Congress has been able to pass legislation that breaches their Constitutional contract.

 

See ABA Task Force on Federalization of Criminal Law, Report, (1998) (reprinted in 11 Fed. Senten. Rptr. 194 (1999)) (“The Task Force concluded that the evidence demonstrated a recent dramatic increase in the number and variety of federal crimes. Although it may be impossible to determine exactly how many federal crimes could be prosecuted today, it is clear that of all federal crimes enacted since 1865, over forty percent have been created since 1970 . . . . [M]uch of the recent increase in federal criminal legislation significantly overlaps crimes traditionally prosecuted by the states.”).

 

See also Gibbons v. Ogden, 9 Wheat., at 195 ("The enumeration presupposes something not enumerated"). The Constitution mandates this uncertainty by withholding from Congress a plenary police power that would authorize enactment of every type of legislation. See U.S. Const., Art. I, 8. Congress has operated within this framework of legal uncertainty ever since this Court determined that it was the judiciary's duty "to say what the law is." Marbury v. Madison, 1 Cranch. 137, 177 (1803) (Marshall, C. J.). Any possible benefit from eliminating this "legal uncertainty" would be at the expense of the Constitution's system of enumerated powers.

 


 

 

 

 

 

 

 

 

 

 

 

 

"ONLY ONE TRIBUNAL EVER ADOPTED A PRACTICE OF FORCING COUNSEL UPON AN UNWILLING DEFENDANT IN A CRIMINAL PROCEEDING. THE TRIBUNAL WAS THE STAR CHAMBER." U.S. v FARETTA , 422 US 806 (1975)

OUTSIDE IT'S AMERICA.

WHAT WOULD BE THE CAPACITY OF LAW ENFORCEMENT AND OF THE COURTS TO SUPRESS THIS KIND OF SPEECH?" --Judge A. Howard Matz, PRE-TRIAL OF KILLERCOP

THE COMMERCE CLAUSE

by Richard Knutson


Regarding the article, "Who Should Decide Whether Nuclear Reactors Are Safe?" by Richard Webb.

Webb's inquiry as to who has authority to determine the safety of nuclear reactors touches on the fundamental question of how Congress has been able to pass legislation that breaches the Constitutional contract.

Webb posits that authority over nuclear safety is more a local question and suggests it should at most be a State matter rather than a Federal one. He contends that Congress has no authority through the "welfare clause" of the "commerce clause". His argument against the "welfare clause" is substantitive but it is immaterial to the question at hand.

Congress does use the "commerce clause", but not in the way Webb interprets it. Webb contrasts "commerce and "manufacture" and contends that nuclear energy is manufactured. He then cites judicial cases which addesss the difference and points to questions which center on constitutional interpretation. This, however, is not the real crux of the matter.

Through Article 1, Section 8 of the constitution, Congress was given unlimited control over commerce. Any activity that falls within the realm of commerce can be regulated in any way the Congress sees fit. A corporation, by definition, is "An artificial person or legal entity created by or under the authority of the laws of the state." It is an "artificial person" created for the express purpose for conducting business in commerce. A corporation is formed by those who want to achieve limited liability while they seek profit and gain in commercial activity. Limited liability is a privilege that can only be extended by the state. Because a corporation is a creatuere of the state, it can be regulated in any way its creator deems necessry.

The point as to whether the nuclear industry is engaged in manufacture or commerce is immaterial. The fact that the companies ofthe nuclear industry are incorporated is how the Congress gains power and control over them through the commerce clause. Whether this is a good thing or a badthing is another matter. It is a fact, albeit one that was not always so in this country, but was estabished step by step. The practice of insorporation is so complete that not only are most all industries incorporated but the States as well.

As to Webb's final poiint regarding "extremely profound implications". As he implies, it is here that one's concern truly should be. Webb considers the constitutional issues he has raised to be of significance. However, he fails to see there is no question to as what Congress can or cannot do according to the Constitution. His concern over the limitation of Congress' powers is well founded, yet his search for said limitations is not to be found in the categorical intepretation of the contract.

The terms and conditions of the Constitution were intended to be the limitations sufficient and necessary to prevent the United States from becoming a tyrannical central power among the several States. As it turns out, the limitations were insufficient as the Founders did not anticipate the advent of the corporation.

That, in brief, summarizes the answer to Webb's inquiry as to where Congress gets its authority. It leaves out the particulars and doesn't address come of the broader issues which have contributed to political and economic plight of our country. But the "extremely profound implications" are worth pursuing. To further understand how thistyranny has gradually engulfed us, we have to trace the development of the political and economic power over the last hundred years.

Given that business and industry are under the thumb of Congress, one may then wonder how Congress has been able to exercise more and more influence over every individual's activities.

The current vogue is to make the Feds a first string player in a grand conspiracy to enslave the population. This is a convincing perspective, and to a certain degree true. However, most overlook the key mechanism that makes it possible and, at the same time, makes it appear as if the population is in the process of being enslaved. The mechanism is in the desires of the people and the Fed's effort to respond to them. The message the people are giving to the "conspirators" is "We need to be protected from ourselves." Along with it comes "We want to be secure in our possessions and liberty." This presents the government with a paradox. On one hand they are constrained by the Constitution to respect the individual's freedoms (life, liberty, and the pursuit of happiness) while on the other they are being pressed to be in a position of protector and intermediary.

The sense of personal security is a problem every individual faces that can only be solved by the individual. If someone else is to be responsible for one's feeling secure, that someone will, at some time, have to make provision for being able to act in the stead of the insecure individual. It is no different for the government. If it is going to be responsible for the sense of security of the peope in their day to day affairs, it must be able to exercise it's authority down into the day to day affairs of each and every person. The problem is that the Republican form of government doesn't lend itself to such a task. It assumes the individual will be responsible and capable in the conduct of daily life. It is only prepared for the exception and relies on consciencous, responsible people ready to step forward as witnesses and jurors to take care of the rare errant individual. The Republican form of government is slow moving and relies on trust among the constituency for it's effectiveness. People are expected to protect themselves. That's why they have the right to bear arms. A God fearing man is not going to shoot his neighbor for sport. Nor is he going to take his neighbor's cow or the fruit of his neighbor's labor. The Republican form of government is geared to make and enforce laws that the people will follow out of their own moral uprightness. It is intended to protect the rights of the individual, but not the individual. If the majority of the people want personal protection, then the government has the not so glorious task of being a protector of people instead of the protector of the rights of people. Sure, it still makes and enforces law, but the nature of the laws it makes and enforces is different than would be when it protects rights instead of people. "Rights" laws are general in character and prodigious in number.

As a Republic is not responsive to the people's desire for personal security, a legislative democracy (which responds more readily to the majority) is more practical. But, the legislative democracy is only operative in the political sphere. There needs to be a common ground in which people and politics interact. This is the economic sphere. By being able to set and enforce economic policy, the government has both the ball and the field upon which the protection game is played. All that remains is to make everyone a player and then make sure they all follow the rules.

The ball is money and the field is commerce. Once the government has control of the ball, it then has but to get everyone on the field. That is, everyone must use government money and be engaged in commerce. Commerce is an economic activity that is governed by civil law. Civil law is a body of law that developed out of Roman law. Civil law lends itself to enforcing policy set by a central power. By way of contrast, trade is the counterpart of commerce and common law is the counterpart of civil law. Although this is a bit of an over simplification, it will get one by for the purposes of this inquiry. The difference between trade and commerce, like the differences between common law and civil law, are nominal with regard to appearances. In both trade and commerce, one exchanges something for goods and services. But, in commerce, one is a player while, in trade, one is not. Since all need to be players if the government is going to be in the protection game, it was practical that the distinction be allowed to be obscurred.

In order to keep the players on the field, there needed to be a contract. The right to contract is a natural right that is protected by the government, in so far as it protects the natural rights of the people. Unlike a civil right, the government cannot enforce the right to contract. It cannot require an individual to enter into or break a contract. But, it can enforce one's right to do so. As all contracts are equal before law, in so far as they are contracts, any contract an individual makes is on par with the Constitution. Thus, if one makes a contract that waives rights protected by the Constituion, they have no recourse to protection from the Constitution. Thus, if one wants to play in the protection game, one must enter into a commercial contract and set aside the Constitutional contract.

Every individual who participates in the Social Security system has declared (unknowingly) that they are engaged in commerce. The signed application for a Social Security account is evidence of the contract between an individual and government. One's birth certificate is the foundation document for said application. Few people realize the implications of this. The terms and conditions of this contract are well publicized: they are the Statutes At Large of Congress. These statutes only apply to political or economic entities under the jurisdiction of the Federal government. Federal statutes may or may not apply to individuals. In order for them to apply, the individual must establish a political or economic connection with the Federal government. In exchange for receiving (or at least being able to receive) the benefits of government, i.e., welfare, unemployment benefits, social security, etc., one agrees to obey the statutes of Congress. By participating in these programs, one is acting in a corporate capacity in commerce. And since Congress has unlimited powers over corporate activity in commerce, they can do anything they wish to control it.

To traverse the labyrinth of how this has come to pass requires a large ball of Ariadne's thread. First, one must bear in mind that the Constitution is a two-party contract between the States as a collective and the Federal government. Geographically, the Federal government is seated in the District of Columbia. The District of Columbia is a separate state that is unique from the States of the Union as it is vested, according to the terms and conditions of the Constitution, with limited sovereign powers that are not enjoyed by any of the States of the Union. These powers were deemed necessary in order to have a central power which could protect the States from international interference and to conduct national affairs without convening the States on each point of national policy. These same tterms and conditions were also intended to limit this central power so that it could not gain supremacy over any one or all of the States of the Union. This functioned according to intent until after the 17th Amendment. At that time when Senators were no longer appointed by the States the Republic became a legislative Democarcy. As time went on the powers of Congress broadened to the extent that the States ability to represent their interests as independent sovereign powers became nominal. What was 48 united sovereign States and a Federal state representign the States independent and common interests and the peoples common interests became a Federal state representing the people of 48 nominal states. Thus, the States that were to protect the individual from the United States (the Feds) became partners with the Feds.

To see how the individual has gained Federal representation without the intermiate agency of the State, is revealed in the changes in the State constitutions. One of the most visible changes is the qualifications of Electors (voters). From the aftermath of the Civil War until the 17th Amendment, voter qualification changed from a white freeman to a "citizen of the United States" in nearly all the State constitutions. This may not seem of consequence, but the qualifications for the right of sufferage reveals the legislative body who is representing them. If we look at the changes in the Pennsylvania State constitution, for instance, we find there have been several constitutional conventions since the original constitution of 1776.

The original voter qualifications in 1776 were:

Section the Sixth: "Every freeman of the full age of twenty-one years, having resided in the state for the space of one whole year next before the day of election for representatives, and paid public taxes during that time, shall enjoy the right of an elector: Provided, always, that sons of freeholders of the age of twenty-one years shall be [i]ntitled to vote although they have not paid taxes."

In 1790, they became:

Article III, Section 1: "In elections by the citizens, every freeman of the age of twenty-one years, having resided in the State two years next before the election, and within that time paid a State or county tax, which shall have been assessed at least six months before the election, shall enjoy the rights of an elector: Provided, That the sons of persons qualified as aforesaid, between the ages of twenty-one and twenty-two years, shall be entitled to vote, although they shall not have paid taxes."

And in 1838, they became:

Article III, Section 1: "In elections by the citizens, every white freeman of the age of twenty-one years, but a citizen of the United States, who had previously been a qualified voter of this State and removed therefrom and returned, and who shall have resided in the election-district and paid taxes as aforesaid, shall be entitled to vote after residing in the State six months: Provided; That white freemen, citizens of the United States, between the ages of twenty-one and twenty-two years, and having resided in the State one year and in the election-district ten days as aforesaid, shall be entitled to vote although they shall have not paid taxes."

However, if we look in the constitution of 1874, we find:

Article VIII, Section 1: "Every citizen twenty-one years of age possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.


1. He or she shall have been a citizen of the United States at least one month.
2. He or she shall have resided in the State one year (or, having previously been a qualified elector or native born citizen of the State, he or she shall have removed thereform and returned, then six months) immediately preceding the elections."

And, finally, if we look at the constitution of 1968, we find:

Article VII, Section 1: "Every citizen 21 years of age possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact.


1. He or she shall have been a citizen of the United States at least one month.
2. He or she shall have resided in the State 90 days immediately preceding the election."

(Notice the above laws make clear reference to both, individually, the State (of Pennsylvania) and the United States being the Federally organized national government.)

There is more of a story here than is going to be commented on. For now we want to notice in 1838 the "citizen of the United States" was someone who could vote in Pennsylvania and not be a Pennsylvania Citizen. This apparently curious circumstance is clarified when it is realized that a "citizen of the United States" was one who resided in the District of Columbia. At that time, State Citizenship was the focus. National citizenship was a secondary consideration, if it was considered at all. There was no defined national citizen. The "Citizen" referred to in the Constitution of the United States was a State Citizen.

 

The term "United States" applied to the District of Columbia as its function was that of representing the whole. It wasn't until the 14th Amendment that the term "citizen of the United States" was defined. It then became necessary to distinquish between the "citizen of the United States" who lived in one of the States of the Union and the one who lived in the District of Columbia. The need to make the distinction was not forthcoming, as it turns out because there was a multitude of new "citizens of the United States" living in nearly every State of the Union due to the 13th and 14th Amendments. Furthermore, all of theState Citizens became candidates for "citizens of the United States" by virtue of the same legislation. There is still great debate in some quarters about the difference between a "Citizen" and the "citizen of the United States". It is not without foundation. However, few recognize there is no longer a State citizenship of the quality to be found before the 17th Amendment. If a Citizen is such by virtue of his citizenship in a State which has no representation in Congress, how can he be a Citizen? The status may still be there, but access to it is well nigh impossible.

The change in voter qualifications is the most visible indicator to show how we all have become Federal citizens. National Citizenship was once incidental. It was a logical extension of being a State Citizen in a union of sovereign states that were united to form a single nation. State Citizenship became an endangered species with the advent of the "citizen of the United Staes" and is now virtually exctinct. So, what has this to do with the authroity of Congress? Prior to the 17th Amendment, a Citizen was not within the jurisdiction of the United States (the Federal government, i.e., Congress) by virtue of citizenship in their State. But, by becoming a "citizen of the United States" one could become a subject of the Federal government. I call this the political "avenue of access" to the individual. Being a "citizen of the United States" means one could be approached directly by Congress without Congress having to go through the State. This was one of the very things the States were originally trying to prevent when the contract with the Federal state (the Constitution) was written.

To see how Federal access to the individual was accomplished economically, one has to look at the contract. It is in the "commerce clause" that we find the avenue of access. The political access, as we have seen from the above, was subtle. The economic access is even more so. As we all know, the activity of commerce is wrought with corporations. Corporations are commercial entities created by a political entity (the state). Political entities are created out of the activity of men. As political entities, both the Federal state and the several States have the power to create corporations. The several States are incorporated. They are the corporate creations of the Federal state. The Fedeal state got its power in Article I, Section 8, Clause 3 (the Commerce Clause). This power was granted to them by the several States on the behalf of the collective sovereignty of the people. Thus, the Federal state, a political entity, gained access to total economic power over the several States. All corporations created by the States are also under the power of the Federal state. An individual who is in any way associated with a corporation is under the same power. It may be either direct or indirect. If one is an officer, partner or board member of a corporation, it is direct. If one is an employee or contractor, it is indirect. That is the economic "avenue of access" of the Federal state to the individual living in one of the several States.

The political and economic "avenues of access" are linked together in the Federal income tax program and the Federal Insurance Contributions Act program. The details of this connection would take us too far from the context we have been following were we to elaborate on it. However, the binding cord of these programs is the use of the "paper of account" of the Federal state. This paper is in the form of a dollar. It is called a "Federal Reserve Note". This note is offered as a privilege of being a "citizen of the United States". It serves the same function as the dollar it displaces but it lacks substance. It is a note on the credit of the Federal government of the United States. With it one may buy anything they normally would with a real dollar. Only they don't have to pay for it. The debt accumulated by the use of these notes will be born by all until such time the Federal government will settle it's account with it's creditors. These "dollars" are tickets to ride on the titanic ship of state that will carry it's passengers on a record breaking voyage across the sea of uncertainty.

The crucial issue is where do "we the people" seek our protection and maintain our faith. This nation owes it's origin to the individual's quest for a political community where one could establish "life, liberty and the pursuit of happiness" with "justice for all" under God. It was never inteded for the state to be between the individual and God. We had, and still do have, the choice, as freemen and creatures of God, to reside (seek protection and have faith) with the State or with God. We have taken the protection of God to be a given and choose to also be protected by the State.

The separation of church and state is an established doctrine that intends to eliminate either from interfering with the affairs of the other. The state is prohibited from interfering with the individuals' practice of religion. The church is prohibited from interfering with the affairs of state. History is repleat with the transgressions by both sides. The state cannot be justifiably condemned as its actions are in response to its creator, the collective of individuals, who contracted it into existence. The fault lies with the people. Whether they elect to appoint a king or establish a government to protect them, they are opting for the displacement of the protection offered by God. God offered his protection with a covenant between Himself and all the people of the planet. Although He used the term Israel (which means "those of God"), He was not excluding anyone. If there was any question of His intention, it was settled with the establishment of the New Covenant. The Bible is the documented evidence of His covenant. It is a contract. A contract everyone enters into when they are born. It states explicitly in its terms and conditions that no other contract shall be made that place any other being or beings between the individual and Himself. That includes making a contract with a state for the purpose of granting the power of personal protection. The state has no power over nature. It cannot legislate the weather, nor can it outlaw earthquakes. It's power of protection is limited to the political and economic affairs of men. It has not power to reduce or extend the unalienable rights granted by God. It can only offer civil rights in their place. The right to contract is unalienable. The state can recognize that right but cannot enforce it. When an individual enters into a contract with the state, he leaves the realm of unalienable rights and enters the realm of civil rights. He is no longer an individual only under God, bu also a person under government. The government of this country was intended to be a servent not a guardian. The choice in this country is still with the individual. He can he a ward of Congress or a child (ward) of God. Whether Congress has sought guardianship or has had it pressed upon it by the desires of the people is a question every individual will have to settle for himself. Either way, he can elect to reinstate his relation to God if he so chooses. The only thing that stands in his way is his contract with Congress. Whether he breaches it or rescinds it is his choice. Either way, he is in breach of his contract with God until he does.

We are a nation of wealth. Wealth that has been derived from the bounty of God. We have mortgaged that wealth to powers of our own making in a quest for security in a world ruled by unseen powers that are appointed by God to bring us into an awareness of wisdom. Out of that awareness He would have us unite ourselves with the Love He gave the world in the person of His "only begotten Son".

The wealth is still with us, the Prodigal son, we need only to recognize the source of that wealth and acknowledge the contract that prescribes the terms and conditions by which that wealth will be made over to us. It is a choice to be made in freedom; voluntarily, knowingly and intentionally. However, we can also choose tthe wealth being offered by the state.

"That which seems to be wealth may in verity be only the gilded index of a far-reaching ruin; a wrecker's handful of coin gleaned from a beach to which he beguiled an argosy; a campfollwers' bundle of rags unwrapped from the breasts of goodly soldiers dead; the purchase-peices of potter's fields, wherein shall be buried together the citizen and the stranger."
John Ruskin, Unto this Last, 1862.

 

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