Fundamental First Principles of Taxation
Frequent recurrence to fundamental principles is essential
to the security of individual rights and the perpetuity of free government.
Constitution for the State of Utah, Article I, Section 27
No. 1 – “An act of legislature (for I cannot call it a law) contrary to the great first principles of the social compact, cannot be considered a rightful exercise of legislative authority. The obligation of a law in governments established on express compact, and on republican principles, must be determined by the nature of the power, on which it is founded. A few instances will suffice to explain what I mean. …; a law that takes property from A and gives it to B. It is against all reason and justice, for a people to entrust a legislature with such power; and therefore, it cannot be presumed that they have done it. … To maintain that our Federal, or State, legislature possesses such powers, if they had not been expressly restrained; would in my opinion, be a political heresy, altogether inadmissible in our free republican governments.
… With very few exceptions, the advocates of such laws were stimulated by ambition, or personal resentment, and vindictive malice.”
Calder vs. Bull, 3 Dallas 386, 388, 389
No. 2 – Article I, Section 8 of the Constitution outlines the powers delegated to the congress. Among those powers is the ones related to taxes as contained in the language of Section 8. “The Congress shall have Power to lay and collect Taxes, duties, Imposts and Excises, . . .; but all Duties, Imposts and Excises shall be uniform throughout the United States.” “. . . No capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
In these two clauses and one other to power to tax. This power includes the Income Tax. This power is not to be construed to be unlimited. Far from that, for the powers of taxation is limited by the extent of the legislative powers as described in clause 17 of Section 8 which will be discussed.
“LIMITATIONS OF GOVERNMENTAL AUTHORITY . . . .”
The basic principles of our republic as outlined in the Constitution regarding taxation have been forgotten. The following facts and principles are essential in understanding federal tax legislation. Some of these principles are:
1. This Nation was not founded upon the principles of a democracy, in that the right to life, liberty, and property are not subject to majority vote. The government for the union was formulated upon republican guide lines. We elect Congressmen to run the affairs of the Federal States as those powers and authorities are delegated in the Constitution.
2.When the people and government are set side-by-side, it is the people who are sovereign. It is the people who have created the government, and it is only those powers which the people hold in common that can be given to government. The proposition is believed by some that if the Constitution does not forbid the act, Congress can operate the act. This is false. The Constitution is a document of expressed powers.
3. The territorial jurisdiction of Congress is expressly limited by the Constitution to, as Supreme Court Justice Rhenquist stated: “. . . Congress has plenary power over the District of Columbia and the territories. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.”
Article I, Section 8 of the Constitution outlines the powers delegated to the congress. Among those powers is the ones related to taxes as contained in the language of Section 8. “The Congress shall have Power to lay and collect Taxes, duties, Imposts and Excises, . . .; but all Duties, Imposts and Excises shall be uniform throughout the United States.” “. . . No capitation, or other direct, tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
In these two clauses and one other to power to tax. This power includes the Income Tax. This power is not to be construed to be unlimited. Far from that, for the powers of taxation is limited by the extent of the legislative powers as described in clause 17 of Section 8 which will be discussed.
Jurisdiction of the Federal United States.
To understand the scope of government’s jurisdiction it is important to know from what sources the authority of government comes from and the areas over which it has jurisdiction. Three sources are: 1) the Constitution; 2) the government’s status as a sovereign, and; 3) contract.
The most misunderstood and frightening concept of law, shied away from by the legal profession is the challenge of jurisdiction. Jurisdiction is what gives the government, courts, IRS, etc. power or authority over objects and people. Any other jurisdictional authority, other than that mentioned either comes by way of conquest or the second party ceding the jurisdiction to the first party.
Jurisdiction. . .
The limits or territory within which authority may be exercised.
In respect to this jurisdiction, there is a different approach to legislation when Congress is legislating for the territories then for the States. The Hooven & Allison Co. Case dealt with commerce with a territory. Here in this opinion, the Court recognized that difference.
The United States Constitution and Federal Jurisdiction.
The Constitution is a document created by the people in order to secure their freedoms which were recently won after a bitter conflict with England. The Constitution now establishes a compact of the various States (13) creating a Federal government with the sole purpose of: 1) forming a more perfect Union (the Articles of Confederation at that time were dependent upon the States to preform); 2) establish justice; 3) insure domestic tranquility; 4) provide for the common defense; 5) promote the general welfare, and 6) secure the blessings of liberty.
“As in our intercourse with our fellow-men certain principles of morality are assumed to exist, without which society would be impossible, so certain inherent rights lie at the foundation of all actions, and upon a recognition of them alone can free institutions be maintained. These inherent rights have never been more happily expressed than in the Declaration of Independence, that new evangel of liberty to the people: ‘We hold these truths to be self-evident’ — that is so plain that their truth is recognized upon mere statement — ‘that all men are endowed’ — not by edicts of Emperors, or decrees of Parliament, or acts of Congress, but ‘by their Creator with certain inalienable rights’ — that is, rights which cannot be bartered away, or given away, or taken away except in punishment of crime — ‘and that among these are life, liberty, and the pursuit of happiness, and to secure these’ — not grant them but secure them — ‘governments are instituted among men, deriving their just powers from the consent of the governed.’”
Our government’s jurisdiction over object finds its source from several places. Since the Constitution is the compact which established the Federal Government it is essential to first look there. The Constitution determines the scope of Federal jurisdiction and this is found is Article I, Section 8. Section 8 is the basic “powers” section in that is spells out the authority of Congress, to wit: 1. Lay and collect taxes, duties, imposts and excises. 2. Borrow money 3. Regulate commerce with foreign nations, among the States, and with the indian tribes.4. Establish rules for naturalization, and bankruptcies 5. Coin money, regulate the value, and fix the standard of weights and measures 6. Punish counterfeiting 7. Establish post offices and post roads 8. Protect the authors and inventors with copyright and patent laws. 9. Set up the federal court inferior to the supreme court. 10. Punish piracies and felonies committed on the seas. 11. Declare war, etc. 12. Raise and support armies.13. Provide for the navy. 14. Regulate the armed services 15. Provide for the militia. 16. Work with the States in organizing the militia. 17. Exercise exclusive jurisdiction over government land, e. g.; Washington, D.C. 18.
“Necessary and Proper” clause where Congress can make laws to assist them in the forementioned powers; It is perceived by many that the Federal Government has complete jurisdiction over the entire Union of States. This is not true. Jurisdiction is a characteristic of the sovereign and the Federal Government has no inherent sovereign powers. The territorial jurisdiction of the Federal Government (United States ) is limited and defined. Congressional authority to tax has restrictions and these limitations have been set by the Constitution and the fundamental rights of the people. Clause 17 of Section 8 defines the territory over which the Federal Government has exclusive jurisdiction. “The Congress shall have power . . . To exercise exclusive Legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the Seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings;”
This concept of territorial jurisdiction received added clarity by a recent Supreme Court decision in U.S. v Lopez, (No. 93-1260) decided April 26, 1995. The decision was given by Chief Justice Rehnquist as the case centered around the abuse of Congressional authority in relationship to the Commerce Clause contained in the Constitution. The central theme conveyed by this decision was that there are limits to Congressional authority. Justice Thomas treats this concept even more in quoting from a 1992 decision (New York v United States, 505 U.S. _,_) wherein Justice O’Connor wrote: “‘No one disputes the proposition that the Constitution created a Federal Government of limited powers’ (cited quotes omitted). It must necessarily be so, because the United States (government) has no claim to any authority but such as the States have surrendered to them.’ . . . Indeed, on this crucial point, the majority and Justice Breyer agree in principle: the Federal Government has nothing approaching a police power.” Continuing, Justice Thomas makes clear that: “. . . Congress has plenary power over the District of Columbia and the territories. The grant of comprehensive legislative power over certain areas of the Nation, when read in conjunction with the rest of the Constitution, further confirms that Congress was not ceded plenary authority over the whole Nation.”
An earlier case before the Supreme Court involved Congressional legislation regarding commerce coming in from the Philippines to the United States. When this legislation was the challenged, the Court concluded that, “[I]n exercising this power, Congress is not subject to the same constitutional limitations, as when it is legislating for the (u)nited States.” (p. 674) This comment conforms with the sovereign position that the Federal United States holds over the territories, being consistent with the with the authority given by the people and States via the Constitution. In essence, the legislative authority of Congress is plenary (full and complete) ONLY within its’ sphere of activity.
In his veto, Madison said, in part: “The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers….”
Regarding the general welfare phrase specifically, he said: “To refer the power in question to the clause ‘to provide for the common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause as nugatory [of no effect] and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them. . . .”
President James Monroe echoed Madison’s analysis, and added some reservations of his own, in vetoing a bill for maintaining the Cumberland Road in 1822. He denied that Congress had the power to do this. “If the power exist,” he said, “it must be either because it has been specifically granted to the United States or that it is incidental to some power which has been granted. If we examine the specific grants of power we do not find it among them, nor is it incidental to any power which has been specifically granted.” Among those from which he could not trace the power, he declared, was the clause “to pay the debts and provide for the common defense and general welfare.” In an added paper to his veto message, Monroe included this thought: “Have Congress a right to raise and appropriate the money to any and to every purpose according to their will and pleasure? They certainly have not,” he declared, “The Government of the United States is a limited Government, instituted for great national purposes, and for those only.”
To repeat Section 8 cl. 17; “The Congress shall have power . . . To exercise exclusive Legislation in all cases whatsoever, over such District(not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the Seat of Government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards and other needful buildings;”
Outside these Constitutionally set limits, Congress has no other jurisdiction. Note again what Justice O’Connor says; “. . . the United States (government) has no claim to any authority but such as the States have surrendered to them.” And what powers did the States give to the Federal Government? The only powers given to the Federal Government were done so by the people, not the States.; The legislative authority delegated by the people to the Federal government can only be exercised within lands ceded to it by the States. Any idea that the authority for the Federal government to act in any capacity within the sovereign States because of delegated authority via the Constitution from the States is As Chief Justice Marshall explained in M’Cullock vs. Maryland at page 402 In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the constitution, to consider that instrument not as emanating from the people, but as the act of sovereign and independent States. The powers of the general government, it has been said, are delegated by the States, who are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme dominion. It would be difficult to sustain this proposition.
The Convention which framed the constitution was indeed elected by the State legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that it might “be submitted to a Convention of Delegates, chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent and ratification.”
This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States – and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the State governments.
From these Conventions the constitution derives its whole authority. The government proceeds directly from the people; is “ordained and established” in the name of the people; and is declared to be ordained, “in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure to blessings of liberty to themselves and to their posterity.” The assent of the States, in their sovereign capacity, is implied in calling a Convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the State governments. The Constitution, when thus adopted, was of complete obligation, and bound the State sovereignties.
The States can only give to the Federal Government, by ceding, via legislation, legislative jurisdiction to act within the sovereign States. The fact that one State cannot confer a sovereignty that would extend over an other State is also well explained by the Chief Justice. The sovereignty of a State extends to every thing which exits by its own authority, or is introduced by its permission; but does it extend to those means which are employed by Congress to carry into execution powers conferred on that body by the people of the United States? We think it demonstrable that it does not. Those powers are not given by the people of a single State.They are given by the people of the United States, to a government whose laws, made in pursuance of the constitution, are declared to be supreme. Consequently, the people of single State cannot confer a sovereignty which will extend over them.
As it is with the Federal Government, so it is with the individual States of the Union. Speed limits vary from State to State. The jurisdictions of the various States are separate and distinct from the Federal Government. A familiar example is the “tax exempt” status of federal property within the state. “There is no such thing in the theory of our national government as unlimited power of taxation in Congress. There are limitations of its powers arising out of the essential nature of all free government; there are reservations of individual rights, without which society could not exist, and which are respected by every government. The right of taxation is subject to these limitations.”
Justice O’Connor expressed a like opinion when deciding the extent of Congressional authority under the commerce clause saying: “Congress exercises its conferred powers subject to the limitations contained in the Constitution. Thus, for example, under the Commerce Clause Congress may regulate publishers engaged in interstate commerce, but Congress is constrained in the exercise of that power by the First Amendment.””The canon of construction which teaches that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States, is a valid approach whereby unexpressed congressional intent may be ascertained.”
Think carefully upon the words of Chief Justice Warren’s comments in Lucas vs. Forth-Fourth General Ass’n of Colorado; “As stated by this Court in West Virginia State Bd. Of Educ. v. Barnette, 319 U.S. 624, 638, ‘One’s right to life, liberty, and property . . . and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.’ A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.” (p. 737)
The natural rights of Americans in the possession and use of property is not the subject of a majority vote, or the jurisdiction of the Corporate United States. In connection with the constitutional limits of Congress comes the basic jurisdictions recognized by the cll bow to the dictation of Congress by conforming their legislation thereto, when the power and majesty and honor of those who created shall become subordinate to the thing of their creation, I feebly utter my apprehensions when I express my firm conviction that we shall see ‘the beginning of the end.” (p. 606)
“I can not but repeat what I have before expressed, that if the several States, . . . , shall be led to suppose, as, . . . , they will be, that Congress is to make provisions for such courts.”
There was a comment made by President Pierce in his veto message to the Senate quoted by Justice McReynolds warning of the increase power of the federal government over the States. “If the time shall ever arrive when, for an object appealing, however strongly, to our sympathies, the dignity of the States shabjects, the fountains of charity will be dried up at home, and the several States, instead of bestowing their own means on the social wants of their own people, may themselves, through the strong temptation which appeals to states as to individuals, become humble suppliants for the bounty of the Federal Government, reversing their true relations to this Union.(p. 607)
Addendum items include a treatise on federal jurisdiction by the NCBA. Also a report was prepared by the Interdepartmental Committee for the study of jurisdiction over federal areas within the States set up by the Attorney General and approved by the President. The latter report was prepared in December, 1954 and discloses several important facts about federal legislative jurisdiction within the States. 1. When the State(s) cede exclusive legislative jurisdiction over an area within its boarders the jurisdiction of the State is “ousted.” . . . “Thereafter only Congress has authority to legislate for the area. . . . Persons and property on exclusive jurisdiction areas are not subject to State or local taxation except as Congress has permitted . . .”2. Under concurrent legislative Jurisdiction, both the “federal government and the State, occupy an area, each having all the rights accorded a sovereign with the broad qualification that such rights run concurrently with those of the other sovereign.”
3. Partial legislative jurisdiction “. . .status occurs where the State grants to the federal government the authority to exercise certain State powers within an area but reserves for the exercise only by itself, or by itself as well as the Federal Government, other powers constituting more than merely the right to serve civil or criminal process.” 4. Where only a “proprietorial interest” exists “the federal government has no legislative jurisdiction over its land, . . .”
When any legislative authority is ceded to the federal government it is done through the enactment of a law by the State legislature. An example of such legislative jurisdiction being ceded to the federal government is shown in the example attached in the addendum section. The report notes that “the vast areas of land which constitute the Federal public domain generally are held by the United States in a proprietorial status only.”
The conclusion is rightly drawn that the Federal Government (United States) has no legislative jurisdiction within the public domain or in lands NOT ceded to the Federal Government and given exclusive or concurrent legislative jurisdiction by the State(s). With this in mind read again the Income Tax law and who it is imposed upon.
Section 1.1-1 of the Treasury Regulations “. . . imposes an income tax on the income of every individual who is a citizen or resident of the United States . . .” and section 1.1-c of the Treasury Regulations defines a “citizen” thusly: “Every person born or naturalized in the United States and subject to its jurisdiction is a citizen.”Black’s Law Dictionary defines “citizen” as: “One who, under the Constitution and laws of the United States, or of a particular state, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .”
So that we are on the same page; it is important to understand what is and who is a “citizen.” Webster’s dictionary defines “citizen” as; “1. An inhabitant of a city or town; esp: one entitled to the rights and privileges of a “freeman.” 2a: a member of a state. b: a native or naturalized person who owes allegiance to a government and is entitled to protection from it.” Black’s Law Dictionary defines “citizen” as: “One who, under the Constitution and laws of the United States, or of a particular state, is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States . . .” In the Treasury regulation Section 1.1-1, there are two elements to the definition. First, the person must be born or naturalized in the United States. Secondly, the person must be subject to the jurisdiction of the United States. Both elements must be present in order for a “person” to be a “citizen” of the United States. Is it possible for a “person” to have been born in the Union and yet still not a “citizen of the United States?” Is it possible for a “person” to have been born outside of the union of states and still be subject to the jurisdiction of the United States?”
Looking at the last question first, I would say yes. For example, look at a conquered nation. Inhabitants of a conquered nation become subjects to the victor. The most recent example is Iran. The World Community (UN) is the conqueror, and the inhabitants as well as the government are subject to the jurisdiction of the UN. In the overthrow of the Hawaiian Nation by the United States, the inhabitants of Hawaii became subject to the United States. (To my Hawaiian friends, the overthrow was an illegal act on the part of the United States.) The first question is more concealed. “The term “United States” may be used in any one of several senses: (1) It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of Nations. (2) It may designate the territory over which the sovereignty of the “corporate” United States extends. The United States Government is a foreign corporation with respect to the states, or; (3) It may be the collective name of the states which are united under the Constitution.”
“Every person born or naturalized in the United States . . .”Q. Under the various definitions of “United States” what does the term United States take as used in the above sentence? A. Definition No. 3; the collective name of the States. Q. Do the States of the Union “united” under the Constitution have a jurisdiction over other States or territories? A. No. That “common” sovereignty has been delegated to the United States Government under Article I, Section 8, cl. 17, and other provision of the Constitution as contained in Article I, e.g., the commerce clause. The citizens of one State can not confer a jurisdiction or legislate for another State. To bring it more to the point, the citizen of the State of Utah can not tax the citizen of the State of Wyoming. Therefore it is axiomatic that the citizens of Utah, not having that power, can not give it to the Federal “United States.” In theory if one is a ‘citizen’ of the ‘U’nited States they would also be a ‘citizen’ of New York and reside in Arizona. They would for legal purposes be ‘citizens’ of all the States in the Union. “. . . subject to its jurisdiction is a citizen The proceeding discussion being true, and the word “its” being a preposition replacing the noun “United States” – What form or definitions does the word or phrase “United States” now take? A. No. 2; the “corporate” Federal “United States” Government. Now, to translate using the appropriate definition.
Every person born or naturalized in a territory of the “corporate” Federal Government and subject to the jurisdiction of the Federal Government is a citizen for purposes of the tax code. Again what is the land area over which the jurisdiction of the “corporate” Federal Government extends? United States Constitution, Article I, Section 8, cl. 17; “To exercise exclusive Legislation in all cases whatsoever, over such District (not exceeding ten square miles) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful buildings; . . .”
This then is the territory over which the Federal Government has exclusive legislative powers and none other. The Federal Government has no legislative powers within the borders of the States except as ceded by the States for Constitutional purposes outlined in the Constitution Article I, Section 8. I can’t speak for other States, but my research of the Utah laws reveals that the State has not ceded exclusive or concurrent legislative jurisdiction to the Federal Government. Remember two principles, first, that the Federal Government does not have complete authority or power over the whole Nation. And secondly, that the jurisdiction of the Federal Government is restricted to its “scope of activity” or “sovereignty”. The government’s “scope of activity” is restricted by the natural rights of the people (who are sovereign), and the Constitution. The “sovereignty” of the Federal Government is restricted to those objects which it creates, or exist by its permission.
The word “subject” is an interesting word and as defined it means: “Owing obedience or allegiance to the power or dominion of another.” Does that sound like the qualities of a “sovereign” American? What about this word “allegiance”? “The obligation of a feudal vassal to this liege lord. 2. The fidelity owed by a subject or citizen to a sovereign or government. 3. Devotion or loyalty to a person, group, or cause.”
I could go on with the word game. The bottom line, however, is that unless I live within the confines of Washington, D.C., the territories, or enclaves within the States, I am not subject to the jurisdiction of the Corporate Federal “United States” Government. I can be a “citizen” of the Union of States, but only under the jurisdiction of the particular State wherein I dwell, or wherein I am located at any particular moment.
Just as for purposes in court actions involving the Federal Government and the State; the State is a “foreign corporation.” Thusly, in actions involving the Federal Government and the individual outside of the jurisdiction of the Corporate Federal Government, the individual is an “alien”. Under this information, the argument for “non-resident alien” is more meaningful. In commercial and legal matters the states are “foreign”, then so are the people of the respective States ‘foreigners’, in respect to the Federal Government.
It sounds ridiculous, but that is the way of our legal community, to take words and meanings that we understand and define them differently and use, or not use, them as the situation dictates to the benefit of the legal community. This is how they remain in power. Remember that when I use a word and you do not know the meaning, I have power over you.
From these principles the conclusion can be drawn that for an individual to subject to the so called Income Tax they must be first a citizen, “born or naturalized in the United States, and secondly, they must be subject to the jurisdiction of the United States. Therefore those individuals who do not live in the District of Columbia, the territories, or Federal enclaves (military bases) are non-citizens of the United States and could correctly be considered “aliens” to these areas. To expand this, a “non-resident alien” would correctly be an individual who lives say in the State of Virginia and works in the District of Columbia or, who lives in Salt Lake City and works on Hill Air Force base. They would be a “non-resident alien” within the Federal areas.
No. 3 – SOVEREIGNTY AND DELEGATION OF AUTHORITY
Nemo Dat Quod Non Habet
“No one gives what he does not have”
THE GOVERNMENT TAKE OVER
“The power to tax is an incident of sovereignty and is coextensive with sovereignty.” 1
The basic concept of our nations’ government is at opposite poles when it comes to “sovereignty. “The federal union is a government of delegated powers. It has only such as are expressly conferred upon it and such as are reasonably to be implied from those granted. In this respect we differ radically from nations where all legislative power, without restriction or limitation, is vested in a parliament or other legislative body subject to no restrictions except the discretion of its members.” 2
In the late 1800’s the legal minds in government began an about face in the defining the extent of governmental powers which were delegated by the Constitution. The rational used by the legal profession has been criticized as they expanded the concepts of the “commerce clause” and the “necessary and proper clause” in the Constitution. It has been so abused by expansion that are very lives are under the regulation of government.
The powers that be, through government, control the people through what are referred to as “police powers.” Police powers are attributes of government and although limited in a free society, they are magnified in a socialist/communist society where old European feudal concepts dominate.
“In its broadest sense, the police power is nothing more nor less than the power of government inherent in every sovereignty to the extent of its dominions. …, (I)n every case it exercises the same powers; that is to say, the power of sovereignty, the power to govern men and things within the limits of its domain. … ,(B)y any legislation appropriate to that and which does not encroach upon rights guaranteed by the National Constitution. ” 3
The purpose of law being to protect the people in the exercise of their rights, it will prove interesting to translate definition of the police powers into language we understand. To help in this understanding we need to be careful of the words ‘sovereignty’ and ‘dominion.’
The whole tone of the evidence put forth by the legal profession is that the police powers are a ‘privilege’ reserved to the states by the Fourteenth Amendment. This supposition is merely a presumption on their part and an extension of the “Necessary and Proper” clause. And societies inability at self-regulation has led to what at the outset was innocent regulation, to the total abuse of the police powers and local authorities are never in want for excuses to increase their hold on society.
It is argued also that the “police powers” of the state or nation which compel individuals to do certain things are inherent in the government in its role as a “sovereign.” Sovereignty meaning;“It is the supreme power by which any citizen is governed and is the person or body of persons in the state to whom there is politically no superior. … By ‘sovereignty’ in its largest sense is meant supreme, absolute, uncontrollable power, the absolute right to govern.” 4
The term “sovereign” itself come from the concept taught in the European governments with their heritage of kings, queens, dictators and the like. It is not a term that is, or was compatible with our republic as originally established. Nowhere can the term be found in the founding documents of this nation. Yet we have come to make it a part of our vocabulary, and use it without thought.“There is no such thing as government sovereignty, or provided for, in our National Constitution. Under our form of government sovereignty is in the people collectively constituting the State, and not the body of men who, for the time being, are invested by them, with civil authority.” 5
The government, both State and Federal, under Admiralty, continue to misdirect the citizens in pursuing these old feudal concepts. “This belief in the sovereign power of political machinery is not born with men; they are taught it. And how are they taught it? Evidently by these preachers of universal legislative superintendence — by the pretensions of statesmen themselves — and by having seen from their childhood, all kinds of functions undertaken by government officials.”6
In the formation of this Republic, only those rights or powers which the people possess in common were incorporated into the Constitution, which is the sole basis for the authority of our government. Concerning the sovereignty in our Republic, in a decision handed down by the Supreme Court in the early years of our Republic, Justice Wilson stated; “. . . For, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive.
To the Constitution of the United States the term sovereignty, is totally unknown. There is but one place where it could have been used with propriety, but, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves ‘sovereign’ people of the United States; but serenely conscious of the fact, they avoided the ostentatious declaration….
Man, fearfully and wonderfully made, is the workmanship of his all perfect creator; a state; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance….
Let a state be considered as subordinate to the people; but let every thing else be subordinate to the state….
…. A state I cheerfully admit, is the noblest work of man; but man himself, free and honest, is, I speak as to this world, the noblest work of God.” 7
Chief Justice Jay, in the same opinion; “… It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, ‘We the people of the United States, do ordain and establish this Constitution.’” 8
In his reply to Mr. Hayne, Daniel Webster said; “… It is, sir, the people’s Constitution, the people’s government; made for the people; made by the people; and answerable to the people. The people of the United States have declared that this Constitution shall be the supreme law. The states are unquestionably, sovereign so far as their sovereignty is not affected by the supreme law. But the state legislature as political bodies, however sovereign, are yet not sovereign over the people. We are all agents of the same power, the people.” 9
While the people delegate some of their sovereign powers to government, original sovereignty remains with the people. And; “… The proper function of government, then, is limited to those spheres of activity within which the individual citizen has the right to act. … It cannot claim the power to redistribute money or property nor force reluctant citizens to perform acts of charity against their will. … No individual possesses the power to take another’s wealth or to force others to do good, so no government has the right to do such things either. The creature cannot exceed the creator.” 10
Continuing from his address given several years earlier, President Benson adds; “The individual citizens delegate to the (government) their unquestionable right to (lawful defence). (Government) now does for them only what they had a right to do for themselves — nothing more….
President Benson then uses the example; “Suppose (individual) ‘A’ wants another horse for his wagon. He doesn’t have the money to buy one, but since (individual) ‘B’ has an extra horse, he decides that he is entitled to share in his good fortune. Is he entitled to take his neighbor’s horse? Obviously not! If his neighbor wishes to give it or lend it, that is another question. But so long as (individual) ‘B’ wishes to keep his property, (individual) ‘A’ has no claim to it.
If ‘A’ has no power to take ‘B’s property, can he delegate any such power to the (government)? No! Even if everyone in the community desires that ‘B’ give his extra horse to ‘A’, they have no right individually or collectively to force him to do it. They cannot delegate a power they themselves do not have. This important principle was clearly understood and explained by John Lock nearly 300 years ago.”
Adding to this Moses Thatcher’s observations on sovereignty; “… Although the sovereignty is in the people collectively, they have no right to exercise any authority which God has not bestowed upon them.” 11
“For, the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.” 12
This principle is sound. In Chief Justice Marshall’s commentary in the M’Culloch vs. Maryland case., he points out that the citizens of one state cannot confer a sovereignty which will extend over another State 13 – can we not with the same assurance declare that one individual cannot confer a sovereignty over another individual for which they possess no natural right?
The only “sovereign” powers that can be legitimately given to government are those of lawful defense, and the ones itemized in Article I existing under Admiralty jurisdiction or contract.
The word sovereignty does have a place in our government, but just how far does that “government sovereignty” extend? To what subjects? The word sovereignty does not hold the same meaning as it does in the socialistic concept of government. In our system, as established originally, this term has very limited authority as pointed out by Chief Justice John Marshall; “The sovereignty of a State extends to everything which exists by its own authority, or is introduced by its permission.” 14
The “generally accepted definition of ‘dominion’ is perfect control in right of ownership.” 15 When you look back at the legal profession’s definition for ‘police powers’ and replace the words sovereignty and dominion with the meaning, we have; “In its broadest sense, the police power is nothing more nor less than the power of government over everything that exists by its authority over which it has perfect control in right of ownership.”
The question now which comes to mind is, “just what do I own or do that is introduced or exists by the authority of government?” “What I do as a freeman — my labor, travel, etc. comes by natural right, and that which I own is a result of my labor and a natural right to exchange goods and services to obtain property.” Although it is trying to, government has no role in this activity. This activity and others of like characteristics are by natural right.
To try to list the rights that are inherent in man would only mean that some would be left out. This was the contention of Alexander Hamilton; “It has been several times truly remarked that bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. … It is evident, therefore, that, according to their primitive signification, they have no application to constitutions, professedly founded upon the power of the people and executed by their immediate representatives and servants (my emphasis on the servants). Here in strictness, the people surrender nothing; and as they retain everything they have no need of particular reservations, ‘We the people of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.’ …
“… For why declare that things shall not be done which there is no power to do?” 16
To say that the Constitution defines them is in error because the Constitution sets only the limits of government. Neither the Constitution nor government can create rights, but they can, in certain circumstances, grant privileges. Rights are inherent in all individuals as a condition of creation and man. In his limited wisdom, man has tried to summarize them in part in the Declaration of Independence and the Bill of Rights, and recognizing that this is not a complete list they insert the 9th Amendment; “The enumeration of certain rights in this Constitution shall not be interpreted to repudiate, deny, or disparage other rights belonging to the people, but which have not been enumerated.”
A study of our founding documents reveals some of the principles of good government that have already been mentioned such as, (1) securing the rights of the individual. The end of government is not to perfect the state. The end of government is to perfect the individual, in this way the Union becomes perfect. (2) The source of power or authority in government is derived from the people; and, (3) when “… any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it, …” “The police powers’ of a state or municipality do not extend to the passage of laws or ordinances which violate fundamental rights secured by the Federal Constitution.” 17
In common language, other than in the use of lawful defence, individual or natural rights are not valid subjects of the unconstitutional extension of the commerce clause or the necessary and proper clause by government in a free society. The danger exists when we leave the protection of the Constitution and enter contract, then the police powers of the state have force and effect upon us.
The foundation for the government’s prosecution of statute law or Civil Law is the presumption of the “Social Contract,” the Commerce clause or the Necessary and Proper clause or any other “manufactured” agreement and inherent “sovereign power.” Unless these “presumptions” are challenged, the courts will accept the defendants’ acquiescence into the jurisdiction of the court over his person.
1. Curry vs. McCanless, 307 U.S. 357
2. United States vs. Butler, 297 U.S. 1, 63 (1935)
3. Encyclopedia of United States Supreme Court Reports, Vol. 9, pages 472-473
4. Black’s Law Dictionary, 6th ed.
5. Op. cit., Moses Thacher on Civil Government
6. Ibid., Moses Thacher
7. “Oswald vs the State of New York,” 2 Dallas 415
9. Daniel Webster, “Reply to Hayne Speech,” “For They Spoke For Democracy,” edited by Frederick C. Packard, Jr., Charles Scribner, Sons, New York, 1958; p. 60
10. Ezra Taft Benson, “The Constitution, A Heavenly Banner,” p. 9 “Hath not the potter power over the clay,…” Romans 9:21
11. Op. cit., Moses Thatcher
12. Yick Wo vs. Hopkins, 118 U.S. 356, 370
13. Supreme Court decision, “M’Culloch vs. Maryland,” 4 Wheaton 316,429
14. Ibid. M’Culloch vs. Maryland
15. Black’s Law Dictionary, 6th Edition, page 486
16. ”The Federalist,” Hamilton, No. 84;
If by extension we can apply the principle expounded by Hamilton to the authority of taxation, where is the power given by the people that would allow the federal government to take the property of the individual? The Fifth Amendment directs that property may not be taken without “just compensation.” It is often contended that the tax is “justly” applied to those who receive a “pecuniary” benefit (benefits that can be measured in money; Black’s Law Dictionary, 6th ed.) from government. There is no argument here for it is a legal maxim that “those who receive the benefit must meet the burden.” The conclusion from this is, if I do not receive a pecuniary benefit then I am not subject to pay the tax.
17. Kansas City Gas Co. vs. Kansas City, 198 F. 500, 511