent who previously would have been a Communist or fellow traveler now keeps busy ranting about the way in which capitalist societies, America above all, are brutally destroying the environment, greedily using up resources at rates a zillion times higher than people in developing countries. The global-warming cause is a subset of this -- and to my mind it's always seemed to be, for Europeans anyway, not only a means of elbowing the U.S. in the ribs, but also a convenient distraction, a way to avoid dealing with the continent's real problem, namely Islamization, while still allowing oneself to posture as a serious, responsible-minded citizen.