In order to restore Natural Law to our government, you need to understand where our rights come from, where government powers come from, how they are applied, and their limits. That is the purpose of these chapters.

The following is taken from my book The Poverty Trap, self published, Copyright (C) 1992. You may find references to sections of the book not included here. Whenever [brackets] appear, they are my words, not those of the quotation. Some books are cited in abbreviated form; the complete citation can be found in the bibliography.

Am Jur (American Jurisprudence) and C.J.S. (Corpus Juris Secundum) are legal encyclopedias. These are not court opinions, but the encyclopedia's interpretations of court opinions. This copy was scanned in; there may be scanning errors.

Supra means above; infra means below; ante means before.

HTML code has converted my footnotes into endnotes. Read them; use the back button to get back.

CHAPTER 5

WHERE RIGHTS AND GOVERNMENT POWERS COME FROM

Copyright 2005

Where your rights come from is a vitally important question, because if you do not know what gives you your rights, then you don’t have any. If you don’t know that you have a right, how can you assert it? Unfortunately the answers are hard to come by. The history and civics books that we are taught with do not address this issue. They pay lip service to the concept ”Of the People, by the People, and for the People”, but never teach how to apply the concept in dealing with government and one’s fellow man. Add to this the fact that the average person has never taken a single law course in his educational career, places the information contained herein into the category of ”secrets”.

HOW THE PEOPLE GAVE OUR GOVERNMENT ITS POWER

From a brief history of the formation of the United States you will learn what the powers of the State and National governments are, and how they got them. This knowledge forms the foundation of this book. You will see that these powers are a gift from the people, and those powers not delegated to the governments are in fact retained by the people. Most importantly, you can use this knowledge in a practical manner to assert your rights.¹

Early settlers in America were widely scattered in small groups struggling to survive. They had no great societal wealth of interest to their European government and were largely left alone. They became educated in the basic principles of republican government.²

In 1620, the Plymouth colonists, before their landing, drew up a compact signed by forty-one persons that created a pure democracy.³ While they were still ”subjects” of the British Government, they were ”citizens” of their own government which was based upon consent and signed contract.

They proceeded to establish their own colonial governments whose power was derived from the people. For the first hundred years, though ”subjects” of Great Britain, they were actually ”citizens” of their own communities, and largely governed themselves by legislators chosen from among themselves. In this manner, through direct experience they learned the vital distinction between ”subject” and ”citizen”.

As their wealth grew, Great Britain began to exercise its rule over the colonies, and as early as 1754, Americans began to feel the burden of their legal status as ”subjects.” Great Britain began to exercise its power to levy upon that wealth; the doctrine of the Old World was that people were made for kings and not kings for the people.

After a hundred years of self government, Americans learned that no government can have any just power except by consent or grant of the governed. And as the government of King George was unshaken in its purpose to require obedience from its ”subjects”, the Declaration of Independence issued in 1776.

[T]he Declaration of Independence, which was the first political act of the American people in their independent sovereign capacity, lays the foundation of our National existence upon this broad proposition: ”That all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness.” [Justice Bradley’s opinion in Slaughter House Cases, 16 Wall 36, 115-116.]

In this Statute, the American people clearly stated and definitely settled for all time the basic legal principle on which rests the validity of every constitutional article or statute law, which either directly interferes or vests ability in governments to interfere with an American in the exercise of his human freedom. There is nothing vague or ambiguous in their statement. The legal principle, so clearly stated and so definitely settled, is that no government in America can have any just power of direct interference with individual freedom unless such power be derived by direct grant from the Americans to be governed by the exercise of that power. That statute has never been repealed. ... From the moment when that Statute was enacted by the supreme will in America, every American ceased forever to be a ”subject” of any government or governments in the world. It was not until 1917 that any government or governments dared to act as if the American were still a ”subject”. [Citizen or Subject?, 8]⁴

At this point, the Americans in each former colony now constituted an independent nation, whose members were now the ”citizens” of that nation. These thirteen nations were allied in war, and there was as yet no federation of nations.

These nations vested in their own governments only a limited ability to interfere with individual freedom. All the citizens were battling with a powerful government that claimed unlimited ability of control over them, and they were battling to establish the doctrine that no government of free men could ever have unlimited ability of that kind. They named many matters in which no laws could be made, such as laws abridging the freedom of speech.

While all Americans throughout America were battling with Great Britain, there was as yet no government anywhere in America that had any power over an American as an American; there were no citizens of America, only citizens of thirteen nations. The affairs of the allied nations were being directed by a committee of delegates from each nation called the Congress.

By 1781 the legislatures of all thirteen nations had ratified the Articles of Confederation. This was a federal Article of government which gave power to govern nations or states as political entities; it was not a national Article of government which would give power to interfere with human freedom. The federal government could not even levy taxes upon individuals. It could only levy taxes upon the states, which had to collect them from the citizens. With the Treaty of Peace with England in 1784, there was still no American citizen. It became clear to some that a federal government was insufficient to serve the needs of the people to secure their freedom. Any demands of the federal government were equivalent to requisitions and largely ignored as there was no way to enforce them. It had no power over commerce to establish uniform trade among the thirteen American nations or foreign nations. The Philadelphia Convention that wrote the Constitution was elected by the state legislatures, but it exercised no power and no authority at all, no more authority than if it was written by a private person, and their proposed Constitution for a government of the United States was sent to the existing Congress, with the request that it be submitted to a convention of delegates, chosen in each state by the people, for their assent and ratification.⁵ It was understood that only the people, not their delegates, could ratify a grant of power, because such power came only from the people. In the end they created a new nation, America, the members thereof to be all the American people. The national government, with national powers over them, would be supreme in its own sphere over the existing nations and governments, with the subordination of the sovereignty and independence of the existing nations. This occurred on June 21, 1788, the birthday of the American nation as a political entity, when the ninth convention of thy American people (in New Hampshire) ratified the Constitution.⁶

The Constitution of the new government was a grant of enumerated powers, and the government had no power other than what was granted. All other powers were retained by the respective states, and the people.

That this is such a government [of enumerated powers] clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. [Kansas v. Colorado, 206 U.S. 46, 89]

[I]t is because the First Article vests in the sole Legislature of the whole American people nothing but enumerated powers to interfere with the freedom of the individual American that our American government has received its universal tribute as a government of nothing but enumerated powers over a free people, who are its citizens. [Citizen or Subject?, 68]

Prior to the U.S. Constitution, none of the people of the 13 nations (which is what they were before they became states) vested their governments with unlimited ability to interfere with individual freedom. All the citizens of these nations were battling with Great Britain .who claimed unlimited power over them as subjects. They were battling to establish forever in America the basic doctrine that no government of free men could ever have unlimited power except as its citizens vested its government.

The powers of each State government were granted by the people since the source of the State’s power comes from the people and nowhere else. These powers and prohibitions are enumerated in each State’s constitution.⁷

The powers of the National government are enumerated in the U.S. Constitution, and the National government has no other powers.⁸

People were concerned that a national government would usurp individual rights, so in order to calm those fears in order that the Constitution might pass, a ”bill of rights” was promised. The first ten Amendments to the Constitution known as the Bill of Rights, were ratified in 1791.

The Bill of Rights did not give you your rights. Your rights existed prior to the U.S. Constitution. The Constitution, as a grant of power to the Federal government, reserved those rights to you; it forbade the National government from infringing on powers reserved to the people, not granted to the government.

The 10th Amendment affirms what was already understood, that ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The first ten Amendments to the Constitution secured to the people no new rights, but merely affirmed what already existed in the Constitution:

It has been settled beyond dispute, in the Supreme Court, that every one of the declarations in these ten Articles was already in the Constitution when it was originally adopted by the citizens of America. [Citizen or Subject?, 77]

The powers of the National government come from the people; these powers were not given to it by the states:

The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by ”the People of the United States.” There can be no doubt, that it was competent to the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers according to their own good pleasure, and to give them a paramount and supreme authority. As little doubt can there be, that the people had a right to prohibit to the states the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact; to make the powers of the state governments, in given cases, subordinate to those of the nation, or to re- serve to themselves those sovereign authorities which they might not choose to delegate to either. [Martin v. Hunter’s Lessee, 1 Wheat 304, 324 (1816)]

The people made the constitution, and the people can unmake it. It is the creature of their will, and lives only by their will. But this supreme and irresistible power to make or to unmake, resides only in the whole body of the people; not in any subdivision of them. [Cohens v. Virginia, 6 Wheat 264, 389 (1821)]

This is in contrast to the English parliament in which the powers did not derive from the people. The people were subjects:

”The concessions of Magna Charta were wrung from the King as guarantees against the oppressions and usurpations of his prerogative. . . . The omnipotence of Parliament over the common law was absolute, even against common right and reason. The actual and practical security for English liberty against legislative tyranny was the power of a free public opinion represented by the Commons.” [Citizen, supra 218, quoting an unnamed source]

The important distinction so well understood in America, between a Constitution established by the people and unalterable by the government, and a law established by the government and alterable by the government, seems to have been little understood and less observed in any other country. Wherever the supreme power of legislation has resided, has been supposed to reside also a full power to change the form of the government. Even in Great Britain, ... it is maintained that the authority of the Parliament is transcendent and uncontrollable, as well with regard to the Constitution as the ordinary objects of legislative provision. They have accordingly, in several instances, actually changed, by legislative acts, some of the most fundamental articles of the government. [The Federalist No. 53]⁹

The U.S. Constitution did not give any power to the states:

When the American people created a national legislature, with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers proceed, not from the ’people of America, but from the people of the several states; and remain, after the adoption of the constitution, what they were before, except so far as they may be abridged by that instrument. [Sturges v. Crowninshield, 4 Wheat 122, 193]

The state governments are distinct and separate from the Federal government:

We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of its own who owe it allegiance, and whose rights, within its jurisdiction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State, but his rights of citizenship under one of these governments will be different from those he has under the other. [United States v. Cruikshank, 92 U.S. 542, 549]

The following is a clear statement of the 10th Amendment:

[T]he constitution gives nothing to the states or to the people. Their rights existed, before it was formed, and are derived from the nature of sovereignty, and the principles of freedom. The constitution gives only to the general government, and so far as it operates on state or popular rights, it takes away a portion, which it gives to the general government. In respect to extent and range, this delegation of powers ought, perhaps, to be literally construed; but the states or the people must not be thereby excluded from the exercise of any part of the sovereign or popular rights held by them, before the adoption of the constitution, except where that instrument has given it exclusively to the general government.” [Gibbons v. Ogdon, 9 Wheat 1, 87]

Its principal purpose was not the distribution of power between the United States and the States, but a reservation to the people of all powers not granted. The Preamble of the Constitution declares who framed it, ”we the people of the United States,” not the people of one State, but the people of all the States, and Article X reserves to the people of all the States the powers not delegated to the United States. The powers affecting the internal affairs of the States not granted to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, and all powers of a national character which are not delegated to the National Government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they re- served to themselves all powers not so delegated. [Kansas v. Colorado, 206 U.S. 46, 90 (1907)]

At this point in time we have two distinct capacities, that of citizen of America, and citizen of our respective state.¹⁰ The Bill of Rights was ratified in 1791; the 11th and 12th Amendments followed shortly after (1804).¹¹ It wasn’t until after the Civil War (1865-1870) that the Anti-Slavery Amendments (13th 14th and 15th) were passed.¹²

DID SLAVES BECOME FREE, OR FREEMEN BECOME SLAVES?

When the Anti-Slavery Amendments (13th – 15th)¹³ were passed, how did this affect our rights’? Some of today’s writers believe that the passage of the 14th Amendment (1868) created a new type of citizenship which destroyed the status of freeperson, took away our rights, and made us subjects of the Federal government. Rather than raising the slaves to the status of freeman, they claim that the 14th Amendment lowered everyone to the status of slave. They teach that citizenship clauses were removed from all the state constitutions, and all that is left is citizenship of the United States.¹⁴

I cannot confirm this position and do not agree with it. For Iowa, the word ”white” was removed from its Constitution in several places, but I could not find any change that affected citizenship.

In Civil Rights Cases, 109 U.S. 3 (1883), 18-19, the court stated that the 14th Amendment is corrective in its character, and does not bestow plenary power upon congress:

... [T]he power given is limited by its object, and any legislation by Congress in the matter must necessarily be corrective in its character, adapted to counteract and redress the operation of such prohibited State laws or proceedings of State officers. [Civil, supra, p. 18]

What we have to decide is, whether such plenary power has been conferred upon Congress by the Fourteenth Amendment; and, in our judgment, it has not. [Civil, supra, p. 19]

Without such plenary power, the federal government cannot treat us as subjects.

And in Slaughter House Cases, 16 Wall 36, 105:

That amendment [14th] was intended to give practical effect to the declaration of 1776 of inalienable rights, rights which are the gift of the Creator, which the law does not confer, but only recognizes.¹⁵

I do not believe that we lost our freeperson status due to the 14th Amendment (1868). A person could be a freeman and a citizen as of 1872, the date of the following case:¹⁶

[0]n the most casual examination of the language of these Amendments [13th, 14th, & 15th], no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. [Slaughter House cases, 16 Wall 36, 71 (1872); this was the first time that the Supreme Court was called upon ”to give construction to these articles.” Slaughter, supra, p. 67]

Prior to the 14th Amendment (1868), there was no clear cut definition of US Citizen. Attorney General Edward Bates that same year made this comment:

”Who is a Citizen? What constitutes a citizen of the United States? I have often been pained by the fruitless search in our law books and the records of our courts, for a clear and satisfactory definition of the phrase citizen of the United States. I find no such definition, no authoritative establishment of the meaning of the phrase, neither by a course of judicial decisions in our courts, nor by the continued and consentaneous action of the different branches of our political Government. For aught I see to the contrary, the subject is now as little understood in its details and elements, and the question as open to argument and to speculative criticism, as it was at the beginning of the Government. Eighty years of practical enjoyment of citizenship, under the Constitution, have not sufficed to teach us either the exact meaning of the word, or the constituent elements of the thing we prize so highly.” [Edward Bates, United States Attorney General, 10 Opinions of the Attorney General 382, 383 (1868); he gives a lot of good insight on citizenship.]

The 14th Amendment defined citizenship:

The first section of the fourteenth article ... opens with a definition of citizenship--not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution, nor had any attempt been made to define it by act of Congress. [Slaughter House Cases, 16 Wall 36, 72]

The intent of the lawmaker is the law, and the intent of the 14th Amendment, was not to lower the status of citizens to that of slaves, but to bestow Citizenship upon the Negro race:

[I]t had been held by this court, in the celebrated Dred Scott case,¹⁷ only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. ... [A]11 the negro race who had recently been made freemen [by the 13th Amendment], were still, not only not citizens, but were incapable of becoming so by anything short of an amendment to the Constitution. To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed. ”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” That its main purpose was to establish the citizenship of the negro can admit of no doubt. [Slaughter House Cases, 16 Wall 36, 73]¹⁸

THE FEDERAL GOVERNMENT HAS LIMITED POWERS

The Federal Government gets its power from the people, and those powers are enumerated in the Constitution. The Government has no other powers.

[T]he constant declaration of this court from the beginning is that this Government is one of enumerated powers. ”The Government, then, of the United States, can claim no powers which are not granted to it by the Constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.” [Citing deleted] ”The Government of the United States is one of delegated, limited, and enumerated powers.” [Citing deleted; Kansas v. Colorado, 206 U.S. 46, 87 (1907)]

That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the Tenth Amendment. This amendment disclosed the widespread fear that the National Government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if in the future further powers seemed necessary they should be granted by the people in the manner they had provided for amending that act. It reads: ”The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” [Kansas, supra, 89-90]

Note that the court explicitly stated that the Federal government does not have the power of general welfare (which the states do).

While undoubtedly the United States as a nation has all the powers which inhere in any nation, Congress is not authorized in all things to act for the nation, and too little effect has been given to the Tenth Article of the amendments to the Constitution, that ”the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” The powers the people have given to the General Government are named in the Constitution, and all not there named, either expressly or by implication, are reserved to the people and can be exercised only by them, or upon further grant from them. [Turner v. Williams, 194 U.S. 279, 295 (1904)]

[I]f the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that where prohibition or limitation is placed upon the power of Congress that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed and that language of restriction is to be narrowly and technically construed. [Kansas, supra, 91]

Thus, the language of the 10th Amendment, that the powers not given to the Federal government are reserved to the people, is to be liberally construed. The Kansas case dealt with the reclamation of arid lands.

At the time of the adoption of the Constitution there were no large tracts of arid land, ... and the Constitution, therefore, makes no provision for a national control of the arid regions or their reclamation. But as our national territory has been enlarged, we have within our borders extensive tracts of arid lands which ought to be reclaimed, and it may well be that no power is adequate for their reclamation other than that of the National Government. But if no such power has been granted, none can be exercised. [Kansas, supra, 91-92]

WHERE THE STATE GETS ITS POWER

There is a principle often stated by government¹⁹ that the state is a sovereign and has inherent powers not derived from anything. This is true only in a certain context, as we will see. The concept of the state as sovereign is a carryover from the concept of the king as sovereign, and has no foundation in this country. The fact is, the state is not the sovereign; the people are. This is demonstrated by the following section of the Iowa Constitution:

Political power. Sec. 2.

All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right, at all times, to alter or reform the same, whenever the public good may require it.

If the State of Iowa was really a sovereign, the people would not have the power to alter the form of government.

All power derives from the people and is a gift to the government. No state has any power, other than what is enumerated in the particular state’s constitution. The reason it could be said that the states have unlimited power is because the ”enumerated” grant of power to the legislature is really an unlimited grant; in the case of Iowa (and perhaps in most states):

Authority of the houses. Sec. 9.

Each house ... shall have all other powers necessary for a branch of the General Assembly of a free and independent State.

Thus, the enumeration, in one sentence, is total and complete. The legislature can pass any law it wants, as long as it doesn’t violate the State’s Constitution; Sections 1, 2 (listed above), and 25 of Iowa’s Bill of Rights are of interest:²⁰

Rights of persons. Section 1.

All men are, by nature, free and equal, and have certain unalienable rights -- among which are those of enjoying and defending life and liberty, acquiring, possessing and protecting property, and pursuing and obtaining safety and happiness.

Rights reserved. Sec. 25.

This enumeration of rights shall not be construed to impair or deny others, retained by the people.

POLICE POWERS

By ”Police Powers” I do not mean powers of the police.²¹ The police powers are those powers that a state possesses to pass any law to protect the general welfare and safety of the people, and protect our unalienable rights given by our Creator. This power is a grant by the people to the state, and is found in the state constitution, as described in the prior section Where the State gets its power.

”Unwholesome trades, slaughter-houses, operations offensive to the senses, the deposit of powder, the application of steam power to propel cars, the building with combustible materials, and the burial of the dead, may all,” says Chancellor Kent, ”be interdicted by law, in the midst of dense masses of population, on the general and rational principle, that every person ought so to use his property as not to injure his neighbors; and that private interests must be made subservient to the general interests of the community.” This is called the police power; and it is declared by Chief Justice Shaw that it is much easier to perceive and realize the existence and sources of it than to mark its boundaries, or prescribe limits to its exercise. This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property. ”It extends ... to the protection of the lives, limbs, health, comfort, and quiet of all persons, and the protection of all property within the State; and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health, and prosperity of the State. Of the perfect right of the legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.” [Slaughter House Cases, 16 Wall 36, 62 (1872)]
 

Each law relating to the police power involves these questions:

First, is there a threatened danger? Second, does the regulation involve a constitutional right? Third, is the regulation reasonable? ... [T]he constitutional right to use property without regulation is plain, unless the public welfare requires its regulation. If the public welfare does require it, the right must yield to the public exigency. And it is upon this question of necessity that the third question depends. All, then, seems to be embraced in the question of necessity. [People v. Smith, 66 N.W. 382, 383 (1896)]

Another case explains that the state cannot regulate under the police powers, unless there is a potential of harm to the public or third persons:

”It has been demonstrated and satisfactorily explained in its application to a sufficient number of parallel and similar cases, in order to lay it down as an invariable rule, that no trade can be subjected to police regulation of any kind unless its prosecution involves some harm or injury to the public or third persons, and in any case the regulation cannot extend beyond the evil which is to be restrained. It has also been maintained, and I think satisfactorily established, that no trade can be prohibited altogether, unless the evil is inherent in the character of the trade, so that the trade, however conducted, and whatever may be the character of the person engaged in it, must necessarily produce injury upon the public or upon individual third persons.” ... It [the government] can never encroach upon the liberty of the citizen or invade the rights of property protected by the constitution. [State v. Scougal, 51 N.W. 858, 862 (1892)]

State v. Scougal tells us the limits of the police power:

If the police power of the state is as broad and comprehensive as claimed by the learned attorney general, the citizen holds his right to liberty, to his property, and to the pursuit of happiness at the will of the legislative power alone. But the rights of the citizen are not thus left to the will of the law-making power. The state constitution and the national constitution have placed around the rights of the citizen safeguards that protect them from invasion by legislative action. [State, supra, p. 863]]

The state has the power to regulate professions in order to protect the public:

There are no Federal police powers:²²Where the Federal Congress, which has no true police power, has no power to regulate a particular subject matter directly, it cannot do so under the guise of taxation. [16A Am Jur 2d Constitutional Law, Sec. 366]

[Inspection laws passed by the States] ”... [f]orm a portion of that immense mass of legislation which controls everything within the territory of a State not surrendered to the General Government--all which can be most advantageously administered by the States themselves. Inspection laws, quarantine laws, health. laws of every description, as well as laws for regulating the internal commerce of a State, and those which respect turnpike roads, ferries, &c., are component parts. No direct general power over these objects is granted to Congress; and consequently they remain subject to State legislation.” [Slaughter House Cases, 16 Wall 36, 63]

FEDERAL GENERAL WELFARE POWERS

In 1933, Congress passed the Agricultural Adjustment Act. There was a disparity between the prices of agricultural products and other commodities, resulting in the destruction of farmers’ purchasing power. The Act attempted to maintain the balance between the production and consumption of agricultural commodities in order to give farmers fair prices.

Among other things, the act provided for reduction in the acreage, in production, or both, of any agricultural commodity through voluntary agreements with producers, for benefit payments upon that production, and for taxation of food processors. [United States v. Butler, 297 U.S. 1, 54 (1935)]

With this Act, the Federal government began to act as if it had unlimited general welfare powers:

Until recently no suggestion of the existence of any such power [of general welfare] in the Federal Government has been advanced. The expressions of the framers of the Constitution, the decisions of the court interpreting that instrument, and the writings of great commentators will be searched in vain for any suggestion that there exists in the clause under discussion²³ or elsewhere in the Constitution, the authority whereby every provision and every fair implication from that instrument may be subverted, the independence of the individual states obliterated, and the United States converted into a central government exercising uncontrolled police power in every state of the Union, superseding all local control or regulation of the affairs or concerns of the states. [Butler, supra, p. 77]²⁴

The general welfare clause had two different possible constructions. It wasn’t until about 145 years after the constitution was ratified that the court was called upon to make a choice between the two:²⁵

Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase [”general welfare”]. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view, the phrase is a mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant of them, and Congress consequently has a substantive power to tax and to appropriate, limited only by the requirement that it shall be exercised to provide for the general welfare of the United States. Each contention has had the support of those whose views are entitled to weight. This court has noticed the question, but has never found it necessary to decide which is the true construction. [United States v. Butler, 297 U.S. 1, 65]

With the Butler case in 1935, the court chose Hamilton’s view, giving the government new powers of general welfare:

It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution. [Butler, supra, 66]

In other words, Congress can tax and spend money on anything it wants, as long as it is for the general welfare; this power is not dependent on the enumerated powers.

The general welfare clause relates to the power to tax and appropriate funds; it does not give Congress power to regulate:

[T]he phrase ”to provide for the general welfare” qualifies the power ”to lay and collect taxes.” The view that the clause grants power to provide for the general welfare, independently of the taxing power, has never been authoritatively accepted. ... The true construction undoubtedly is that the only thing granted is the power to tax for the purpose of providing funds for payment of the nation’s debts and making provision for the general welfare. [Butler, supra, 64]

While the power to tax food processors is an excise, and valid of and by itself, this power cannot be separated from the Agricultural Act, whose purpose was to regulate agricultural production. The entire act must be viewed.

The tax can only be sustained by ignoring the avowed purpose and operation of the act, and holding it a measure merely laying an excise upon processors to raise revenue for the support of government. [Butler, supra, 58]

While the court gave the government power of general welfare, it nevertheless argues that it didn’t break down the barriers which would give the government uncontrolled police powers:

[T]hough the makers of the Constitution, in erecting the federal government, intended sedulously to limit and define its powers, ... [the argument must be rejected that] they nevertheless by a single clause gave power to the Congress to tear down the barriers, to invade the states’ jurisdiction, and to become a parliament of the whole people, subject to no restrictions save such as are self-imposed. [Butler, supra, 78]

The court ruled that powers not granted the Federal government are prohibited:

None to regulate agricultural production is given, and therefore legislation by Congress for that purpose is forbidden. [Butler, supra, 68]

Though the Federal government does not have the power to regulate, it can set conditions that a recipient must accept in order to receive funds. This is in my opinion equivalent to regulation, but such regulation is voluntary. Congress cannot use the taxing power to regulate matters of state concern that are outside of its control:

Congress cannot, under the pretext of executing delegated power, pass laws for the accomplishment of objects not entrusted to the Federal Government.

[R]esort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible. [Butler, supra, 69]

Unfortunately, Congress is using this power to regulate. Congress simply taxes funds from the states, and then returns the funds to them on the condition that the states follow prescribed conditions. This is just what the Butler case warned against:

The power to confer or withhold unlimited benefits is the power to coerce or destroy. If the cotton grower elects not to accept the benefits, he will receive less for his crops; those who receive payments will be able to undersell him. The result may well be financial ruin. ... The asserted power of choice is illusory. [Butler, supra, 71]

I believe that the court, in giving the Federal government the power to tax for the general welfare, made a mistake. The exercise of this power by the Federal government takes away from the ability of the states to provide for the general welfare. Today, about 15% of what almost everyone makes is taken away in the form of Social Security taxes.²⁶ The law requires that you pay the tax, whether or not you ever withdraw from the fund; it is a tax and not an insurance policy; you do not have any rights to the benefits. There is no reason why the tax cannot be 50%.²⁷

Add to this a maximum Federal income tax of about 31%, almost half of one’s earnings is taken right off the top. Thus, the tax rate is confiscatory five times over, even before a state begins to lay any form of tax. The Federal government is taking such a large amount that the states cannot reasonably increase taxes.

If the states want to provide for adequate welfare, they find themselves in the position of having to accept federal funds on federal terms. This is equivalent to giving the power to regulate to the Federal government, a power forbidden by the Constitution. Economic power is superior to political power.

Since the nature of life is to grow, to have more and more, there will never be an end to the desires and needs of the people. Whatever your status or condition in life, you always want more.

The needs of the general welfare are thus insatiable, and an unlimited power to tax for the general welfare has the effect of imposing an involuntary servitude upon the producers of society, while removing the incentive to produce from the less productive. It gives the federal government the power to transfer money from those who have it, to the less fortunate or less able who don’t have it. It creates a conflict with our rights to liberty and the pursuit of happiness (and perhaps right to life), and there is no apparent way to prevent the Constitution from conflicting with itself.

These effects are contrary to the principles upon which our nation was founded, which is why I believe the court made a mistake in giving the Federal government this power.

Another case expanded the Federal government’s general welfare powers to spend money on anything it wanted, as long as it didn’t damage anyone directly:

[A taxpayer’s] interest in the moneys of the treasury--partly realized from taxation and partly from other sources--is shared with millions of others, is comparatively minute and indeterminable, and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity. [Massachusetts v. Mellon, 262 U.S. 447, 487]²⁸

This rule gives the government additional power not enumerated in the Constitution. The power can be stated as follows: ”Government may spend on anything it wants, as long as it does not cause an individual or state any direct damage that can be adjudicated in a court.”²⁹ If there is no damage done, there is no dispute to be adjudicated.³⁰

This power, granted by the court and not the people, goes far beyond the general welfare powers. It gives the government the power to give money to foreign countries (clearly not within the general welfare of the United States).³¹

Let us let our imagination run wild; is there any restriction to government’s power to spend? How about a trip to the moon?³² Would you say that the courts are interpreting the general welfare clause of the Constitution according to the intention of the Founding Fathers?:

”A power to lay taxes for the common defence and general welfare of the United States is not in common sense a general power. It is limited to those objects. It cannot constitutionally transcend them.” [Mr. Justice Story, Butler, supra, 66]

Monroe, an advocate of Hamilton’s doctrine, wrote: ”Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not.” [Butler, supra, 67]]

If the court did not want to be bothered with litigation, it should have gone to Congress for relief rather than skirt the issue by refusing to adjudicate cases. As it stands, no one has any standing to challenge the governments spending, and corresponding tax burden. A power that is unanswerable to anyone, is an unlimited power.³³ It also violates the principle of checks and balances, and may violate our First Amendment right to petition for redress of grievances.

When Madison and Hamilton were trying to sell the people on ratifying the Constitution, they published articles of how the Constitution worked, which today are known as the Federalist Papers.

The following is a condensation of what Madison said, in the Federalist # 41:

It has been urged and echoed that the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defence and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defence or general welfare. No stronger proof could be given of the distress under which these writers labour for objections, than their stooping to such a misconstruction. ...

But what colour can the objection have when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? ....

For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, ....

How difficult it is for error to escape its own condemnation.

We the people were told by Madison strongly and in no uncertain terms that the general welfare clause did not give the federal government additional powers. If Hamilton disagreed with Madison, he should have said so in these papers; he must have known what Madison had written. Thus, the courts and not the people gave the government the power of general welfare, and it was given in 1935 with the Butler case, about 145 years after the Constitution was ratified. Just the long span of time in applying Madison's view should have ratified it. This doubt about the correct construction of the general welfare clause should have been resolved in favor of the people retaining the power, as this is the way it was sold to the American people.

Also, Hamilton as Secretary of Treasury certainly must have had a personal bias in favor of taxing and spending.

GOVERNMENT POWERS DERIVED FROM CONTRACT

There is a theory in the rights movement that, if the government does not have the power to regulate you, it can acquire that power of regulation by entering into a contract with you, and that under such contract you can unwittingly waive your rights. I have objections to this theory.³⁴

We saw in a previous section³⁵ that the federal government has no power beyond those enumerated in the Constitution. When the power is enumerated in the Constitution, the Federal government doesn’t need a contract to regulate you. Absent the enumerated power, the question arises whether or not the government has the power to regulate you by contract.

While the Federal government can tax and spend for the general welfare, it cannot regulate. The closest it can come to regulating is to specify the conditions under which you will receive Federal money. These conditions are voluntary. If you want the money, you accept the conditions.

The Congress cannot buy regulation:

[I]f the plan [the Agricultural Adjustment Act] were one for purely voluntary cooperation it would stand no better so far as federal power is concerned. At best it is a scheme for purchasing with federal funds submission to federal regulation of a subject reserved to the states. [United States v. Butler, 297 U.S. 1, 72]

[A]ppropriations and expenditures under contracts for proper governmental purposes³⁶ cannot justify contracts which are not within federal power. ... The Congress cannot invade state jurisdiction to compel individual action; no more can it purchase such action. [Butler, supra, 73]

While the Federal government can specify conditions under statute, it cannot contract with you in order to regulate you if it does not have the power to regulate in the first place:

There is an obvious difference between a statute stating the conditions upon which moneys shall be expended and one effective only upon assumption of a contractual obligation to submit to a regulation which otherwise could not be enforced. [Butler, supra, 73]

An affirmance of the authority of Congress so to condition [by contract] the expenditure of an appropriation would tend to nullify all constitutional limitations upon legislative power. [Butler, supra, 74]

The United States can make the contract only if the federal power to tax and to appropriate reaches the subject matter of the contract. [Butler, supra, 74]³⁷

It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted. [Butler, supra, 68]

While the above citations were directed at the Federal government, the principles should apply to the states as well. A state cannot contract with you in order to regulate you, if it did not have the power to regulate in the first place.

Can the state require you to waive rights in order to assert a privilege? Yes it can, provided the state has the power to regulate in that area in the first place. For example, the state can let convicts out of jail early (i.e. on parole) upon certain conditions. If you want out early, you accept the conditions and sign the contract; otherwise, you serve the full term. The state had the power to take your right to freedom away from you, and thus can give it back if you accept the conditions. You can be forbidden rights that others possess, such as the right to possess a gun, leave the state, etc.

On the other extreme, can the state require you to waive rights in order to assert a right? No it can’t:

[W]e find it intolerable that one constitutional right should have to be surrendered in order to assert another. [Simmons v. U.S., 390 U.S. 377, 394 (1968)]³⁸

Thus, the state cannot take away your right to travel, and give it back to you on the condition of waiving a right.

Now let’s examine the area of commercial privileges. Can the state require you to waive rights in order to participate in commercial privileges such as bank accounts, corporate charters, negotiable instruments, etc?

I don’t think so. If the state had the power to require you to waive a right in order to participate in a state created privilege, it would tend to nullify all constitutional protections. The state might figure out a way to create a single privilege that could in time become almost essential to life. Then after everyone is dependent on it, the state could change the rules and require the waiver of many rights in order to assert the privilege.³⁹ As cited above:

It is an established principle that the attainment of a prohibited end may not be accomplished under the pretext of the exertion of powers which are granted. [Butler, supra, 68]

The constitution cannot conflict with itself. The state powers of regulation, which include the power to create corporate and commercial privileges, cannot violate other provisions of the constitution that protect ones rights. I think the issue turns on this question: Does the state have the power to do what it wants without the contract? If the state does not have the power, a contract cannot give it the power.

When you contract with the government, the government acts in the capacity of commercial trader; it is bound by any contract it enters into, just like any other corporation:

”When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto [for so much], and takes on the character of a trader. ...” It is thus a familiar concept that ”there is a constitutional line between the State as government and the State as trader. ...” [New York v. United States, 326 U.S. 572, 579 (1946)]⁴⁰

Government cannot claim sovereign immunity as the basis to back out of its contracts. There was a time when the states were sovereign and could not be sued for damages. But since government has entered into commerce, sovereign immunity has been replaced by limited liability (insurance):

There is nothing in the character of a municipal corporation which entitles it to an immunity from liability for such malfeasances as private corporations or individuals would be liable for in a civil action. A municipal corporation is liable to the same extent as an individual for any act done by the express authority of the corporation, or of a branch of its government, empowered to act for it upon the subject to which the particular act relates, and for any act which, after it has been done, has been lawfully ratified by the corporation. [Owen v. City of Independence, Missouri 445 U.S. 622, 640]

In later sections we will be discussing several licenses which appear to be contracts with the government,⁴¹ in which, it is claimed by some, the government regulates you beyond its Constitutional power to do so. If this is so, then government would be acting under ”color of law”; their acts appear to be lawful, but are in fact not. If you do not know what your rights are, if you do not know where government powers come from, then all you can do is submit.

If we the people are to defend our rights and the Constitution,⁴² we must know what these rights are so that we can object; failure to object in a timely manner is fatal -- you effectively waive your right.

GOVERNMENT POWERS EXPANDED UNDER THE COMMERCE CLAUSE

The case of Edwards v. California, 314 U.S. 160 (1941), questioned the legality of a statute barring destitute people from entering California. The court ruled that the statute was an unconstitutional barrier to interstate commerce:

The passage of persons from State to State constitutes interstate commerce, [citings deleted], whether they be moved by common carrier or otherwise. [Edwards, supra, 161]

Article I, Sec. 8 of the Constitution delegates to the Congress the authority to regulate interstate commerce. And it is settled beyond question that the transportation of persons is ”commerce,” within the meaning of that provision. [footnote:] It is immaterial whether or not the transportation is commercial in character. [Edwards, supra, 172]

Thus, just the act of crossing a state line makes you an article in commerce, and gives the federal government jurisdiction over you via the commerce clause.

Mr. Justice Douglas concurred on the decision of this case, but objected to the reasoning:

I am of the opinion that the right of persons to move freely from State to State occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines. [Edwards, supra, 177]

Mr. Justice Jackson also concurred on the decision, but stated his objection:

To hold that the measure of his rights is the commerce clause is likely to result eventually either in distorting the commercial law or in denaturing human rights. I turn, therefore, away from principles by which commerce is regulated to that clause of the Constitution by virtue of which Duncan is a citizen of the United States and which forbids any State to abridge his privileges or immunities as such. [Ed- wards, supra, 182]

In the case of Wickard v. Filburn, 317 U.S. 111 (1942), the Supreme Court held that the excess wheat production of a farmer that was used for personal use, could be fined because the farmer exceeded his quota of wheat production. The court reasoned that the government was trying to maintain wheat prices in interstate commerce by controlling supply; even though the farmers activity was local, its economic effects affected interstate commerce.

Whether or not the farmers production was intended for interstate or local consumption seems to be irrelevant. ”The intended disposition of the crop here involved has not been expressly stated.” [Wickard, supra, 114]. The court did not need to know where the crop was going in order to make it’s ruling.

Now get this: Since the farmer produced his own wheat for his own consumption, he did not have to buy it on the open market, and this reflected in the prices of the open market. Since Congress is trying to regulate these prices interstate, it has the right to regulate prices and production intrastate:

[I]f we assume that it [the wheat] is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. [Wickard, supra, 128]

Whatever your trade or occupation, whether you manufacture, sell, or grow something; if you place it on the market, you affect prices in your local community. If you consume it yourself, then you also affect prices because you are not purchasing it. If Congress wants to regulate prices interstate, it has the power under the ”economic” rule to regulate prices intrastate.

In my opinion the ”economic” rule of the Commerce Clause is in conflict with the 10th Amendment that secures the rights of the states. Since this rule brings virtually every activity under federal regulation, I do not think the federal government has the right to prevail.

This ”economic” rule of determining federal power is a departure from the earlier rule of ”direct” versus ”indirect”. Under the old rule, activities that were ”local” ”... could be regulated under the Commerce Clause only if by virtue of special circumstances their effects upon interstate commerce were ”direct, ... ”. [Wickard, supra, 120, footnote 16]. Federal powers are expanded again.⁴³

As time passes, it seems that decisions are made which have the effect of expanding federal power to the maximum possible extent, rather than attempting to harmonize the Constitution. This should not be too surprising, as members of the Supreme Court are appointed by the President and approved by the Senate,⁴⁴ who are not necessarily sympathetic to states rights or powers.

Before the passage of the 17th Amendment in 1913, members of the Senate were chosen by the legislature of each state: ”The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; ...” Thus, the states themselves were represented in the Congress.

With the passage of the 17th Amendment, the states lost their representation in Congress: ”The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; ... ”⁴⁵ Today the Senators have no particular interest in maintaining states rights as they now answer to the people. The Founding Fathers were pretty smart, weren’t they?

GOVERNMENT POWERS ANALYZED

Now that we know that the Federal government has no powers except those enumerated in the Constitution, let us extend our knowledge to various areas of interest. After seeing how the government gains its power in these areas, you should be able to figure out for yourself where the government gets its power in other areas.⁴⁶

When the Federal government has enumerated power in an area, that power is superior to the states powers, and a state may not infringe upon that power.⁴⁷ However, if Congress has chosen not to regulate in a particular area, the state may regulate in that area.
 

ABORTION

Roe v. Wade, 314 F. Supp. 1217, (1970) is a leading case on the subject of abortion. It stated that the fundamental right of single women and married persons to choose whether or not to have children is protected by the 9th Amendment,⁴⁸ via the 14th Amendment.

The Federal Constitution and the Bill of Rights are binding upon the federal government, not the states, unless otherwise stated. It was intended to limit the federal governments power. However, the Court has construed the 14th Amendment to secure certain fundamental rights that no state can abridge.⁴⁹

Roe, supra, 1225, applies the concept that any fundamental right secured by the Federal Constitution is binding upon the states via the 14th Amendment. These include rights not enumerated, but secured by the 9th Amendment.⁵⁰

Freedom to choose in the matter of abortions has been accorded the status of a ”fundamental” right in every case coming to the attention of this Court where the question has been raised. [Roe, supra, 1222; many citations deleted]

[T]here is a certain zone of individual privacy which is protected by the Constitution. Unless the State has a compelling subordinating interest that outweighs the individual rights of human beings, it may not interfere with a person’s marriage, home, children and day-to-day living habits. This is one of the most fundamental concepts that the Founding Fathers had in mind when they drafted the Constitution. [Roe, supra, 1222 (1970)]⁵¹

According to Roe v. Wade, 93 S. Ct. 705, 729, a fetus is not a person as defined under the 14th Amendment, and therefore is not a citizen of the United States and does not fall under its protection:

All this, together with our observation, ... , that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today, persuades us that the word ”person,” as used in the Fourteenth Amendment, does not include the unborn.⁵²

Thus, a fetus has no more status than a citizen of Russia. If your friend in Russia is being abused, you cannot appeal to the U.S. government for protection; the same applies to a fetus as the federal government has no jurisdiction over either. Without jurisdiction, the federal government cannot pass any legislation on the subject.
 

GUN CONTROL

The common law⁵³ did not recognize any absolute right to keep and bear arms. The 2nd Amendment⁵⁴ prohibits Congress from abridging our right to bear arms, but this is a prohibition upon Congress, and is not applicable upon the states (they are separate governments). Furthermore, it is said that the purpose of the 2nd Amendment was to protect the rights of the states to maintain their own militia against encroachments by the federal power, and the 2nd Amendment right to bear arms does not apply to individual citizens. Thus, state and municipal regulation of arms does not offend the 2nd Amendment.⁵⁵

Nothing in the body of the Constitution mentions any power of government to pass legislation upon one’s right to keep or bear arms. Since ours is a government of enumerated powers, the government has no power to pass legislation in this area because it is not so stated.

So where does the government get its power to ban or require registration of weapons? A clue to the source of this power might be found in the following newspaper article:

[Name deleted] could be charged in federal court in Kansas City with possession of a machine gun, a mortar and various explosives that were not registered with the U.S. Treasury Department. He also could be charged with being a felon in possession of weapons and explosives. [Fairfield Ledger, Iowa, Sept. 17, 1991, p. 10.]⁵⁶

The Treasury Bureau of Alcohol, Tobacco, and Firearms is the regulating authority, and the clue we are looking for is Treasury, indicating the power in this case derives from the taxing clause. The Federal government regulates weapons under several clauses: the commerce clause, the taxing clause, and the post office clause of Article 1 Section 8.⁵⁷ The Gun Control Act of 1968 is based on the commerce clause, while the National Firearms Act is based on the taxing clause.

The Gun Control Act of 1968 declares it illegal to receive, possess, or transport firearms in interstate commerce by any person that has been convicted of a felony,⁵⁸ been dishonorably discharged from the armed forces, is adjudged mentally incompetent by a court, has renounced his U.S. citizenship, or is an illegal alien.

It also requires licensing of importers, manufacturers, and dealers of firearms and ammunition, and declares it unlawful for unlicensed persons to ship, transport, or receive any firearm or ammunition in interstate or foreign commerce. And licensed persons cannot ship or transport in interstate commerce, to any other than licensed persons, with specified exceptions. Unlicensed persons are prohibited from importing to or exporting from the state of one’s residence, firearms, with stated exceptions.⁵⁹

If you send a weapon via the post office, it is of course regulated under the post office clause. A common carrier (UPS, etc.) that ships interstate is regulated under the commerce clause; a common carrier that ships strictly intrastate would be, in my opinion, free of federal regulation under the commerce clause.

If you buy a weapon using commercial instruments regulated by the federal government, it could be argued that this comes under commercial regulation. This might include checks issued by a federally chartered bank, or by a state bank chartered outside your state, or by the use of Federal Reserve notes.⁶⁰

A federal statute prohibits the carrying on or about a person a concealed deadly or dangerous weapon (including an empty pistol) aboard a commercial aircraft, or attempt to board the aircraft. This law was meant to prevent the hijacking of commercial airliners. Of course, it is based on the commerce clause.

The National Firearms Act⁶¹ established a National Firearms Registration and Transfer Record. The courts have held that the Act imposes an excise tax⁶² based on the taxing clause, and have upheld it against the claim that it usurps the police powers reserved to the states by the 10th Amendment.

In my opinion, if this information is used for the purposes of regulation instead of taxation, then it is unconstitutional. Government is prohibited from doing indirectly, what it hasn’t the power to do directly. The Act was designed so that there are built-in restrictions to the use of the information required under the Act which will satisfy the 5th Amendment protection against self-incrimination.⁶³

I have heard talk on television that Congress is considering banning assault rifles; of course, Congress does not have this power. I suspect that Congress could try to pass an excise tax under the taxing clause that would make the manufacture, purchase, or sale of such guns prohibitive.

I believe that such a tax would be unconstitutional. The purpose of a tax is to provide for government revenue. A tax that was so high that no sale was made and no tax was paid, would not provide any government revenue and would be regulatory in its nature by banning the taxed object. It amounts to the destruction of a right, usurpation of the power of the state to regulate in violation of the 10th Amendment, and the execution of a power not enumerated and therefore prohibited.

The court has said:

”[R]esort to the taxing power to effectuate an end which is not legitimate, not within the scope of the Constitution, is obviously inadmissible.” [United States v. Butler, 297 U.S. 1, 69]

That the taxing power can be used to regulate a non-enumerated area, shows the abuse capable under the power. The government knows where every weapon is and who owns it just because it has the power to tax. This is, in my opinion, a violation of the 4th Amendment right to be secure in our persons, houses, papers and effects. To prevent the Constitution from conflicting with itself, the government should have been limited in its power to obtain information of gun enthusiasts.

Depending on constitutional provisions, a state may regulate the possession of firearms under the police powers. Even in states where the right to bear arms is guaranteed, the state may regulate the means of bearing the arms under the police powers in order to maintain the safety of the public.

The state may prohibit or regulate the carrying of weapons, concealed weapons, loaded or unloaded, or particular types of weapons (e.g., machine guns), and can prohibit their firing in public places. The power to regulate includes the power to license. Depending on statute, ”carrying” can include having the weapon in your luggage or glove box, not on your person.

The test for concealment is whether the weapon as carried can be discernible by ordinary observation;⁶⁴ concealment under the coat or shirt, within a briefcase or handbag, is concealment. Partial concealment may be concealment under a statute. Ready availability of a weapon in an automobile can constitute concealment of a weapon on or about your person.⁶⁵

Statutes prohibiting the carrying of concealed weapons often contain exceptions allowing you to carry a weapon upon your own premises that you have exclusive possession and control over.⁶⁶

A deadly weapon requires the highest degree of care, and a person is generally liable for all damages inflicted unintentionally or accidentally.⁶⁷

If you own a weapon, be sure to read the statutes of your state so you know what is legal.⁶⁸

Lets look at 27 CFR Ch. 1 (4-1-91 Edition), Treasury Bureau of Alcohol, Tobacco and Firearms, Part 179--Machine Guns, Destructive Devices, and Certain Other Firearms. Remember as you read that this comes under the taxing clause; it is not regulatory in its nature since this is not enumerated in the Constitution, and is therefore prohibited.

Since it is an excise tax, just pretend that the same excise and rules of collection can be placed upon your building a piece of furniture or any other commodity, for there can be no difference between a machine gun and a piece of furniture, with respect to the Federal government’s power to tax.

Subpart E--Tax on Making Firearms

Sec. 179.61 Rate of tax

Except as provided in this subpart, there shall be levied, collected, and paid upon the making of a firearm a tax at the rate of $200 for each firearm made. This tax shall be paid by the person making the firearm. Payment of the tax on the making of a firearm shall be represented by a $200 adhesive stamp ...

Sec. 179.62 Application to make.

No person shall make a firearm unless the person has filed with the Director a written application on Form 1 (Firearms), Application to Make and Register a Firearm, in duplicate, executed under the penalties of perjury, to make and register the firearm and has received the approval of the Director to make the firearm which approval shall effectuate registration of the weapon to the applicant.⁶⁹ The application shall identify the firearm to be made by serial number, type, model, caliber or gauge, length of barrel, other marks of identification, and the name and address of the original manufacturer ... .

Sec. 179.63 Identification of applicant.

If the applicant is an individual, the applicant shall securely attach to each copy of the Form 1 (Firearms), in the space provided on the form, a photograph ... . The applicant shall attach two properly completed FBI Forms FD-358 (Fingerprint Card) to the application. ... A certificate of the local chief of police, ... or such other person whose certificate may in a particular case be acceptable to the Director, shall be completed on each copy of the Form 1 (Firearms). The certificate shall state that the certifying official is satisfied that the fingerprints and photograph ... are those of the applicant and that the certifying official has no information indicating that possession of the firearm by the maker would be in violation of State or local law or that the maker will use the firearm for other than lawful purposes. [Emphasis added]

Isn’t it interesting that you have to get a state authority, not a Federal authority to sign the form? The Federal government knows it cannot regulate firearms, so they require you to submit your application to state authorities who do have the power to regulate.

The emphasized line is clearly regulatory in nature, not related to the taxing power.

Suppose the Federal government wanted the fingerprints of every citizen in the U.S.; couldn’t it place an excise tax upon every commodity, and require fingerprints before you bought or manufactured anything? I don’t think so, otherwise the Constitution would conflict with itself; the valid power to tax would conflict with rights to property and privacy.⁷⁰
 

Sec 179.64 Procedure for approval of application. The maker of the firearm shall not, under any circumstances, make the firearm until the application, ... has been approved and returned by the Director ... .

I do not believe that you cannot build a piece of furniture without the federal governments permission. I am not raising the issue about whether machine guns should be regulated or not; this can and should be done by the state. I am raising the issue of misuse of government powers. We the people have the job of securing our rights; it cannot be left to government, as government is the entity likely to take our rights from us. Our country is said to be a free country because there are certain rights, unalienable and otherwise, secured by the constitution, and by the fact that the federal government has no power to act in certain areas. In my opinion, these statutes are regulatory in their nature, and therefore void.⁷¹

BUILDING PERMITS

Building permits come under the police powers of the state to regulate the health and safety of the people.

For example, if improper electrical wiring is used a fire could damage your neighbors house. Improperly installed sewers, septic systems, or wells, can damage the common water supply or environment, etc. Zoning is a valid exercise of the police powers to keep nuisances in their proper place.

The fee for a regulatory permit may be used to defray the costs of regulating the enterprise, and it may be used as a tax as well.

[I]f the primary purpose of a statute or ordinance exacting an imposition of some kind is to raise revenue, it represents an exercise of the taxing power, while if the primary purpose of such an enactment is the regulation of some particular occupation, calling, or activity, it is an exercise of the police power, even if it incidentally produces revenue. [16A Am Jur 2d Constitutional Law, Sec. 366]

The federal government could if it desired, place an excise tax upon the privilege of constructing a building, and issue a permit upon payment of the tax (just as with gun control). Such permit could not be regulatory in its nature, as the power to regulate construction is not enumerated in the Constitution, and the Federal government is prohibited by the 10th Amendment from interfering with activities reserved to the states. The Federal government could also regulate under the commerce clause, but only those builders who affected interstate commerce would be liable to such regulation.
 

THE FEDERAL COMMUNICATIONS COMMISSION

When the Constitution was passed, radio and television did not exist, and the power to regulate them is not enumerated in the Constitution and was not granted to the Federal government.⁷²

The Federal government’s power to regulate radio and television comes from the commerce clause.⁷³ The federal government can only regulate stations that affect interstate commerce; any station that is strictly intrastate could not be regulated by the Federal government.

As a practical matter, we will see why just a