slot online จ่ายจริง มากมาย_เล่นสดได้เงินจริง_เกมส์ยิงปลาออนไลน์_โปร คา สิ โน_w88okเครดิต ฟรี ล่าสุด Sun, 11 Nov 2018 06:59:10 +0000 en-US hourly 1 John Bingham Fourteenth Amendment Quotes Tue, 26 Jan 2016 04:59:25 +0000 I want to mark John A. Bingham¡¯s belated January 21 birthday with some of his most significant quotes from 1866 thru 1875 I have come across over the years from such sources as Congressional Globe, House Reports, public speeches and letters. Some will be an eye opener since they are so contrary to what scholars and courts improperly attribute to him in terms of constitutional changes in late 20th century.

    “The words ‘citizens of the United States,’ and ‘citizens of the States,’ as employed in the fourteenth amendment, did not change or modify the relations of citizens of the State and nation as they existed under the original Constitution.”

    “This guarantee is of the privileges and immunities of citizens of the United States in, not of, the several States.”

    ¡°That all citizens shall be forever equal, subject to like penalties for like crimes and no other.¡±

    “I ask that South Carolina, and that Ohio as well, shall be bound to respect the rights of the humblest citizen of the remotest State of the Republic when he may hereafter come within her jurisdiction.”

    “It is to secure to the citizens of each State all the privileges and immunities of citizens of the United States in the several States. If the State laws do not interfere, those immunities follow under the Constitution.”

    “The clause of the fourteenth amendment, ‘no State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,’ does not, in the opinion of the committee, refer to privileges and immunities of citizens of the United States other than those privileges and immunities embraced in the original text of the Constitution, article four, section two.”

    “It had been judicially determined that the first eight articles of amendment of the Constitution were not limitations on the power of the States, and it was apprehended that the same might be held of the provision of the second section, fourth article.”

    “That provision, gentlemen will remember, was a limitation imposed upon the State of Missouri in the very words of the Constitution itself, to wit: that its constitution never should be so construed, and never should be so enforced as to deprive any citizen of the United States of the rights and privileges of a citizen of the United States within the limits of that State. The fourteenth article of the amendments of the Constitution secures this power to the Congress of the United States.”

    “The Magna Charta ‘gave the protection of the laws only to freemen’ while the Fifth Amendment used ‘more comprehensive words, no person shall be deprived of life, liberty or property without due process of law,’ and thus, ‘the people by their Constitution declared the equality of all men, and by the express limitation forbade the Government of the United States from making any discrimination.'”

    “Surely the gentleman (Farnsworth) then supposed the words ‘equal protection of the laws’ were more than a glittering generality; that they were to be enforced to the extent of securing all guarantees of life, liberty, and property as provided by the supreme law of the land, the Constitution of the United States.”

    ¡°Some gentleman still ask what due process of law is, unaware of the centuries old meaning of protection against arbitrary abuse in the taking of life, confinement and confiscation.¡±

    ¡°As gentlemen well know, we are limited to matters of migration of aliens to territories belonging only to the United States as the States never surrendered their sovereign power over alien migration within their own limits.¡±

    “I know of no power lodged in the central government to interfere in the domestic affairs of these States or their laws in absence of some positive organic act of a State that places one class of persons at an disadvantageous over another in the protection of life, liberty or property before their courts of justice for an offence made a crime. The fourteenth of amendments most certainly does not confer this power.”

    “Nothing is more vital to the people¡¯s liberty and freedom than that immortal amendment that reads ‘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.’ I shall declare again the recent (14th and 15th) amendments made no change in this respect.”

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Gonzalez v. Arizona Rests upon a False Premise Mon, 14 May 2012 10:38:52 +0000 The recent Ninth Circuit en banc decision in Gonzalez v. Arizona illustrates current erroneous understanding of the Elections Clause under Section 4 of Article I. At issue in this case was Arizona¡¯s Proposition 200 that required prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote in both State and Federal elections, along with the requirement of registered voters to show identification to cast a ballot. Additionally, Proposition 200 required the County Recorder to ¡°reject any application for registration that is not accompanied by satisfactory evidence of United States citizenship.¡±

The court held Arizona¡¯s Proposition 200 was preempted by the Federal National Voter Registration Act of 1993 (NVRA) because the NVRA provides that ¡°[e]ach State shall accept and use¡± the Federal Form ¡°for the registration of voters in elections for Federal office.¡± The court saw Proposition 200 creating a conflict with the NVRA because Arizona could reject the use of the Federal Form to register to vote in Federal elections due to insufficient proof of citizenship.

Arizona¡¯s Proposition 200 raises no constitutional issues or is in conflict with any valid federal law for the simple reason the National Voter Registration Act of 1993 is void due to the lack of any authority to impose voter registration standards upon the States for Federal elections.

The court makes a lame effort to justify federal voter registration by declaring ¡°the Elections Clause empowered Congress to enact the NVRA¡± and, ¡°under Congress¡¯s expansive Elections Clause power, we must hold that the registration provision, when applied to the Federal Form, is preempted by the NVRA.¡± The Elections Clause under Section 2, Article I reads:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

It is well established by history and practice that the ¡°Times, Places and Manner of holding Elections¡± has absolutely nothing whatsoever to do with voter registration or voter qualifications but solely limited to “Times, Places and Manner” of holding Elections. This clause was adopted to insure Congress could act if a State had adopted an inconvenient time for an election (or failed all together), or fix the place to a single inconvenient location. The manner of holding elections is limited to only how votes shall be recorded, e.g., ballot or viva voce.

The question of prescribing qualifications to vote in Federal elections did come up during the constitutional convention with some supporting limiting suffrage to only freeholders but the idea of federally establishing voter qualification¡¯s was abandoned out of fear it would had arouse more opposition to ratifying the Constitution. Thus, it was agreed to accept the qualifications each State prescribed in order to vote in both State and Federal elections.

Hamilton in Federalist No. 60 said, “prescribing qualifications of property either for those who may elect or be elected … forms no part of the power to be conferred upon the national government,” and “[i]ts authority would be expressly restricted to the regulation of the TIMES, the PLACES, the MANNER of elections.”

Rep. John A Bingham of Fourteenth Amendment fame, summed up the history of the question in 1871 best by stating the ¡°qualification of electors and the manner of holding or conducting elections are as distinct from each other as light and darkness.¡±

In an 1871 House Report on the very subject, Bingham was explicit:

That the House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

This provision has always been construed to vest in the several States the exclusive right to prescribe the qualifications of electors for the most numerous branch of the State Legislature, and therefore for members of Congress. And this interpretation is supported by section four, article one, of the Constitution, which provides- ¡°That the time, places, and manner of holding elections for Senators and Representatives shall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by law make or alter such regulations except as to the place of choosing Senators.¡±

Now, it is submitted, if it had been intended that Congress should prescribe the qualification of electors, that the grant would have read: the Congress may at anytime by law make or alter such regulations, and also prescribe the qualification of electors, &c. The power, on the contrary, is limited exclusively to the time, place, and manner and does not extend to the qualification of the electors. This power to prescribe the qualification of electors in the several States has always been exercised, and is to-day, by the several States of the Union; and we apprehend, until the Constitution shall be changed, will continue to be so exercised, subject only to the express limitations imposed by the Constitution upon the several States, before noticed (15th Amendment).

Because voter qualification and registration for both State and Federal elections falls under the exclusive domain of each State, explains why Congress never attempted to say what qualifications is required in order to register to vote in Federal elections. Congress could have declared freemen or women qualified to vote in Federal elections but they did not, not because they neglected to do so, but because they had no constitutional authority to say who can, or cannot, vote in Federal elections.

On the other hand, States exercised full authority over voter registration and indeed could include colored voters or women suffrage in Federal election with the State of Wyoming leading the way in giving full suffrage rights to women long before there was a Nineteenth Amendment.

To conclude, Proposition 200 preempts National Voter Registration Act of 1993 because NVRA is not authorized by the Constitution.

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Original Meaning: Cruel and Unusual Punishments Mon, 19 Mar 2012 11:36:58 +0000 Summary: The prohibition against cruel and unusual punishments is a check against extralegal tribunals or discretionary acts of judges in imposing illegal and cruel punishments that are unknown to established law as practiced under the infamous court of Star Chamber.

I thought it was about time to address the well-established ancient understanding of the Eighth Amendments provision for ¡°cruel and unusual punishments¡± since it is obvious current jurisprudence has no fundamental clue to its constitutional purpose. Most judges today probably will be surprised to learn it is directed at them as security against imposing discretionary punishments not sanctioned by fixed law than anything to do with established law itself.

Cruel and unusual punishment under the Eighth Amendment is rather easy to understand because of the fact it was copied verbatim from the English Bill of Rights of 1689. The English Bill of Rights tells us the evil remedied by the words ¡°cruel and unusual punishments¡± was to prohibit the practice of ¡°illegal and cruel punishments,¡± because such punishments were ¡°utterly and directly contrary to the known laws and statutes and freedom of this realm.¡±

The English Bill of Rights of course was in response to the evil perpetrated by the great tyrannical commission of the extralegal court of Star Chamber. The court of Star Chamber originally served as a king’s council to supervise lords under Henry VII that grew into an oppressive tool of the crown to destroy political opposition, generate revenue for the treasury through extraordinary fines and confiscation, and to punish disobedience to its illegal proclamations.

The court became so powerful it could control the press by prohibiting what could be published or punish juror’s for verdicts that displeased the King. Even Parliament grew terrified of the court.

Because punishments and fines of the court of Star Chamber were at the discretion of judges who arbitrarily pronounced guilt outside of the law of the land, often were harsh and unknown to the common law for the reason they were issued not with rule of law in mind, but cruelty and vindication. Thus, the English Bill of Rights made it illegal for any judge of a court to proscribe any punishment or fine unknown to the common law.

Like the English Bill of Rights, the Eighth Amendment secures against the executive or legislature from creating any extralegal bodies with authority to act outside of established law to impose unlawful punishments or fines. It also serves to protect against discretionary acts of judges.

The use of the old ducking-stool (not to be confused with cucking-stool) for woman was considered cruel and obsolete by the court in James v. Commonwealth, 12 Serg. & R. 236, yet agreed the law would been upheld if was a lawfully prescribed punishment under Pennsylvania codes rather than a discretionary imposed punishment of a judge.

In closing, history strongly reveals the Eighth Amendment has nothing to do with treatment, pain or suffering but rather the imposition of cruel treatments outside of established tribunals of law.

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Constitutional Purpose of Recess Appointments Sun, 08 Jan 2012 08:47:17 +0000 Since recess appointments have been getting a great deal of press attention lately, and because it appears Obama and Congress don¡¯t have a firm understanding of the actual text and history of the clause; I thought would quickly explain the constitutional purpose of the recess clause beginning with its earliest roots.

The recess clause to the Constitution was proposed by North Carolina delegate Richard Dobbs Spaight during the federal convention, who thought it might be a good idea for the federal Constitution to mimic the North Carolina Constitution in regards to recess appointments.

Recess appointments served an important function because the power to make appointments was generally shared by both the executive and the legislature who might have long recesses. It was common for many State legislative bodies to have biennial sessions, leaving potentially important vacancies to occur during recess of the legislative body, such as sheriffs and constables, to go for some time before being filled if there was no exception for the executive to make appointments while the legislature was not in session.

The language of the federal recess clause bears this truth in the words, ¡°The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.¡± Obviously appointing someone to fill a vacancy that is already before the Senate for their advice and consent cannot be considered a vacancy occurring during the next recess of the Senate. An 1845 Attorney General opinion confirms this: ¡°If vacancies are known to exist during the session of the Senate, and nominations are not then made, they cannot be filled by executive appointments in the recess of the Senate.¡±

Alexander Hamilton explained the recess clause this way:

The ordinary power of appointment is confined to the President and Senate jointly, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen in their recess, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, singly, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”

Hamilton added in 1799 that, ¡°[i]t is clear, that independent of the authority of a special law, the President cannot fill a vacancy which happens during a session of the Senate.¡±

In conclusion, it would be rather absurd to treat the recess clause as a tool for the President to use to circumvent the Senates constitutional advice and consent role in approving appointments to fill vacancies, especially with the clear constitutional limitation of filling vacancies that occur only during a recess. Appointments for vacancies that occur during a Senate session can only be filled through the Senates advice and consent. The senate or court could remedy any illegal appointments to fill vacancies by the President that occur while the Senate is in session, or while the appointment is already before the Senate and the Senate goes into recess, by immediately declaring the appointment void.

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Thomas is right, Establishment Clause Jurisprudence ‘in Shambles’ Fri, 04 Nov 2011 07:34:54 +0000 seperation of church and state

Justice Thomas pointed out what many should already know from his lone dissent from the court’s denial of certiorari in Utah Highway Patrol Association v. American Atheists Inc. on Monday: Federal Establishment clause jurisprudence is ¡°in Shambles.¡± The court¡¯s refusal to hear the case brings to an end a lawsuit that has been contested since 2005, leaving Establishment Clause jurisprudence muddy as ever:

Today the Court rejects an opportunity to provide clarity to Establishment Clause jurisprudence in shambles. A sharply divided Court of Appeals for the Tenth Circuit has declared unconstitutional a private association¡¯s efforts to memorialize slain police officers with white roadside crosses, holding that the crosses convey to a reasonable observer that the State of Utah is endorsing Christianity.

Thomas mocks the court over how the Lemon/endorsement test has been selectively applied to cases over the years leaving the question of ¡°constitutionality of displays of religious imagery on government property anyone’s guess.¡± He draws attention to the majority ditching the Lemon/endorsement test in upholding a Ten Commandments monument located on the grounds of a state capitol in Van Orden, 545 U. S. 677. On the same day Van Orden was announced, the court decides to apply the Lemon/endorsement test in McCreary County v. American Civil Liberties Union of Ky. to find a display of the Ten Commandments in a courthouse unconstitutional.

Thomas says the Court ¡°should be deeply troubled by what its Establishment Clause jurisprudence has wrought.¡± He reminds Scalia of his own dislike of the Lemon test in his concurring opinion in the 1993 case of Lamb’s Chapel v. Center Moriches Union Free School District:

As to the Court’s invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman, 505 U.S. ___ (1992), conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

Thomas reminds the court it is ¡°actual legal coercion¡± that the Establishment Clause addresses and not religious acknowledgment. Ignoring this important distinction is the chief reason for the erroneous outcomes under the Lemon test where the court mistakes the word ¡°establishment¡± for the word ¡°endorsement.¡±

From the earliest times in this country¡¯s history ¡°establishment¡± meant church of a certain religious sect established by law. In the northern colonies, citizenship required being a member of the church established by law, e.g., the established Church of Massachusetts. In the south, the Church of England was the established church by law, e.g., Virginia.

An established church by law could infringe the ¡°free exercise¡± of the people to worship other religious tenets if worship in an established church were coercive by law. Hence, why the federal First Amendment lumps both establishment and free exercise together. The disestablishment the First Amendment Establishment and Free Exercise Clauses erect is the ¡°wall¡± between Church & State Thomas Jefferson was referring to in his famous Danbury Baptist letter.

It should be apparent why such things as religious symbols, ministerial exceptions, and legislature or school prayers have nothing remotely in common with the Establishment Clause and why the words ¡°Congress shall make no law¡± precede it. The only question in any Establishment case is whether Congress has established a church by law.

The above reasons makes the Establishment Clause a bad candidate for current theory of substantive due process incorporation since there are no ¡°history, legal traditions, and practices¡± of the Establishment Clause being anything other than a barrier against government establishment. For purposes of the substantive due process, it would have to be shown through the nations ¡°history, legal traditions, and practices¡± that it was a fundamental right of individuals to be free from government recognition of Christianity or free from having to observe individuals or governments acknowledging Christianity on public property.

Moreover, Christianity is the only religion deeply rooted in America¡¯s ¡°history, legal traditions, and practices,¡± making it difficult to assert it is somehow improper for the peoples governments to show a preference to Christianity. The fact is Christianity was the only religion recognized in American law since the first settlements. The Fourteenth Amendments author said in 1869 that is was a duty of all State legislatures to recognize Christianity in their laws.

Justice Thomas correctly points out the ¡°Establishment Clause restrains only the Federal Government¡± because the words ¡°Congress shall make no law¡± were never redacted through the adoption of the Fourteenth Amendment. Additionally, nothing in the Fourteenth Amendments text empowers the court to assume otherwise. If the framers thought due process was ¡°substantive¡± there would never had been any purpose beginning in 1871 to amend the federal constitution to make religion in one form or another a limitation against the States.

The fact it was attempted at least seven times post Fourteenth Amendment, including the 1876 attempt to make the First Amendments Establishment and Free Exercise Clauses binding against the States through the Blaine Amendment, proves due process was not viewed as being applicable outside of the administration of justice for crime.

Some might argue the Blaine Amendment would not have been required if it was not for the Slaughterhouse cases in 1873. Two fatal problems with this argument, 1) the Blaine Amendment was due from a recommendation from President Grant that had no connection to the Slaughterhouse ruling, and 2), the Fourteenth Amendments author, Rep. John A. Bingham, and entire House confirms in an 1871 House Report that the Slaughterhouse court was in fact correct with their citizenship and privileges or immunities holding. Arguing the Slaughterhouse court somehow got it all ¡°wrong¡± is futile.

The unpleasant truth behind the courts ¡°incorporation¡± theory is there is no incorporation other than what bill of rights the Fourteenth Amendment says it incorporated; due process of law and Article IV’s privileges and immunities, which Bingham called a “bill of rights” for citizens of the United States “in, not of” a State.

Finally, the chief reason Establishment Clause jurisprudence is ¡°in Shambles¡± is due to the judicial fraud of ¡°incorporation.¡± Only when this fraud is cleaned up will constitutional harmony of religion be restored where the federal Constitution leaves it.

Related: Misunderstanding Jefferson¡¯s ¡®wall of separation¡¯ metaphor

Related: Supreme Ignorance: ACLU¡¯s Empty Establishment Claims

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There is No Constitutional Right to Occupy Fri, 14 Oct 2011 11:44:15 +0000 “[A]ssembly to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” —William Rawle

I wish to briefly address the assertion the folks occupying Wall Street – and elsewhere – are merely exercising their First Amendment right to peaceful assembly. The constitutional provision to peaceably assemble extends no further than to peacefully assemble for a lawful purpose such as circulating a petition to present to government. It is not a requirement for government to provide a public soapbox in order for groups to publicly advocate some policy or protest some action through public disturbance, or disruption of daily life of the public.

Books are filled with court holdings since the founding that says the right to assemble gives no group of people a right to “commit violence upon persons or property,” or “resist execution of the laws,” or “to disturb public order.”

If laws for restricting camping, the hours for which public property may be occupied, or even how many persons may occupy a given space, have always been a legitimate municipal exercise, what makes anyone think either State or Federal constitutions exempts persons from such laws?

Tucker said of the the federal right to assemble was ¡°to protect the petitioners in their right to get up the petition, circulate it for signatures, and have it presented.¡± The Supreme Court case of United States v. Cruikshank observed the purpose of assembly was for petitioning government: “The right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances, or for anything else connected with the powers or the duties of the National Government.”

In England, the right of assembly existed from early times and was strictly tied to the right of petitioning Parliament for political purposes, which the crown had always strongly contested. Different acts of the Tudors and Stuarts sought to limit and restrict assembly.

There is a big difference between gathering to draw public attention to some grievance or message through disruption of the public peace and peacefully gathering to address common public concerns and to circulate a petition for signature. The later requires no mob occupation or disruption of the peace or laws.

From a purely historical standpoint, “Occupy Wall Street” is nothing more than rebellion, and as such generally been dealt with by use of the militia to suppress.

The right to assemble and petition found under American constitutions is grounded in the Declaration of Rights of 1688 under William III and Mary that read: “That it is the right of the subject to petition the King, and all commitments and prosecutions for such petitioning are illegal.” The act of James of putting on trial seven bishops for libel for circulating a petition of grievances against one of his declarations was highly controversial and something the colonies wanted to prevent any re-occurrence.

The Declaration of Colonial Rights of 1775 complained:

And whereas, assemblies have been frequently dissolved, contrary to the rights of the people, when they attempted to deliberate on grievances; and their dutiful, humble, loyal, and reasonable petitions to the crown for redress, have been repeatedly treated with contempt by his majesty’s ministers of state.

Justice Story said assembly was unnecessary to be expressly provided for because of our republican form of government, and he was right since legislative or political redress in America comes from the ballot. It is worth noting that in early England Parliament was as much a court as it was a legislative body while in America the legislatures had no judicial authority. Thus, petitions to either Congress or a State legislature must be related to legislation and not grievances cognizable in court.

I will finish by saying any public protest or large gatherings are only permissible as far as local municipal law permits. As William Rawle put it, “assembly [is] to be peaceable, the usual remedies of the law are retained, if the right is illegally exercised.” An ordinance that denies a gathering of people from disrupting traffic, a funeral, business or from creating a public nuisance in order to draw attention to some message does not deny any constitutional freedom.

Finally, no amount of court opinion has been able to erase the First Amendment’s beginning words; “Congress shall make no law …”

Related: Orignal Meaning of Freedom of Speech

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Wrong Questions in Hosanna-Tabor Religious Freedom Case Tue, 11 Oct 2011 05:16:58 +0000 Hosanna-Tabor Evangelical Lutheran Church and School (¡°Hosanna-Tabor¡±) is a religious school in Redford, Michigan who terminated employment of a teacher and commissioned minister named Cheryl Perich after a disability-related leave of absence for narcolepsy. Perich taught a full secular curriculum along with religion and lead students in prayer. Perich filed a complaint with the Equal Employment Opportunity Commission (¡°EEOC¡±), alleging discrimination and retaliation in violation of the Americans with Disabilities Act (¡°ADA¡±).

Hosanna-Tabor argues the case involves a dispute over religious authority, and the First Amendment doctrine that recognizes a “ministerial exception” removes the school from such litigation because judges would be interfering in the pastoral and religious mission of the school. The Obama Administration argues the ¡°ministerial exception¡± should not apply when churches or religious schools fire someone in retaliation for asserting their rights under disabilities law.

This case is being paraded as a high stakes First Amendment test over separation of church and state but in reality, it has nothing to do with any enumerated powers invested in the central government over anything touching religion or labor.

For starters, there is no hidden “ministerial exception” under the federal First Amendment because the amendment is solely directed against Congress to make law, and therefore, extends no protections to individuals or groups within State jurisdictions.

Both the Establishment Clause and Free Exercise Clause declares Congress shall not nationalize any religious denomination into a national church to then compel by law for people to support and worship such an establishment, which in return would effectively deny people the free exercise of worshiping another form of religion through dictates of their own conscience. Madison described the First Amendment as a “proof” no power was delegated in Congress to do the things it prohibits rather than security people could claim for themselves.

Since Cheryl Perich (or anyone else) is not a victim of any congressional act to established a national religion and compel by law that it is the only religion people may worship, makes it a rather improper clauses to appeal to in 99% of all religious matters.

Of course, this did not stop justices from ignoring the ¡°black on white in the text of the Constitution¡± that says, ¡°Congress shall make no law¡± during last Wednesday¡¯s oral arguments.

Chief Justice Roberts asked if ¡°there anything special about the fact that the people involved in this case are part of a religious organization?¡± The government¡¯s response was that it made no difference whether it was a religious organization or a labor organization, or any other form of association of people.

Justice Scalia thought the government¡¯s response to the Chief Justice was ¡°extraordinary¡± because ¡°we are talking here about the Free Exercise Clause and about the Establishment Clause.¡± Scalia added, ¡°but there, black on white in the text of the Constitution are special protections for religion.¡±

Justice Kagan also announced she had never personally read the actual words of the First Amendment when she said, ¡°I too find that amazing, that you think that the Free – neither the Free Exercise Clause nor the Establishment Clause has anything to say about a church’s relationship with its own employees.¡±

The first question any honest justice of the court should ask is why a religious employment dispute originating within a State is a federal matter to begin with. The EEOC might respond by asserting it is a federal matter due to Congress exercising ¡°its power to regulate commerce among the several States and with foreign nations,¡± through an act approved June 10, 1963.

Since the government is asserting authority over discrimination and employment matters within States through the authority to regulate commerce ¡°among the several States and with foreign nations,¡± would be fair to ask why the government does not enforce anti-employment discrimination laws in other nations. After all, Chief Justice Marshall in Gibbons v. Ogden said the regulation of commerce is regulated in the same manner among the States as with foreign nations, and just as with foreign nations, commerce among the States ¡°must, of necessity, be commerce with the States.¡±

The commerce clause of course, does not say anything about regulating commerce ¡°within¡± States or foreign nations, or regulating the internal commerce on behalf of States and nations. Such activities as buying and selling and labor were never a substance of commercial intercourse ¡°between¡± different powers. Only the items of importation themselves were the subject of rules and regulations in any commercial intercourse ¡°between¡± different powers.

If current federal jurisprudence were not based upon erroneous assumptions, or corrupt constructions, the case would simply be dismissed for want of authority over labor matters. Scalia remarked during oral arguments that ¡°[t]here is nothing in the Constitution that explicitly prohibits the government from mucking around in a labor organization.¡±

There is nothing in the Constitution that explicitly prohibits the ¡°government from mucking around in a labor organization¡± in France, either. If the day comes when Congress becomes arrogant enough to try, will the court hold it is a valid regulation of foreign commerce?

There was no need for the Constitution to explicitly prohibit anything since the federal Constitution is merely a limited instrument of defined powers. In other words, a power not expressly given is a power expressly denied. Moreover, history of regulating commerce shows labor or discrimination was never anything States and nations ever regulated between themselves because it was impossible for such things to be attached to the commercial intercourse between them. It would have made a mockery of federalism if the central government could claim powers it defined for itself over the States.

In short, both the court and government on Wednesday flunked basic Constitution 101.

Related: Jefferson’s Wall of Separation Metaphor

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NAFTA Trucking Provision Unconstitutional Wed, 24 Aug 2011 03:15:31 +0000 Remember that trucking provision under NAFTA (The North American Free Trade Agreement), which was ratified in November of 1993, allowing Mexican trucks to access border States highways by 1995 and to all US highways by 2000? The trucking provision of the agreement has never been fully implemented due to safety concerns of Mexican trucks, which currently are restricted to a 25-mile border zone. This has resulted in retaliatory tariffs by Mexico over this disputed highway access.

In July, the United States and Mexico signed an agreement aimed at resolving this cross-border trucking dispute under NAFTA. While most of the controversy centers on safety concerns, the real concern should be with Congress¡¯ authority to mandate foreign traffic within sovereign State limits.

It will be argued Congress can mandate foreign trucking upon American highways under Commerce Clause authority. This will ignore the fact nations regulate their commercial intercourse through duties and imposts on articles of imports only. The regulation of commerce was never a police power or a power over commercial activities within another sovereign (more on this here).

It might be argued that early Congress¡¯ had always regulated transportation; ignoring the fact the exercise was with ocean vessels under law of nations over marine affairs of nations and not from any power to regulate commerce. Never did early Congress’ claim any regulatory authority over transportation within States to assert municipal control of traffic via the regulation of commerce since such a regulation was purely a taxation power to restrict or prohibit importation.

It could be argued Congress has the authority under the power to make treaties but then the treaty power does not extend any new powers for Congress to exercise over the States. As James Madison put it, the ¡°exercise of the power must be consistent with the object of the delegation.¡±

In The Cherokee Tobacco Case, 11 Wall. 616, the Supreme Court of the United States said: “A treaty cannot change the Constitution or be held valid if it be in violation of that instrument.” In The People v. Naglee, 1 Cal. 231, it was held that a treaty “cannot supersede a State law which enforces or exercises any power of the State not granted away by the Constitution.” In The People v. Washington, 36 Cal. 658, it was said that “a treaty is but a part of the law of the land, and what is forbidden by the Constitution can no more be done by a treaty than by an act of Congress.”

And of course in Marbury v. Madison the Supreme Court held “an act of the legislature repugnant to the constitution is void.” I can’t think of anything more repugnant to the constitution then Congress acting through treaty to force foreign trucks upon State highways.

Congress needs consent of State legislatures to purchase property within a State, and application of State legislatures to protect a State against domestic violence. What makes anyone think the States surrendered their authority over their own dry land highways?

Simply stated, this is just another arrogant, blatant disregard of State sovereignty by the United States government, who has no constitutional authority to implement such foreign trucking schemes within independent and sovereign States. Because the regulation of commerce was never regulated by any other means then a tax on imports between nations, proves no authority over transportation upon State highways was delegated to the federal government to exercise under any pretense during peace.

At best, Congress can only recommend to States to permit foreign trucks upon their highways and inform Mexico it will be up to each State to consent like in past cases of treaties dealing with foreign education within States.

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14th Amendment Does Not Prevent Debt Default Fri, 08 Jul 2011 23:03:25 +0000 http://localhost/2011/07/14th_amendment_does_not_prevent_debt_default/ The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void. —Section 4 of the Fourteenth Amendment

If I understand the argument currently circulating around the web correctly, the debt limit is unconstitutional under §4 of the Fourteenth Amendment because the failure to service (borrow/pay) public debt would bring the validity of it into question. This does not strike me as having any connection with the textual history behind this section.

After the Civil War, there was great apprehension over such things as confederate war claims, rebel debt and concerns over future actions by members of Congress from former rebel States who might endeavor on a strategy to impair the obligations incurred in suppressing the rebellion, such as Union soldier pensions. Such concerns are illustrated in a House resolution by Samuel J. Randall of Pennsylvania on December 5, 1865, where it was approved by a House vote of 162 to 1:

Resolved, (as the sense of this House,) That the public debt created during the late rebellion was contracted upon the faith and honor of the nation; that it is sacred and inviolate, and must and ought to be paid, principal and interest; and that any attempt to repudiate, or in any manner to impair or scale the said debt, should be universally discountenanced by the people, and promptly rejected by Congress if proposed.

This resolution was the foundation for incorporating §4 into the Fourteenth Amendment. When the adopted language of the fourth section cleared the Senate and sent to the House for approval, House and Reconstruction leader, Thaddeus Stevens, described its objective as identical with the above resolution as rendering “inviolable the public debt and repudiates the rebel debt.”

To make a long explanation short, the first sentence of the fourth section commands that no Congress may bring into question the validity of public debt authorized by law with intent to impair it. I doubt a case can be made of defaulting on payment of public debt because of either lack of revenue, a debt limit or, even lack of credit to continue borrowing to pay the debt, raises to the level of willful repudiation against authorized debt. In other words, defaulting on debt payment due to financial considerations is not the same as an act of Congress to repudiate any debt.

UPDATE: More historical background can be found on Jack Balkin’s blog here.

UPDATE: What would be an example of repudiating, or calling into question, the public debt?

A great example would be the State of Mississippi’s $5,000,000 banking bonds issued in 1838. The State could not afford to pay the debt and was unwilling to issue more debt for repayment. This lead to the governor requesting the legislature to call into question the validity of the debt on grounds of “fraud and illegality.” The legislature refused, allowing the bonds to fall into default where they remained for a future legislature to resolve.

UPDATE: Budgetary restraints in servicing debt due to revenue shortages is not the same thing as Congress calling into question the “validity” of any portion of the public debt. Financial difficulties or the desire to repudiate the debt in order to avoid having to make future payouts are two different things.

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How States & Nations Regulated their Commercial Intercourse Thu, 30 Jun 2011 17:28:38 +0000 http://localhost/2011/06/no_power_over_interstate_commerce/
  • The Power Described
  • The Regulating Power Sought Over Commerce with the States
  • Commerce Defined
  • Why Nations Regulate their Commercial Intercourse
  • Why the Power among the States
  • Why Congress Lacks Affirmative Powers over Interstate Commerce
  • Confusing Marine Power with the Regulation of Commerce
  • Conclusion
  • The United States Supreme court tells us their ¡°case law firmly establishes Congress’ power to regulate purely local activities that are part of an economic ¡®class of activities¡¯ that have a substantial effect on interstate commerce.¡± In a September 2009 press release, former speaker of the House Nancy Pelosi asserted, “the Constitution gives Congress broad power to regulate activities that have an effect on interstate commerce.”

    The question explored here is whether such ¡°case law¡± or public assertions are supported in any way by the history, text and custom of regulating commerce. If it cannot be supported by any factual evidence then it is clearly erroneous and has no place in federal jurisprudence where facts and truth should be held paramount.

    History of the organic law of this country conclusively shows beyond any doubt that the regulation of commerce was nothing more, and nothing less, then the act of imposing a tax on articles of import for the sole purpose of restricting or prohibiting their introduction in order to protect or promote local manufactures. Moreover, this was the custom and practice of all nations in regulating commerce with other nations or parts of a nation and no nation ever claimed police powers over another nation or parts of themselves via authority to regulate commerce.

    Because regulating commerce and generating revenue is accomplished through the same identical method of imposing a tax, the regulation of commerce “among the several states” was inserted for remedial purposes of preventing States from taxing the trade of other States as well as preventing Congress from doing the same under Section 9.

    It will become abundantly clear why James Madison referred to the regulation of commerce “among the several states” as a “negative and preventive provision” and not any power Congress may resort to for “positive purposes” (see Madison letter to Joseph C. Cabell).

    Finally, it will be pointed how the court has mistakenly confused marine law of nations with that of regulating commerce, which has introduced erroneous assumptions over the extent of the power.

    The Power Described

    Chief Justice Marshall tells us in the classic and still respected case of Gibbons v. Ogden (1824) that the power to regulate commerce “describes the commercial intercourse between nations, and parts of nations, in all its branches, and is regulated by prescribing rules for carrying on that intercourse.”

    Marshall obviously is correct in describing the Commerce Clause as dealing with commercial intercourse “between” nations and parts of nations because the Constitution speaks only of regulating commerce “with foreign nations” and “among the several States” and not the regulation of commercial activities within nations or within States. It is too obvious why the regulation of commerce must be “between” and not “within” because Congress has no sovereign jurisdiction over commercial activities either within a foreign nation or within a State. This fact alone makes it silly to suggest the power to regulate commerce can have broad application.

    Some might attempt to argue the method of regulating foreign commerce is not the same as regulating commerce among the States. However, the text of the Commerce Clause reveals no alternating commands to how the regulation of commerce shall be regulated differently between States and nations (or even with Indian tribes). Marshall pointed out this clear fact in Gibbons by observing, “it (regulation of commerce) must carry the same meaning throughout the sentence, and remain a unit, unless there be some plain intelligible cause which alters it.”

    Marshall further pointed out that “[c]ommerce among the States must, of necessity, be commerce with the States.”

    Suffice to say, there is no “plain intelligible cause” to alter how the power is exercised differently between States and nations. Since commerce is regulated in the same manner among the States as with foreign nations, answering what rules are prescribed in regulating foreign commerce also answers the question of what are the proper rules for regulating commerce among the States.

    Because the subject of regulation is the commercial intercourse “between” nations and States and not within them, does not make it terribly important of what might all come under the singular word “commerce” outside of this regulation because its meaning can only be properly defined in connection with what is actually exchanged between different powers. This textual fact of the Commerce Clause limits the discussion of commerce to importation since that is the only commercial intercourse that goes on between different powers (more on this in a moment).

    A quick word on navigation: When “navigation” is spoken of as an ingredient of regulating commerce it is a reference to points of entry where ships of trade are directed to enter for purpose of customs (cargo inspection, duties and imposts levied, seizures made, etc.). This is why Chief Justice Marshall said the words, ¡°nor shall vessels bound to or from one state be obliged to enter, clear, or pay duties in another¡± was the navigation comprehended in regulating commerce.

    The Regulating Power Sought Over Commerce with the States

    No doubt the reason for little debate or controversies over Congress regulating commerce among the States during the constitutional convention was due to the well understood practice of the power and resolutions under the old Articles of Confederation asking for State approval to empower Congress with specific and detailed powers to regulate State and foreign commerce. The first resolution in February of 1781 by John Witherspoon, read, in part:

    That it is indispensably necessary that the United States in Congress assembled, should be vested with a right of superintending the commercial regulations of every state, that none may take place that shall be partial or contrary to the common interest; and that they should be vested with the exclusive right of laying duties upon all imported articles, no restriction to be valid, and no such duty to be laid but with the consent of nine states: provided, that all duties and imposts laid by the United States in Congress assembled, shall always be a certain proportion of the value of the article or articles on which the same shall be laid …

    Another resolution example is from a committee lead by James Monroe in 1785 asking the States to give Congress the authority “of regulating the trade of the states, as well with foreign nations, as with each other, and of laying such impost and duties, upon imports and exports, as may be necessary for the purpose.” Monroe would later explain in 1822 that:

    Commerce between independent powers or communities is universally regulated by duties and imposts. It was so regulated by the States before the adoption of this Constitution, equally in respect to each other and to foreign powers. The goods and vessels (tonnage duties) employed in the trade are the only subjects of regulation. It can act on none other. A power, then, to impose such duties and imposts in regard to foreign nations and to prevent any on the trade between the States was the only power granted.

    Madison offered a resolution on November 30, 1785 asking that, “the United States in Congress assembled be authorized to prohibit vessels belonging to any foreign nation from entering any of the ports thereof, or to impose any duties on such vessels and their cargoes which may be judged necessary.”

    To prevent States from regulating commerce, Madison’s resolution called for no State to be at “liberty to impose duties on any goods, wares, or merchandise, imported, by land or by water, from any other state, but may altogether prohibit the importation from any state of any particular species or description of goods, wares, or merchandise, of which the importation is at the same time prohibited from all other places whatsoever.”

    This resolution leads to the Annapolis Convention of 1786 that in return lead to the convention in Philadelphia in May of 1787.

    Another resolution in August of 1786 asking the States to empower Congress with the power to “have the sole and exclusive power of regulating the trade of the States as well with foreign nations as with each other and of laying such prohibitions and such Imposts and duties upon imports and exports as may be Necessary for the purpose…”

    These resolutions show a clear, consistent understanding of how commerce is, and was, regulated through taxation on importation and not municipal law over internal commercial activities. Additionally, these examples illustrate the well-recognized dual purpose of taxation of either raising revenue or regulating commerce.

    William Pitt speaking before the House of Commons in 1765 pointed out the dual purpose of taxes, “there is a plain distinction between taxes levied for the purpose of raising a revenue, and duties imposed for the regulation of trade.” Colonial delegate Benjamin Franklin asserted the same thing a year later. James Madison in Federalist No. 56 said, “[t]axation will consist, in a great measure, of duties which will be involved in the regulation of commerce.”

    Marshall in Gibbons also recognized the dual purpose of taxes: “It is true that duties may often be, and in fact often are, imposed on tonnage with a view to the regulation of commerce, but they may be also imposed with a view to revenue.”

    Imposing a general revenue tax disguised as a regulation of commerce that clearly does not protect or promote local manufactures, could have adverse consequences as Britain once discovered during colonial times (the colonies “cheerfully consent[ed]” to Britain taxing for the regulation of their external commerce but not for general revenue). Because of this dual nature of taxes, States were restrained from laying taxes for any purpose upon imports or exports outside of their own.

    The first act of Congress following the convention to regulate commercial intercourse was an act titled, “An act for laying a duty on goods, wares, and merchandizes, imported into the United States,” signed by President Washington on July 4, 1789. Imposing rules of what imported articles are restricted or prohibited via a tax was the only known method of regulating commercial intercourse between independent powers.

    It is now easy to understand what Marshall meant of regulating commerce in Gibbons as “cannot stop at the external boundary line of each State, but may be introduced into the interior.” He of course was referring to the prohibition against a State in taxing either another State or foreign nation imports/exports once it is introduced into the State and with the intent to be shipped through the State to another for purpose of bringing that trade to market.

    Commerce Defined

    Because the regulation of commerce is the regulation of intercourse “between” different powers, and because this intercourse is regulated through duties on imports, leaves us with the only question of what exactly is an ¡°import.¡±

    Chief Justice Marshall in Brown v. Maryland (1827) says the “lexicons inform us they (imports) are ‘things imported.'” He continues, “If we appeal to usage for the meaning of the word, we shall receive the same answer. They are the articles themselves which are brought into the country.” Marshall goes on to state the articles of import are those “only which are intended for sale or consumption in the country.”

    It should be apparent how such things as “labor” or “services” cannot come under the regulation of commerce because, for example, “services” are not property imported. It is also rather absurd to argue regulating the transportation of “passengers” is a regulation of commerce in light of the unmistakable fact the United States no longer recognizes a property in men for purposes of trade. This is what made regulating the foreign slave trade awkward under the Commerce Clause because as Madison put it, human beings were not “property,” and “slaves are not like merchandise, consumed, etc.”

    This is why the court in New York v. Miln (1837) was forced to acknowledge persons “are not the subject of commerce, and not being imported goods, cannot fall within a train of reasoning founded upon the construction of a power given to Congress to regulate commerce.”

    England and the States never asserted they were regulating commerce when they passed laws regulating manufactures, labor or fixing the price of certain commodities.

    The word “commerce” as employed under the Commerce Clause also does not extend any powers over buying and selling. Thomas Jefferson said, “[t]o make a thing which may be bought and sold is not to prescribe regulations for buying and selling . . . if this were an exercise of the power of regulating commerce, it would be void, as extending as much to the internal commerce of every state, as to its external.” In response to Jefferson, Hamilton agreed buying and selling “falls more aptly within the province of the local jurisdictions than within that of the general government.”

    Consider also that to regulate the value of money, to make laws for bankruptcies, or to “fix the standard of weights and measures” are all-important ingredients of commerce, yet the Constitution specifically enumerates these powers for Congress to exercise. In Federalist No. 42 Madison said: “The power of establishing uniform laws of bankruptcy, is so intimately connected with the regulation of commerce, and will prevent so many frauds where the parties or their property may lie, or be removed into different states, that the expediency of it seems not likely to be drawn into question.”

    So while bankruptcy may be “intimately connected” with commerce, this connection does not make it part of any regulation of commerce because bankruptcies are never the subject of commercial intercourse between different sovereigns.

    It is no wonder that the framers are frequently found referring to the regulation of commerce as the “regulation of trade” because this commerce is the regulation of those articles of trade imported for the purpose of consumption.

    Why Nations Regulate their Commercial Intercourse

    The object behind taxation for regulating commercial intercourse is not, of course, revenue, but for the protection or encouragement of local manufactures by laying restrictive or prohibiting duties on those imported items that compete with what is domestically manufactured. Moreover, like all taxes, this tax extends no power over the thing taxed other than to restrict or prohibit its introduction.

    The Declaration of Colonial Rights of 1774 declared the ¡°regulation of our external commerce, for the purpose of securing the commercial advantages of the whole empire to the mother-country, and the commercial benefits of its respective members.¡±

    Again, referring to Section 1 of the first acts of Congress in regulating commerce in 1789, we find the purpose of regulating commerce in the words, “encouragement and protection of manufactures, that duties be laid on goods, wares, and merchandizes, imported, etc.”

    Jefferson wrote in 1821 that the “government of the United States at a very early period, when establishing its tariff on foreign importations, were very much guided in their selection of objects by a desire to encourage manufactures within themselves.”

    Madison writing on tariffs in 1828 said the power of regulating commerce “has been understood and used, by all commercial and manufacturing nations, as embracing the object of encouraging manufactures. It is believed that not a single exception can be named.”

    A couple of examples of regulating commerce is in order: Congress may seek to encourage American shipbuilding or American navigation in the coasting trade through prescribing high tonnage duties on foreign made vessels while laying little to none on American made ships in order to encourage building or use of American ships. Another example would be how Congress currently encourages the use of American made ethanol for gasoline blending by placing a $0.60 per gallon duty on all imported ethanol. While this is a proper exercise of regulating commerce, mandating by positive law that refineries must produce gasoline blended with ethanol is not because such laws are a police regulation that only the sovereign where such activities occur under can mandate.

    During the federal convention in 1787, Madison noted that Col. Mason observed the “particular States might wish to encourage, by impost duties, certain manufactures, for which they enjoyed natural advantages, as Virginia [in] the manufacture of hemp, etc.” Madison responded by saying the “encouragement of manufactures in that mode requires duties, not only on imports directly from foreign countries, but from the other States in the Union, which would revive all the mischiefs experienced from the want of a general government over commerce.”

    Why Congress was empowered to Regulate Commerce among the States

    Nothing clarifies a constitutional provision better than the purpose for which it was approved and adopted to serve. With that said, a little history is in order.

    The single most cause of discontent among the Colonies and States was over how particular States taxed the commerce of other States. Example: Connecticut was taxing the produce of Massachusetts as it navigated down the Connecticut River causing Massachusetts to retaliate by taxing all exports from its harbors belonging to citizens of all New England colonies prior to 1650.

    Later New York attempted to break up the trade of Connecticut and New Jersey by imposing heavy duties on every vessel entering from those States. Delaware and New Jersey attempted to attract the foreign trade of Pennsylvania and New York by offering lower import duties. Massachusetts and Rhode Island placed prohibitive duties on imports via British ships while Connecticut admitted such imports free, seeking a monopoly of domestic trade in British products.

    James Madison explains the “very material object” of the power to regulate commerce among the States in Federalist No. 42:

    A very material object of this power was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out, to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter, and the consumers of the former. We may be assured by past experience, that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs, that it would nourish unceasing animosities, and not improbably terminate in serious interruptions of the public tranquility.

    Madison describes the power as a “constitutional remedy” in this 1832 letter to Professor Davis of the University of Virginia:

    The power to regulate commerce among the States was well known and so explained by the advocates of the Constitution when before the people for their consideration, to be as a necessary control on the conduct of some of the importing States toward their non-importing neighbors. A recurrence to the angry legislation produced by it among the parties, some of whom had passed commercial laws (duties and imposts on articles of import) more rigid against others than against foreign nations, will well account for the constitutional remedy.

    Alexander Hamilton liken States regulating each other’s trade to the “trammels” of the German empire: “The commerce of the German empire is in continual trammels from the multiplicity of the duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the fine streams and navigable rivers with which Germany is so happily watered are rendered almost useless.”

    Framer Edmund Randolph commenting upon the powers of Congress over commerce among the States as President Washington’s AG in 1791, described the power as “little more than to establish the forms of commercial intercourse between the States, and to keep the prohibitions which the constitution imposes on that intercourse undiminished in their operation; that is, to prevent taxes on imports or exports.”

    It does not require rocket science to figure out why States would desire an end to such mischief by removing the power of the States to impose such taxes. The accepted way of doing it was to delegate the power exclusively in one authority so no State could claim it still possessed the right, and if any State did attempt to tax other States commerce for its own interests there would be a remedial avenue in voiding such actions.

    None of this of course, in any way, extends to concerns over buying or selling across State lines.

    Example: A resident citizen of a State purchases a book from a mail order merchant who then ships the book from another State to the purchaser. This activity is not part of any regulation of commerce because the book is not a property belonging to an export of another State with the intent to bring to market for sale but is merely private property having already been sold.

    As we will discover below, the central government could not be trusted with any affirmative power to regulate State-to-State commerce.

    Congress Lacks Affirmative Powers over Interstate Commerce

    With the regulation of commerce being the power to impose a tax upon competing articles of importation for purposes of protecting or promoting local manufactures, makes clear how the Constitution limits its exercise between States. Under Article I, Section 9 (Limits on Congress) under the clause that reads, “No Tax or Duty shall be laid on Articles exported from any State.”

    This federal prohibition is broad and encompasses every known tax for every known purpose upon any articles exported from any State. An “export” is merely the reverse of an import – that is to say, only those items of trade transported out for the purpose of sale or consumption in another jurisdiction.

    Framer James Wilson made it clear this prohibition extended to the regulation of commerce by pointing out this federal prohibition against taxing State exports would remove “half the regulation of trade,” meaning Congress would effectively be left with only an affirmative power over foreign imports while leaving the regulation of commerce among the States a nullity.

    The debate over the clause during the federal convention went along these lines (from Madison’s notes):

    Mr. Elseworth: It is best as it stands-The power of regulating trade between the States will protect them agst each other-Should this not be the case, the attempts of one to tax the produce of another passing through its hands, will force a direct exportation and defeat themselves – There are solid reasons agst. Congs taxing exports. 1. it will discourage industry, as taxes on imports discourage luxury. 2. The produce of different States is such as to prevent uniformity in such taxes. there are indeed but a few articles that could be taxed at all; as Tobo. (Tobacco) rice & indigo, and a tax on these alone would be partial & unjust. 3. The taxing of exports would engender incurable jealousies.

    Mr. Williamson: Tho’ N- C. (North Carolina) has been taxed by Virga (Virginia) by a duty on 12,000 Hhs of her Tobo. exported thro’ Virga yet he would never agree to this power. Should it take place, it would destroy the last hope of an adoption of the plan.

    Mr. Butler was strenuously opposed to a power over exports as unjust and alarming to the staple States.

    Mr. Langdon suggested a prohibition on the States from taxing the produce of other States exported from their harbours.

    Mr. Dickenson: The power of taxing exports may be inconvenient at present; but it must be of dangerous consequence to prohibit it with respect to all articles and forever. He thought it would be better to except particular articles from the power.

    Mr. Sherman: It is best to prohibit the National legislature in all cases. The States will never give up all power over trade. An enumeration of particular articles would be difficult invidious and improper.

    Mr. Gerry was strenuously opposed to the power over exports. It might be made use of to compel the States to comply with the will of the Genl Government, and to grant it any new powers which might be demanded-We have given it more power already than we know how will be exercised-it will enable the Genl Govt to oppress the States, as much as Ireland is oppressed by Great Britain.

    Mr. Mercer was strenous against giving Congress power to tax exports. Such taxes were impolitic, as encouraging the raising of articles not meant for exportation. The States had now a right where their situation permitted, to tax both the imports and exports of their uncommercial neighbours. It was enough for them to sacrifice one half of it. It had been said the Southern States had most need of naval protection. The reverse was the case. Were it not for promoting the carrying trade of the Northn States, the Southn States could let their trade go into foreign bottoms, where it would not need our protection. Virginia by taxing her tobacco had given an advantage to that of Maryland.

    Mr. Butler declared that he never would agree to the power of taxing exports.

    As it turned out, framer Roger Sherman was correct; States would never give up all power over commerce to the central government, nor did they.

    It has been argued the clause really reads “No Tax or Duty shall be laid on Articles exported [to a foreign nation] from any State.” This argument obviously has serious flaws primarily because such an interpretation is at war with the unambiguous text. It is also at war with the fact Congress avoided taxing State exports from State-to-State to avoid any appearance of taxing this trade.

    Example: When Congress passed the controversial Carriage Tax of 1794 for taxing the conveyance of passengers it made very clear that carriages used in “husbandry, or for the transporting or carrying of goods, wares, merchandise, produce or commodities” was exempted. This was to avoid any appearance of Congress attempting to lay a tax on State-to-State exports.

    Without the power to lay duties on State exports, there are no means for Congress to encourage or protect manufactures in one State from competition of another State. Congress cannot argue they are merely regulating State imports because one States import is another States export when it comes to commerce among the States. Regulating commerce only works when the intercourse is between foreign nations and where there are no State exports involved.

    Justice Story said of section nine: “The obvious object of these provisions is, to prevent any possibility of applying the power to lay taxes, or regulate commerce, injuriously to the interests of any one state, so as to favour or aid another.” Story further remarked the “prohibition extends not only to exports, but to the exporter. Congress can no more rightfully tax the one, than the other.”

    Framer Charles Pinckney told the House on February 14, 1820:

    I will only mention here, as it is perfectly within my recollection, that the power was given to Congress to regulate the commerce by water between the States, and it being feared, by the Southern, that the Eastern would, whenever they could, do so to the disadvantage of the Southern States, you will find, in the 9th section of the 1st article, Congress are prevented from taxing exports, or giving preference to the ports of one State over another, or obliging vessels bound from one State to clear, enter, or pay duties in another; which restrictions, more clearly than any thing else, prove what the power to regulate commerce among the several States means.

    Since the States made no restriction upon themselves to regulate their own internal commerce, can act to promote or protect manufactures of the State by imposing restrictive or prohibitory duties on anything that competes with what is made and sold in the State. Example: A State may impose high duties on foreign made t-shirts that are shipped into the State with the intent to be sold intrastate in order to protect State t-shirt manufacture from low cost foreign competition.

    There is no right under the Commerce Clause that says merchandise must be freely admitted and sold within a State but only that outside trade may enter and exit a State unburdened by taxes.

    Since it is abundantly clear to what the text and history of the clause commands, no further discussion is required.

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    It needs to be noted how the powers over commerce has been erroneously extended through the false assumption of the maritime jurisdiction and the regulation of commerce being one of the same. They are not.

    When the States moved from a league of States to one of a Nation for limited purposes of foreign commerce, defense, bankruptcies, piracies on the seas, etc., became by custom of nations a marine power. Per law of nations, all maritime affairs within three miles of the shore are invested with the national power and this jurisdiction extends to anything related to the sea such as salvage, marine insurance, safety regulations, contracts, vessel registration, liens, coasting trade, pilotage, seamen, etc., etc., etc.

    Nobody disputed or questioned the fact the new general government would be empowered over general maritime affairs of the sea because it was widely viewed as the responsibility of all nations to exercise. Framer Edmund Randolph summed it up best when he wrote as Attorney General:

    The law of nations, although not specifically adopted by the Constitution, is essentially a part of the law of the land. Its obligation commences and runs with the existence of a nation, subject to modification on some points of indifference.

    This explains how the constitution can extend jurisdiction to the judiciary over admiralty and maritime affairs without such a power having been specifically delegated to national government to exercise.

    Maritime jurisdiction extends itself to rivers and canals that are directly connected with the sea, and which may allow navigating for purpose of carrying out trade. Bodies of water where there is no direct connection to the sea or channels unusable for trade do not fall within this jurisdiction.

    Furthermore, it is the custom of nations to treat vessels’ as exclusive property under the jurisdiction of the nation whose flag they sail under. Said Webster: “A vessel on the high seas, beyond the distance of a marine league from the shore, is regarded as part of the territory of the nation to which she belongs, and subjected, exclusively to the jurisdiction of that nation.”

    This is the authority for Congress to require vessels to carry necessary medications for seamen, or tax seamen wages to provide for hospitalization in case of sickness. None of this has anything to do with the Commerce Clause.

    Marshall in Gibbons v. Ogden points out that the marine power of the nation and the regulation of foreign commerce were placed in the same hands: “The provisions of the law respecting native seamen and respecting ownership are as applicable to vessels carrying men as to vessels carrying manufactures, and no reason is perceived why the power over the subject should not be placed in the same hands.”

    In United States v. South-Eastern Underwriters (1944), Justice Hugo Black made a rather lame attempt to show the regulation of commerce included the business of insurance by completely misconstruing what Alexander Hamilton wrote in his 1791 opinion on the constitutionality of the Bank of the United States.

    In footnote, Black quotes Hamilton’s words, “admit of little if any question” to falsely assert Hamilton was suggesting the “federal power to regulate foreign commerce included ‘the regulation of policies of insurance.'” Justice Black omits the important fact that Hamilton was not directly describing the regulation of foreign commerce but speaking of the nations maritime power for which such insurance over shipping falls.

    In his opinion, Hamilton said the regulation of commerce comes under four headings for which the business of insurance does not fall under because Hamilton describes the power as a taxing power with the incidental power to aid the collection (customhouses):

    1. To prohibit them (nations) or their commodities from our ports (imposing prohibitory duties or embargo).
    2. To impose duties on them where none existed before, or to increase existing duties on them.
    3. To subject them to any species of custom house regulation.
    4. To grant them any exemptions or privileges which policy may suggest (low or no duties on particular articles or tonnage).

    After highlighting these four proper headings of regulating foreign commerce, Hamilton argues these headings “omits every thing that relates to the citizens, vessels, or commodities, of the United States.” Hamilton then goes into a laundry list of omissions that turns out to be those exact powers exercised by nations under their maritime jurisdiction, example: “The regulation of policies of insurance; of salvage upon goods found at sea; and the disposition of such goods.” And, “[o]f the power of regulating the manner of contracting with seamen, the policies of ships on their voyages, &c. of which the act for the government and regulation of seamen in the merchant service is a specimen.”

    It is obvious from Hamilton’s list of omitted powers he was speaking of those powers exercised over marine affairs since little, if any, had any direct application to dry land. Additionally, these powers had no connection to laying taxes on articles of import which Hamilton himself had acknowledged was the sole method of regulating commerce.

    Maritime jurisdiction would exist without any mention of regulating commerce because it is a custom of all mercantile nations for the national power to manage affairs of the sea. On the other hand, Congress could not regulate commerce without being specifically empowered because otherwise it would have been a reserved power remaining with each State to exercise like they had after the revolution and because it isn¡¯t a part of law of nations.


    The power to proscribe what articles of imports shall be restricted or prohibited through the laying of duties on imports for purposes of protecting or promoting American manufactures and the rules for executing this power was the only power acknowledged, approved and adopted. Rules for executing this power can include customhouse regulations, pilotage, forfeitures, laws against smuggling (avoiding customs), navigation points, etc.

    Because the power acts only on commercial intercourse “between” separate powers, limits the power to importation and anything that could burden the introduction of imports through taxes. Only Congress is authorized to burden the introduction of foreign imports.

    The sole purpose behind the regulation of commerce ¡°between¡± powers being for the promotion or protection of manufactures against foreign competition dispels the judicial fable of internal economic activities or markets of States is related to the commercial intercourse “between” them.

    This explains why Congress never showed any interest over internal commercial activities among the States or their markets as evidenced by the lack of any laws over the subject or acts of acquiring and maintaining vital data over commerce among the States. On the other hand, the entire interest of the nation, as a nation, was with foreign commerce where rules were made and statistics kept.

    As a consequence of the power to regulate commerce among the States being void of any affirmative powers for Congress to exercise over the States, and because the power is limited to laying a tax on imports, the power cannot be appealed to in order to make any act of Congress over markets or commerce of the States necessary and proper.

    For the court to deny the purpose, custom and usage of the term “to regulate commerce” “between” States and nations in order to continue empowering Congress with greater authority over the States to do what is forbidden is repugnant to the Constitution.

    Finally, I’ll leave the last word to Justice Story:

    “If the constitution is to be only what the administration of the day may wish it to be, and is to assume any and all shapes which may suit the opinions and theories of public men, as they successively direct the public councils, it will be difficult, indeed, to ascertain what its real value is. It cannot possess either certainty, or uniformity, or safety. It will be one thing today, and another thing tomorrow, and again another thing on each succeeding day. The past will furnish no guide, and the future no security.

    “It will be the reverse of a law, and entail upon the country the curse of that miserable servitude so much abhorred and denounced, where all is vague and uncertain in the fundamentals of government.”

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