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Federal Jurisdiction

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What Powers does the Federal Government have within the Several States?

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By David L. Miner

 

 

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/Jurisdiction – A government’s general power to exercise authority over
all persons and things within its territory./ [Black’s law Dictionary,
Second pocket Edition]

The concept of jurisdiction is often one involving great confusion on
the part of the American people. But it is always a matter of
presumption on the part of the federal government. Meaning, in today’s
America, that Congress and the President make the assumption that they
have the jurisdiction to do what they want when they want within the
several States. No thought is given to the Constitution and the
limitations it places on the central government because any discussion
of these limitations would reduce or eliminate the power circles created
by these offices and the people in them. In other words, the federal
government is committed to continuing its pursuit of more and more
power, regardless of the Constitution.

In this document, we will address the concept of jurisdiction and the
limits implied and stated by that concept. We will discuss the US
Supreme Court’s determinations as they relate to Constitutional
limitations. We will also address what We The People can do.

To properly understand jurisdiction, we must first properly understand
the nature of the Constitution. The Constitution was a contract created
between the States and the People. Because of the near-totalitarian
controls over the "colonies" that had just been overthrown in the
Revolution, both the People and their leaders were very concerned about
the nature of this new central government and what its limits should be.
So the people and their leaders, both were Parties to this contract,
were concerned about two primary problems. First, both Parties were
concerned about giving up or losing certain rights and powers that each
currently possessed. Second, both Parties were concerned about the
central government remaining under control and not becoming so powerful
that it saw itself as being in control of the People or the States. In
other words, both the People and the States were very concerned that the
central government would be granted only certain powers, and that both
the People and the States would be able to retain their liberty and
their sovereignty.

These concerns were written into a contract that seemed to protect the
rights and powers of the States and the People, while at the same time
delegated certain powers to a central government. That contract created
the central government. It was called the Constitution for the United
States.

This Constitution gave no rights to anyone – no rights were granted to
the States, to the People and especially not to the central government.
All rights were viewed as being given to the People by the Creator, so
the People didn’t need the central government to grant them anything.
Further, since the States existed as sovereign entities before the
Constitution was written, the central government created by that
Constitution could not grant anything to the States.

The Constitution did, on the other hand, grant certain responsibilities
to the central government. These responsibilities were spelled out
clearly in the Sections and paragraphs of the Constitution. Further, as
in all contract law, it was clearly understood by all involved that the
Constitution delegated to the central government */_only_/* those powers
that were specifically listed. This legal doctrine was spelled out more
clearly when the States and the People voted to add the Bill of Rights
to the Constitution. The Tenth Article in the Bill of Rights
specifically clarified that any power not explicitly granted to the
central government was explicitly withheld from the central government.

This, the Founding Fathers hoped, rendered clear and immutable the issue
of federal jurisdiction. Alas, it did not. But we digress.

When the Constitution granted powers and responsibilities to the central
government, jurisdiction over those issues was also granted. For
example, Article One of the Constitution defined, described and limited
the Congress. There is a long list of specific responsibilities assigned
to the Congress, and then there is a specific clause at the end of
Article One that stated:

"…And to make all Laws which shall be necessary and proper for carrying
into Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Office thereof." (Article I, Section 8, last paragraph of
that Section)

So Congress is defined, described, assigned responsibilities, and then
given the authority to pass any laws necessary to carrying out its
responsibilities. This seems simple enough, right?

Yet a careful reading of the Constitution would show that there is
absolutely no responsibility given to Congress that required the
Congress to operate within the Several States. Let me repeat that.
Article I Section 8 lists all the responsibilities given to Congress,
and absolutely no responsibilities delegated to Congress required them
to operate within the States, or gave it power that would penetrate the
States. The obvious exception to the above statement is the issue that
Congress uses to usurp power and encroach into the States. Let’s talk
about that exception.

Actually, there are two exceptions to the limits placed on Congress. The
first exception gives Congress the authority to regulate commerce
between the States.

The Congress shall have Power… To regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes…"
Article I, Section 8, Clause 3

This section, usually called the Interstate Commerce Clause, is */the
only section in the entire Constitution that gives Congress power over
the States./*

*//*

The second exception gives Congress the authority to deal with specific
crimes that would involve individuals. Counterfeiting, piracy and
espionage are the only crimes that Congress was given authority over.
*/These are the only issues in the entire Constitution where Congress
has power over We The People./*

*//*

Naturally, the Constitution gave the central government authority over
the many and varied responsibilities delegated to it. The Congress was
given the authority to declare war, to coin money, to raise revenue, and
many other authorities. The Executive was given the authority to "rule"
the national seat of government. That parcel was to be limited to ten
miles by ten miles, and all authority and jurisdiction relative to that
land and the people in it were delegated to the Executive. The Judicial
was given the authority to settle arguments between the States, and,
under certain situations, to settle arguments between the States and the
People.

But the powers were carefully defined, and jealously guarded by the
States and the People.

See, e.g., 2 Debates 267-268 (A. Hamilton at New York convention) that
there would be just cause for rejecting the Constitution if it would
enable the Federal Government to "alter, or abrogate . . . [a state's]
civil and criminal institutions [or] penetrate the recesses of domestic
life, and control, in all respects, the private conduct of individuals")
[quoted in */United States v Lopez/*]

"The administration of private justice between the citizens of the same
State, the supervision of agriculture and of other concerns of a similar
nature, all those things in short which are proper to be provided for by
local legislation, can never be desirable cares of a general
jurisdiction." /Federalist Papers # 17/

"Each State, in ratifying the Constitution, is considered as a sovereign
body, independent of all others, and only to be bound by its own
voluntary act. In this relation, then, the new Constitution will, if
established, be a FEDERAL, and not a NATIONAL constitution. ... The
powers delegated by the proposed Constitution to the federal government
are few and defined. Those which are to remain in the State governments
are numerous and indefinite. The former will be exercised principally on
external objects, as war, peace, negotiation, and foreign commerce...
The powers reserved to the several States will extend to all the objects
which, in the ordinary course of affairs, concern the lives, liberties,
and properties of the people, and the internal order, improvement and
prosperity of a State."/Federalist Papers # 45/

" The [federal] government is acknowledged by all to be one of
enumerated powers. The principle that it can exercise only the powers
granted to it . . . is now universally admitted. But the question
respecting the extent of the powers actually granted is perpetually
arising, and will probably continue to arise, as long as our system
shall exist." [Chief Justice Marshall in */McCulloch v. Maryland/*, 4
Wheat. 316 (1819)]

For almost one hundred years, the central government knew its place and
stayed there. But President Abraham Lincoln violated the Contract by
invoking a power over the States not listed in the Constitution, not
granted to the central government. President Lincoln believed that the
need to maintain the confederation of States was far more important than
obeying the Contract which created that federation of States, and which
created his job. So he declared war on the Southern States rather than
let them secede from the United States. This violation of the
Constitution began a long list of additional violations by almost every
President and Congress since that time.

While there have been a few overtly unconstitutional bills passed into
law during these past 140 years, most of the Constitutional excesses
have been justified by twisting the Interstate Commerce Clause into
saying something far different than the Founders intended.

Interstate Commerce came to include manufacturing, if it was possible
that whatever was being manufactured might possibly someday be sold to
someone in another State. This gave rise to the federal government
creating all sorts of rules and regulations controlling manufacturers,
including health, safety, environmental and wage issues.

Interstate Commerce came to include farming, if it was possible that
whatever was being raised might possibly someday be sold to someone in
another State. This gave rise to a whole host of rules and regulations
over farmers, including fertilizer content, seed origin, farming
methods, crop quantity and land use issues.

And Interstate Commerce came to include individual actions and ownership
if it could be construed that the action or ownership might some day in
some way impact on Interstate Commerce. This gave rise to a whole host
of rules and regulations, including speed limits, blood alcohol content,
gun ownership and gun possession, driver and automobile registration,
retirement, employment, voting, insurance and taxation issues.

Often Congress stopped short of actually passing laws that were
tenuously linked to the Interstate Commerce Clause. Instead of passing a
law mandating a result which they knew would be overturned by the
Supreme Court as unconstitutional, Congress would often pass a
recommendation or guideline, and then force the States to comply with
it. Examples of this include coercing the States to reduce speed limits,
or more recently reduce the blood alcohol level that is deemed
acceptable while driving. The big stick the central government used to
force the States to "volunteer" to obey the dictates of Congress was the
loss of millions in tax dollars for failure to comply.

Some laws were just too unconstitutional to pass muster, and the Supreme
Court would strike the law. This happened very seldom, but it did
happen, for many years following the War Between the States. But while
the Supreme Court would, for the most part, officially maintain the
doctrine of limited powers to which the central government is subjected
by the Constitution, the Court would often ignore the increasing size
and scope of government powers. Yet even though the Court would often
side with the increasing authority that the central government gave
itself, here and there were cases that gave a refreshing confirmation of
the Constitution and its limitations.

"Our national government is one of delegated powers alone. Under our
federal system the administration of criminal justice rests with the
States except as Congress, acting within the scope of those delegated
powers, has created offenses against the United States." [*/Screws v.
United States/*, 325 U.S. 91, 109 (1945)]

Recently, however, the Supreme Court has begun to render decisions much
more consistent with the clear meaning and intent of the Constitution.
What started as a slight twisting of the Interstate Commerce Clause in
order to justify usurping authority over an increasing number of issues
has, over the past 60 years, become a clear and intentional corruption
of the Founders’ intentions. Thankfully, the Supreme Court has decided
to wake up and address this egregious fraud on the part of Congress and
the President.

One clear example of the Supreme Court coming down on the side of States
Rights was the recent decision involving the /_Violence Against Women
Act_/. The Act granted to women the "right" to sue their attacker in
federal civil court if the criminal court could not or did not convict
him. The case was */United States v. Morrison/*/,/ 169 F.3d 820 (1999) .
In this case, the Supreme Court overturned a segment of the Act,
resulting in women all over America claiming that the Court just
declared open season on women. But this is not what happened.

In the */United States v Morrison/*, the Supreme Court basically claimed
that the federal government had no jurisdiction over crimes committed
within the 50 States. Therefore, could not grant women any authority to
file suit in federal courts for a crime committed within one of the
several States. The Court’s opinion observed accurately that women still
had the pre-existing right to file suit in State civil court, but could
not file suit in federal civil court.

Please read that again. _The US Supreme Court admitted that the federal
government had no authority or jurisdiction over crimes committed within
the several States_. While this statement is not a new revelation by the
Supreme Court, it was misunderstood or just plain missed by the Patriot
Movement.

But four years earlier, in 1995, the Supreme Court handed down an
incredibly important decision. The case was */United States v. Lopez/*,
115 S.Ct. 1624 (1995), and was, I believe, the most important Supreme
Court decision in the 1900s. This case was extremely broad and
far-reaching in both its logic and in its case law. The */Lopez/* Court
reviewed most of the clear attempts on the part of Congress to usurp
authority it did not have, based on a perverted view of the Interstate
Commerce Clause, and it attempted to put Congress back in its place.

The */Lopez/* decision clearly established that the Supreme Court and
the Congress had, for more than 60 years, exceeded the obvious
intentions of the Interstate Commerce Clause. The Court used more than
100 pages to analyze the past Court decisions and to pronounce that
Congress must abide by the limitations classically understood to be
contained in that clause.

"'But law in the sense in which courts speak of it today does not exist
without some definite authority behind it. The common law so far as it
is enforced in a State, whether called common law or not, is not the
common law generally but the law of that State existing by the authority
of that State without regard to what it may have been in England or
anywhere else. ... 'The authority and only authority is the State, and
if that be so, the voice adopted by the State as its own (whether it be
of its Legislature or of its Supreme Court) should utter the last word.'
Thus the doctrine of Swift v. Tyson is, as Mr. Justice Holmes said, 'an
unconstitutional assumption of powers by the Courts of the United States
which no lapse of time or respectable array of opinion should make us
hesitate to correct.' In disapproving that doctrine we do not hold [304
U.S. 64, 80] unconstitutional section 34 of the Federal Judiciary Act of
1789 or any other act of Congress. We merely declare that in applying
the doctrine this Court and the lower courts have invaded rights which
in our opinion are reserved by the Constitution to the several states."
[*/United States v. Lopez/*]

"Were the Federal Government to take over the regulation of entire areas
of traditional state concern, areas having nothing to do with the
regulation of commercial activities, the boundaries between the spheres
of federal and state authority would blur and political responsibility
would become illusory." Justice Kennedy in his concurring opinion,
*/United States v. Lopez/*//)

"To be sure, one conclusion that could be drawn from The Federalist
Papers is that the balance between national and state power is entrusted
in its entirety to the political process. Madison's observation that
"the people ought not surely to be precluded from giving most of their
confidence where they may discover it to be most due," The Federalist
No. 46, p. 295 (C. Rossiter ed. 1961), can be interpreted to say that
the essence of responsibility for a shift in power from the State to the
Federal Government rests upon a political judgment, though he added
assurance that "the State governments could have little to apprehend,
because it is only within a certain sphere that the federal power can,
in the nature of things, be advantageously administered... " [Justice
Kennedy in his concurring opinion, */United States v. Lopez/*]

"The exchanges during the ratification campaign reveal the relatively
limited reach of the Commerce Clause and of federal power generally. The
Founding Fathers confirmed that most areas of life (even many matters
that would have substantial effects on commerce) would remain outside
the reach of the Federal Government. Such affairs would continue to be
under the exclusive control of the States." [Justice Thomas in his
concurring opinion, */United States v. Lopez/*]

The Supreme Court quoted from dozens of previous Court decisions that
showed how Congress had stretched further and further the clear intent
of the Constitution. The Court used these cases to demonstrate that
there was a strong tradition of conservative interpretation of the
Commerce Clause throughout the history of the Supreme Court, and that it
was merely returning to the true meaning of the Constitution.

"[T]he Constitution divides authority between federal and state
governments for the protection of individuals. State sovereignty is not
just an end in itself…" [*/New York v. United States/*, quoted in
*/United States v. Lopez/*]

"The enumeration presupposes something not enumerated." [*/Gibbons v.
Ogden/*, 9 Wheat., at 195, quoted in */United States v. Lopez/*]

Except in matters governed by the Federal Constitution or by acts of
Congress, the law to be applied in any case is the law of the state. And
whether the law of the state shall be declared by its Legislature in a
statute or by its highest court in a decision is not a matter of federal
concern. There is no federal general common law. Congress has no power
to declare substantive rules of common law applicable in a state whether
they be local in their nature or 'general,' be they commercial law or a
part of the law of torts. And no clause in the Constitution purports to
confer such a power upon the federal courts. [*/Erie R. Co. v.
Tompkins/*, 304 U.S. 64 (1938), quoted in */United States v. Lopez/*]

"I am aware that what has been termed the general law of the
country-which is often little less than what the judge advancing the
doctrine thinks at the time should be the general law on a particular
subject-has been often advanced in judicial opinions of this court to
control a conflicting law of a state. I admit that learned judges have
fallen into the habit of repeating this doctrine as a convenient mode of
brushing aside the law of a state in conflict with their views. And I
confess that, moved and governed by the authority of the great names of
those judges, I have, myself, in many instances, unhesitatingly and
confidently, but I think now erroneously, repeated the same doctrine.
But, notwithstanding the great names which may be cited in favor of the
doctrine, and notwithstanding the frequency with which the doctrine has
been reiterated, there stands, as a perpetual protest against its
repetition, the constitution of the United States, which recognizes and
preserves the autonomy and independence of the states,- independence in
their legislative and independence in their judicial departments.
Supervision over either the legislative or the judicial action of the
states is in no case permissible except as to matters by the
constitution specifically authorized or delegated to the United States.
Any interference with either, except as thus permitted, is an invasion
of the authority of the state, and, to that extent, a denial of its
independence." [*/Baltimore & Ohio R.R. Co. v. Baugh/*, 149 U.S. 368,
401, as quoted in */United States v. Lopez/*]

"Just as the separation and independence of the coordinate branches of
the Federal Government serve to prevent the accumulation of excessive
power in any one branch, a healthy balance of power between the States
and the Federal Government will reduce the risk of tyranny and abuse
from either front. . . . In the tension between federal and state power
lies the promise of liberty." [*/Gregory v. Ashcroft/*, 501 U.S. 452,
458-459 (1991), , quoted in */United States v. Lopez/*]

But perhaps the most important issue discussed in the */Lopez /* case
was the concept of federal police power within the several States. The
Court clearly established, perhaps for the first time since the founding
of this nation, that authority for police power rests not in what type
of crime was committed (State versus federal) but where the crime was
committed (within the boundaries of federal territory or within the
boundaries of a State).

"We have said that Congress may regulate not only ‘Commerce . . . among
the several states,’ U.S. Const., Art. I, 8, cl. 3, but also anything
that has a ‘substantial effect’ on such commerce. This test, if taken to
its logical extreme, would give Congress a ‘police power’ over all
aspects of American life. Unfortunately, we have never come to grips
with this implication of our substantial effects formula. Although we
have supposedly applied the substantial effects test for the past 60
years, we always have rejected readings of the Commerce Clause and the
scope of federal power that would permit Congress to exercise a police
power; our cases are quite clear that there are real limits to federal
power… Indeed, on this crucial point, the majority and Justice Breyer
agree in principle: the Federal Government has nothing approaching a
police power." [Justice Thomas in his concurring opinion, */United
States v. Lopez/*]

"Even before */Gibbons/*, Chief Justice Marshall, writing for the Court
in */Cohens v. Virginia/*, 6 Wheat. 264 (1821), noted that Congress had
‘no general right to punish murder committed within any of the States,’
id., at 426, and that it was ‘clear that congress cannot punish felonies
generally,’ id., at 428. The Court's only qualification was that
Congress could enact such laws for places where it enjoyed plenary
powers - for instance, over the District of Columbia. Id., at 426. Thus,
whatever effect ordinary murders, or robbery, or gun possession might
have on interstate commerce (or on any other subject of federal concern)
was irrelevant to the question of congressional power." [Justice Thomas
in his concurring opinion, */United States v. Lopez/*]

*//*

"The Constitution mandates this uncertainty by withholding from Congress
a plenary police power that would authorize enactment of every type of
legislation." [*/United States v. Lopez/*]

"If we wish to be true to a Constitution that does not cede a police
power to the Federal Government, our Commerce Clause's boundaries simply
cannot be ‘defined’ as being ‘"commensurate with the national needs"’ or
self-consciously intended to let the Federal Government ‘"defend itself
against economic forces that Congress decrees inimical or destructive of
the national economy."' See post, at 12-13 (BREYER, J., dissenting)
(quoting */North American Co. v. SEC/*, 327 U.S. 686, 705 (1946)). Such
a formulation of federal power is no test at all: it is a blank check."
[Justice Thomas in his concurring opinion, */United States v. Lopez/*]

The Patriot Movement in general has staked its purpose on the
foundational issue that the central government is one of limited powers
created by a Constitution that defines the government and limits its
powers. Further, it claims that this central government has vastly
exceeded its limitations.

Here the Patriot Movement is absolutely right.

But the Patriot Movement in general has seen its abilities to fight this
government it claims is out of control as being drastically limited by
the Supreme Court.

Here the Patriot Movement is absolutely wrong.

Properly constructed, the Supreme Court has given us all the tools we
need to fight the unlawful expansion of federal powers, and fight it
successfully. But for some reason we have ignored incredibly important
Supreme Court decisions in forming our strategies and in formulating our
court battles.

The Supreme Court has declared, both historically and recently, that the
federal government has no authority or jurisdiction over any individual
or over any issue that does not involve interstate commerce or over any
issue that does not involve federal territory. Congress can pass no laws
that govern life or activities within the boundaries of the several
States. The President can enforce no laws that govern life or activities
within the boundaries of the several States. And the federal courts can
punish no individuals who violate these unconstitutional laws.

Americans, and especially the several States, must realize that States
Rights has a friend in the current Supreme Court. We must realize that
the Supreme Court has established the clear and long-standing doctrine
of limited federal authority.

Americans must realize that the federal government can only violate
these clear Constitutional limitations when and if We The People
voluntarily submit to its unlawful laws and mandates. We must take the
responsibility to learn what we must learn and hold the federal
government accountable to these limitations, and we must commit the
financial resources to finish this battle, or the only option to
increasing federal tyranny is revolution.

/

"If a nation expects to be ignorant and free, it expects what never was
and never will be... The People cannot be safe without information." --
Thomas Jefferson

 

 

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by David L. Miner

DMiner@FreedomSite.net <mailto:Dminer@FreedomSite.net>

www.FreedomSite.net <http://www.FreedomSite.net/>

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