THE NEW AMERICAN -- February 5, 1996
Copyright 1996 -- American Opinion Publishing, Incorporated
P.O. Box 8040, Appleton, WI 54913
TITLE: Is the Constitution Suspended?
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
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
"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
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.
"[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
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
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.
END OF ARTICLE
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