At the request of Senate President Neiderhauser
And to the attention of The Utah State Legislature
And Governor Gary Herbert
When we last met at your final town house meeting at the Sandy library, you asked me to send to you the requests that I make concerning the “fundamentals” of good government, referencing Article I, Section 27 of the Utah State Constitution. I begin with this observation by the federal court:
“…[I]t often happens that those closer in time to the enactment of a statute or the handing down of a precedent know best what it really stands for. Frequently changes in social and political beliefs cause later courts to put glosses on statutes and precedents which do not really belong there.” (Ewing v. U.S., 711 F. Supp. 265 )
When one studies the foundation for the jurisprudence of our Union, there are certain historical events that shaped our legal system. These are fundamentals that are no longer taught in our schools and are now over-looked. In school there was a class which taught “civics; a branch of political science that deals with civic affairs and the duties and rights of citizenship.” This has been done away with and is now called “american history.”
After the revolution, there was no United States of America. The Charters that tied each of the Colonies with the King of England was dissolved by the King. They became thirteen separate countries. Complete sovereignty over the land fell to each of them individually. In effect, what is known as the “United States of America” does not constitute a “country.” In technical terms the “United States of America” is a corporation formed by the “People . . . in order to establish a more perfect union . . .” (See 28 USC 3002 (15)(A)). “The word ‘corporations,’ in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate) whether its power be restricted or transcendant, is in this sense ‘a corporation.’ . . . In this extensive sense, not only each State singly, but even the United States may without impropriety be termed ‘corporations.’
Knowing this make statements by the Courts like, “. . . the well established principle of law that the Government of the United States is foreign as to the States of the Union . . .” (U.S. District Court Kentucky, Salonen v. Farley)
All the elements of that corporate trust are outlined in the Preamble.
1) The grantor . . . We the People (not the States)**
2) The Trustee . . . United States of America
3) Purpose . . . Form a more perfect Union,
4) Beneficiary . . . Ourselves and our posterity
5) Enabling action . . . Do ordain and establish
6) What ? . . . This Constitution “for” the
United States of America
There is a difference between the “United States of America” and the “united States.” United States of America is the corporate name for the territorial jurisdiction of the central government. (Article I, Section 8, cl. 17)
** “The government proceeds directly from the people; is ‘ordained and established,’ in the name of the people; . . . 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.” (M’Culloch v. Maryland, Chief Justice Marshall, 1819)
It had to be set up as a corporation in order for the Union to continue, since one generation cannot bind another. Since each of the Colonies retained all of its “sovereign” authority, by way of ratifying the Constitution it delegated certain external responsibilities to the central government, retaining control of internal matters that effect the safety and general welfare of the People. In order to identify the source of governmental authority, we need to do the genealogy of that authority.
Under our Republican form of government complete and absolute sovereignty is found in the People. Neither the federal nor the State are possessed with an inherent sovereignty. Justice David Brewer in writing for the Supreme Court noted two aspects of sovereignty: (1) “The government of the United States is one of enumerated powers; that it has no inherent powers of sovereignty; . . . (2) “The creature cannot rule the creator.” (Kansas v. Colorado, 1907) They both derive their authority or sovereign authority from the People, and the People, under the fundamental principle of delegation, can only delegate that which they possess. The bottom line in this search is sourced in the People.
In 1886, a decision was handed down by the Supreme Court, written by Justice Thomas Matthews. One of his two opinions was Yick Wo v. Hopkins (118 U.S. 356), which stands “undisturbed as precedent after more than a century. . . . [and] . . . stands as one of the few minority rights opinions . . . and is a marvel of realistic jurisprudence.” From that decision is found some fundamentals pertaining to sovereignty: (1) “When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power.”
(2) ” 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.” (at p. 370)
I respect your talent in accounting, as you indicated this was your line of expertise. And it is not in that field that I am addressing. However, in seeking a position in directing the legislative concerns of the State, my concern is in the process of governing a “constitutional republic.” The Constitution drafted for the central government has very little to do with the States with the exception of one particular obligation placed upon the States, and that is found in Article IV, Section 4: “The United States shall guarantee to every State in this Union a Republican Form of Government, . . .” Notwithstanding the fact that it is the responsibility of the Federal Government oversee that requirement, the States have duty to conduct their executive, legislative and judicial duties with the object of preserving our “republican” form of State government. If we do not know what is meant by a “republican” form of government, how can we preserve it? How do we know when that form of government is being attacked if we do not understand those fundamental principles that make it a republic?
“Each state is obliged, while it remains a member of the Union, to preserve the republican form of government in all its strength and purity. The people of each state, by the amended constitution, pledge themselves to each other for the sacred preservation of certain detailed principles, without which the republican form would be impure and weak.” (William Rawle, A View of the Constitution of the United Staes, 1829)
This being said, it concerns me that very few, if any of our governing body, understands just what constitutes a “republic”. We stand and pledge an “. . . allegiance to the flag and to the republic for with it stands . . .” After we sit down we praise our “democracy” and our responsibility to “make the world safe for democracy.” These are two incompatible terms.
It has been difficult to research the difference as both profess a representative government elected by the people. So what is the difference? It would be simple to tell the difference of a republic from a monarchy, aristocracy, oligarchy or even a simple dictatorship.
One of the basic differences is founded in the position of the “sovereign”. In a democracy the majority constitutes the “sovereign”. It is sometimes called “mob rule”. Another name attached to it is the “rule of man”. The face of democracy shows itself as legislators and such look to the “poles” when deciding legislation. Or, a dictatorship of the majority. The minority has neither voice nor rights to refuse to accept the dictatorial majority. Everything is mandatory in a democracy. This brings dictatorship and lividity to the realm.
Its opposite, a republic, recognizes the sovereignty of the individual and protects his natural rights. In a republic the group only has advisory powers; the sovereign individual is free to reject the majority group-think.
In a democracy the people have only “civil” rights, that is rights granted by the government. What government grants, it can take away. In a republic, inalienable natural rights are inherent in the individual because of their creation. They do not come from government. These natural rights are protected by not only the U.S. Constitution, but also the Constitution for the State of Utah, Article I, the Declaration of Rights. This mission of the constitutions has been recognized by the Supreme Court in several ways.
Justice Matthews, (1886): “But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts bill of rights, the government of the commonwealth ‘may be a government of laws and not of men.’ 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.” (Yick Wo v. Hopkins)
Justice Brown, (1906): Individual “. . . rights are such as existed by the law of the land long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution.” (Hale v. Henkel)
Chief Justice Earl Warren (1964): “One’s . . . 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.” (Lucas v. 44th Gen. Assembly)
Chief Justice Warren again (1966): “Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.” (Miranda v. Arizona)
“The Union is an association of the people of republics; its preservation is calculated to depend on the preservation of those republics. The people of each pledge themselves to preserve that form of government in all. Thus each becomes responsible to the rest, that no other form of government shall prevail in it, and all are bound to preserve it in every one.” (William Rawle, A View of the Constitution of the United Staes, 1829)
Another essential component of a republic is found in the “rule of law”. The rule of law is found in the “fundamentals” as expressed in the Utah Constitution Article I, Section 27: “Frequent recurrence to fundamental principles is essential to the security of individual rights and the perpetuity of free government.” When the rule of law is addressed, it refers to these fundamentals, such as our natural rights to property, life and liberty which are essential ingredients to the “pursuit of happiness”; among others.
We have a right to “due process of law”, not administrative law but proper judicial procedure. There are several right that are spoken of in the Bill of Right and Utah’s Declaration of Rights. These declarations in no means complete. Some that are not mentioned include the sovereignty of the People, the individual. Without using the term, Article I, Section 2 refers to that sovereignty.
As addressed earlier in Yick Wo v. Hopkins, I would take exception to the statement by Justice Matthews that the sovereign is not “subject to law”. No man is above the law, and when I speak to that, I mean the “rule of law” being the “Common law”, the law of our creation, “do unto others . . .” Not the Civil law which is the “law of man.”
This leads to another fundamental which receives a lot of “lip service,” routinely referred to and then routinely forgotten; the “rule of law.” To correctly understand this principle, you have to again go back in the history of our Nation. The colonist were mainly from England, bringing with them the English Common law. When the expression concerning “law” was expressed in documents of those times it was in reference to the common law. In the Constitution terms like “courts of law,”supreme law of the land” and such refer to the Common Law. “In defining “suits at common law,” in the amendment, the supreme court declare the term to be, what is denominated “cases in law” in the third article of the constitution; . . .” Bains v. The James and Catherine (1854)
Circuit Justice Baldwin in the Bains v. The James and Catherine (1854) expanded on the conflict between the Common law and Admiralty. “In the preamble to the declaration of the rights of the colonies in October, 1774, one of the grievances complained of was, that parliament had, by late acts, “extended the jurisdiction of courts of admiralty not only for collecting the said duties, but for the trial of causes merely arising within the body of a county.” In the fifth resolution it is declared, “that the respective colonies are entitled to the common law of England, . . .
“It was a part of that great system of English jurisprudence which the colonist adopted in its largest sense, . . . as a general and fundamental law, unless altered by acts of assembly, or was not adapted to their condition, . . . which the people of each state claimed as their birthright, from the beginning of the revolution. . . .
“At this time there were no states in the union, the basis of whose jurisprudence was not essentially that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist.
“The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. . . .”
One of the differences between the civil law and common law was in the importance of the jury. “It is well known, that in civil causes, in courts of equity and admiralty, juries do not intervene, and that courts of equity use the trial by jury only in extraordinary cases to inform the conscience of the court.” In common law proceedings, the jury determined both the law and the facts. “Probably there were few, if any, states in the union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law.” This is noted in the Constitution for the State of Utah, Article I, Section 15: “. . . the jury shall have the right to determine the law and the fact.” This is a “common law jury.”
Justice Baldwin continues: “If the advocates of an admiralty jurisdiction, broader than consists with the statutes and common law of England, take the first position, the seventh amendment is necessarily annulled; for if a case arises which is by the English system a suit at common law, the amendment embraces it, and there must be a trial by jury. If a suit on such a case is sustained in the admiralty according to the civil law, there is no trial by jury, and the amendment does not apply; such a result makes the amendment contradict itself.” The Justice spends considerable time in discussing the differences between the Admiralty (civil law) and Common law, concluding: “It is therefore a self evident proposition, that the jurisprudence of the United States is not founded in the civil law, . . .”
Joseph Story in his works dedicated to Chief Justice John Marshall; General Review of the Colonies, supports Circuit Justice Baldwin’s conclusion: “And so has been the uniform doctrine in America ever since the settlement of the colonies. The universal principle (and the practice has conformed to it) has been, that the common law is our birthright and inheritance, and that our ancestors brought hither with them upon their emigration all of it, which was applicable to their situation. The whole structure of our present jurisprudence stands upon the original foundations of the common law.” Justice Story, General Review of the Colonies, Chpt. XVI. §79
The Common law has a history as far back as the Magna Carta. “From it has evolved the type of legal system now found also in the United States, . . . In this sense common law stands in contrast to the legal system derived from civil law, now widespread in continental Europe and elsewhere. In another, narrower, sense, common law is contrasted to the rules applied in English and American courts of equity and also to statute law. ” (Encyclopedia Britannica)
“There is, however, a difference between these two species of colonies in respect to the laws, by which they are governed, at least according to the jurisprudence of the common law. If an uninhabited country is discovered and planted by British subjects, the English laws are said to be immediately in force there; for the law is the birthright of every subject. So that wherever they go, they carry their laws with them; and the new found country is governed by them.” Justice Joseph Story, General Review of the Colonies, Chpt. XVI. §73
In understanding the Constitution, it is necessary to understand the Common law principles that bind it. And so it is with the Constitution for the State of Utah. Yet we have a State Legislature that feels that the People of Utah are better without the Common law.
As sovereign People and as a sovereign State, our only salvation from the faction going on in Washington today is found in educating the People. The federal government protects States from foreign incursion. The States protect the People, their citizens, from an invasion on the federal level. And this encroachment into State sovereignty by the federal government has silently been going on for over a century. This education centers around State’s rights and federal jurisdiction.
1) First and most important is knowing the limits of federal legislative authority. The Constitution was drafted as a “chain” upon the government on the federal level. A simple understanding of Article I, Section 8, clause 17 clearly outlines the limits of any legislation coming out of Congress. “To exercise exclusive Legislation in all Cases whatsoever,
A. “over such District (not exceeding ten Miles square) as may, by Cession of particular States, . . . (District of Columbia)
B. “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; . . .”
William Rawle (1829) wrote on his View of the United States Constitution, and speaking to this jurisdiction said: “Where a fortress within the acknowledged limits of a state, was surrendered under the treaty of 1794 with Great Britain, and was afterwards constantly possessed and garrisoned by the United States, but was never purchased from the state by the United States, or ceded to the latter by the former, the United States do not possess the right of exclusive legislation or exclusive jurisdiction over such fortress, . . . To give the United States exclusive legislation and jurisdiction over a place, there must be a free cession of the same, for one of the purposes specified in the Constitution. They cannot acquire it tortiously or by disseisin of the state, or by occupancy with merely the tacit consent of the state, when such occupancy is as a military post, though obtained after a treaty by which foreign garrisons were withdrawn from our posts. And the rule is the same, although the title to such place be vested in the United States, by purchases from individuals, and it has been occupied by them as a military post; for if there has been no cession by the legislature of the state to the United States, the right of legislation and jurisdiction over such place, remains exclusively in the state where it is situated.” (Chpt. 27; here he references Hall’s Journal of Jurisprudence, p. 47)
Hall’s Journal of Jurisprudence cites an 1818 case from the Western District of the Supreme Court, The Commonwealth v. John Young dealing with the jurisdiction limits of the federal government and transfer of jurisdiction from State control to federal. The Justice in this case brings out a point which has been forgotten when studying State vs. Federal sovereignty. “The decision must rest, I apprehend, on a few elementary principles that are very plain. Before the establishment of a federal government every state possessed full, complete, and absolute sovereign power. By the federal constitution a portion of that sovereignty was, for national purposes, transferred to the general government: the residue remained to the states. The sovereignty of the United States is derivative; (def: taken from another source; not original) that of the individual states inherent: but the authority of both is limited, being restricted to the exercise of powers applicable only to particular subjects; neither being sovereign to every purpose, and in every aspect, but only so, when acting within the prescribed limits of its authority.
“For all national purposes the United States is completely sovereign: for all domestic purposes, unless where there are express or strongly implied exceptions, each state is so.”
This limitation has not been forgotten. In 1954 a special committee set up by President Eisenhower also studied this command of the Constitution. There was a problem of the military receiving some of the benefits afforded to State citizens. As to the separate sovereignties the committee reported: “The Constitution gives express recognition to but one means Federal acquisition of legislative jurisdiction–by State consent under Article 1, Section 8. Clause 17…. [T]he Constitution provided the sole mode for transfer of jurisdiction, and that if this model is not pursued. no transfer of jurisdiction can take place. . . . Part II, at 41
“It scarcely needs to be said that unless there has been a transfer of jurisdiction (1)pursuant to clause 17 by a Federal acquisition of land with State consent. or (2) unless the Federal government has reserved jurisdiction upon the admission of the State, the Federal Government possesses no legislative jurisdiction over any area within a State, such jurisdiction being exercise by the State, subject to non-interference by the State with Federal function. . . . Part II, at 45
Cites from the United States Code Title 18, Part I, Chpt. 1, Section 7: Special maritime and territorial jurisdiction of the United States defined: (3) Any lands reserved or acquired for the use of the United States, and under the exclusive or concurrent jurisdiction thereof, or any place purchased or otherwise acquired by the United States by consent of the legislature of the State in which the same shall be, for the erection of a fort, magazine, arsenal, dockyard, or other needful building.”
Title 40, Chpt. 3, Section 255, (6): “. . . Unless and until the United States has accepted jurisdiction over lands hereafter to be acquired as aforesaid, it shall be conclusively presumed that no such jurisdiction has been accepted.”
The Supreme Court is not left out on the discussion of Article I, Section 8, c.. 17. In the Cohens opinion, Chief Justice Marshall discusses the legislative authority of congress ; “. . . [T]he power vested in Congress, as the legislature of the United States, to legislate exclusively within any place ceded by a State, carries with it, as an incident, the right to make that power effectual.” Cohens v. Virginia, 
“This power of exclusive legislation is to be exercised, as thus seen, over places purchased, by consent of the Legislatures of the states in which they are situated, for the specific purposes enumerated…., Such consent should carry with it political dominion and legislative authority over them.” Ft. Leavenworth R.R. Co. v. Lowe, 114 U.S. 525 (1885).
“The foregoing considerations would lead, in case of doubt, to a construction of any statute as intended to be confined in its operation and effect to the territorial limits over which the lawmaker has general and legitimate power. ‘All legislation is prima facie territorial.'” (American Banana Co. v. United Fruit Co., (1909))
“First. 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.” See Title 18 USC Part I, Chpt. 1, Section 7, for the definition of territorial jurisdiction. (Foley Bros., Inc. v. Filardo, 1949)
In the State’s fight with the federal government over land rights, we need to look at the fundamentals at the source of the contest. Statehood requirements and eminent domain. Again, we turn to history for the fundamentals.
The only condition placed upon statehood in the Constitution is found in Article IV, Section 3, cl. 1, that without the consent of the respective States, no new State will be formed within the jurisdiction of those States; and Section 4, the proposed State will maintain a “Republican Form of Government.” In addition to these a provision created by the States and the federal government, via the Courts, deals with the doctrine of “equal footing.” That is the new State will come in with the same “dignity and power with other States.”
The Supreme Court has addressed this condition several times. The question as to whether or not the federal government could put conditions on a for admission, was addressed by the Supreme Court in Coyle v. Smith, 1911, Justice Lurton writing for the Court: “The argument that Congress derives from the duty of “guaranteeing to each State in this Union a republican form of government” power to impose restrictions upon a new State which deprives it of equality with other members of the Union, has no merit. . . . but it obviously does not confer power to admit a new State which shall be any less a State than those which composed the Union after the war.
“We come now to the question as to whether there is anything in the decisions of this court which sanctions the claim that Congress may, by the imposition of conditions in an enabling act, deprive a new State of any of those attributes essential to its equality in dignity and power with other States.” (Coyle, p. 567)
In answering the question the Court relied upon earlier decisions. In Martin v. Waddell, (1842), Chief Justice Taney went to the history of the Union: “When the Revolution took place, the people of each State became themselves sovereign, and, in that character, hold the absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.” (Martin, p. 410)
Turning to the Court’s decision in Pollard’s Lessee v. Hagan, (1845) the Court again called on history; “We will now inquire into the nature and extent of the right of the United States to these lands, and whether that right can in any manner affect or control the decision of the case before us. This right originated in voluntary surrenders, made by several of the old States, of their waste and unappropriated lands, to the United States, under a resolution of the old Congress, of the 6th of September, 1780, recommending such surrender and cession, to aid in paying the public debt, incurred by the war of the Revolution. The object of all the parties to these contracts of cession, was to convert the land into money for the payment of the debt, and to erect new States over the territory thus ceded; and as soon as these purposes could be accomplished, the power of the United States over these lands, as property, was to cease.
“Whenever the United States shall have fully executed these trusts, the municipal sovereignty of the new States will be complete, throughout their respective borders, and they, and the original States, will be upon an equal footing, in all respects whatever. . . . The provision of the Constitution above referred to shows that no such power can be exercised by the United States within a State. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession. . . .” (Pollard’s, p. 224)
“Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States, and no compact that might be made between her and the United States could diminish or enlarge these rights. . . .
“Alabama is, therefore, entitled to the sovereignty and jurisdiction over all the territory within her limits, subject to the common law, to the same extent that Georgia possessed it before she ceded it to the United States. To maintain any other doctrine is to deny that Alabama has been admitted into the union on an equal footing with the original States, the constitution, laws, and compact to the contrary notwithstanding.” (emphasis added) (Pollard’s, p. 228)
The Court concluded: “By the preceding course of reasoning, we have arrived at these general conclusions: first, the shores of navigable waters, and the soils under them, were not granted by the Constitution to the United States, but were reserved to the States respectively. Secondly, the new States have the same rights, sovereignty, and jurisdiction over this subject as the original States. Thirdly, the right of the United States to the public lands, and the power of Congress to make all needful rules and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case.” (Pollard’s, p. 230)
In Coyle v. Smith, referring to Article IV, Section 4 and the admission of new States, the Justice noted that ” . . . it obviously does not confer power to admit a new State which shall be any less a State than those which compose the Union. . . . ” Referring to the Pollard decision, Justice Lurton concludes: “The plain deduction from this case is that, when a new State is admitted into the Union, it is so admitted with all of the powers of sovereignty and jurisdiction which pertain to the original States, and that such powers may not be constitutionally diminished, impaired or shorn away by any conditions, compacts or stipulations embraced in the act under which the new State came into the Union which would not be valid and effectual if the subject of congressional legislation after admission.” (Coyle, p. 573)
“That Congress may, in the exercise of such power, impose terms and conditions upon the admission of the proposed new State which, if accepted, will be obligatory, although they operate to deprive the State of powers which it would otherwise possess, and therefore not admitted upon “an equal footing with the original States.” (Coyle, p. 565)
When the State of Utah was admitted at least two conditions: first, “That polygamous or plural marriages are forever prohibited.” Second, “That the people inhabiting said proposed State do agree and declare that they forever disclaim all right and title to the unappropriated public lands . . . .” These two conditions have in fact, deprived the State of Utah of being “admitted upon an equal footing with the original States.” These were not popular with the People of Utah, but felt that admittance into the Union was a top priority at the time.
Any jurisdiction which the federal government may have had was extinguished except for federal lands claimed under Article I, Section 8, cl. 17. This is “property belonging to the United States.” I am not sure exactly what “equal footing” means to some government bureaucrats, but the federal government had NO sovereign rights within the boarders of the original states. The only understanding that can be given to Section 3, Second part, is that when the State is officially accepted into the Union, all federal rights and title of the lands are “extinguished” and come under the control of the State. The State enters the Union on an “equal footing”. This doctrine prevents Congress from conditioning admission to the union on matters outside of its powers. It is beyond all reason to accept the proposition that the Federal Government has unbridled control over the lands of the States. Given the fact that the Federal Government is one of limited powers, and those limits may not be transcended.
The Constitution as drafted for the United States government is a contract containing delegated powers from the “sovereign” People to the central government. It is a principle of law that silence is a negative. The federal government has only powers expressly declared in the Constitution. In Article IV, Section 3, cl. 2, the People delegated to Congress the authority the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; . . .” While the land was considered “territory other property belonging to the United States” the federal government had complete control and sovereignty over said lands. However, once the new States were formed and admitted, all of the sovereignty, dignity and authority over the land transferred to the State.
The original thirteen States, with the exception of Virginia and Maryland, gave no jurisdiction to the government over the lands within their borders. Any authority which the federal government might have over land within the States was by cession approved by the respective States and accepted by the central government according to Article I, Section 8, cl. 17. It is hard to understand the thinking when the enabling acts include reservations or conditions, as they did for Utah, and still contend that the new States will be admitted “upon an equal footing, in all respects whatever.”
The State of Utah should save the $14 million they are sending attorneys to fight this in the courts. Put the federal authorities on the offense to show that they have “right” on their side. My advise is to do a sample test and let the federal government prove the equal footing doctrine, as contemplated in the common law, not exclusive in “all respects whatever.”
The respective governments really like to play with the fundamental doctrine of eminent domain and the Fifth Amendment and “just compensation.” The question to start with is; What is eminent domain? and what is its source? The courts are together on the principle that eminent domain is a power inherent in the sovereign. “There must be a common basis for federal and state eminent domain, and it is found in sovereignty pure and simple.” (“The Law of Eminent Domain in the United States,” by Carman F. Randolph Little, Brown, and Co. (1894); p. 3)
As conceived, this conception of ‘eminent domain’ derives its authority from the doctrine of “inherent sovereign power.” That is, the government is blessed with the power of eminent domain because of its creation. (Encyclopedia of United States Supreme Court Reports, p. 750)Government basis its right to the power of eminent domain as derived from the axiom; “…, Whenever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included.” (Charles A. Beard, “The Enduring Federalist”)
It is this axiom which gives the concept of eminent domain its life. The government uses the “Necessary and Proper” clause in the Constitution, ( U.S. Constitution, Article I, sec. 8) with this axiom to extend its power and control over property. Better known as the “takings”doctrine. (Constitutional Choices, Lawrence H. Tribe, chapter 12)
To better understand the misrepresentation or “stretching” of this concept, the origin of “eminent domain” should be known. Eminent domain is a “Feudal” concept emanating from socialistic ideals where the King is the “fountain of Law.” In these countries indeed the government is the “sovereign” because the King is the government and; “All property is held by tenure from the state, and all contracts, are made subject to the right of eminent domain.” ( Black’s Law Dictionary, 6th ed., “Tenure”)
There is an interesting word to look up, “tenure:” “Tenure: In feudal law. The mode or system of holding lands or tenements in subordination to some superior which, in feudal ages, was the leading characteristic of real property. Tenure is the direct result of feudalism, . . .” (Encyp. of Supreme Court Decisions, p. 751) In case we have forgotten what “feudalism” is, Black’s Law Dictionary is helpful: “The feudal system; the aggregate of feudal principles and usages. The social, political, and economic system that dominated the major European nations between the ninth and fifteenth centuries. The system was based upon a servile relationship between a ‘vassal’ and a ‘lord.’ The vassal paid homage and service to the lord and the lord provided land and protection to the vassal. . . . From this (feudal system) it grew into a complete and intricate complex of rules for the tenure and transmission of real estate.” It is treason for anyone to teach a doctrine such as this.
Legal writers seem to fall into the same trap. They seek for definitions and examples from feudal societies and then extend the definitions and examples to our constitution — it won’t work. No other government in existence currently or in ages past, can compare with the constitution drafted for this Nation. Keep in mind that this Nation overthrew the feudal control of the British Empire over the land. Its attempt to return must be fought at every turn. The concept of eminent domain is inconsistent with the common law and our free republican government.
Supreme Court Justice O’Connor had the right concept of governmental power when she quoted a previous decision United States vs. Butler handed down in 1936; “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. . . .
“. . . Our task would be the same even if one could prove that federalism secured no advantage to anyone. It consists not of devising our preferred system of government, but of understanding and applying the framework set forth in the Constitution. ‘The question is not what power the Federal Government ought to have but what powers in fact have been given by the people.’” ( New York vs. United States, S. Ct., 91-543 )
Government’s claim to sovereignty is clearly a presumption. The fact that the concept of eminent domain is found in the sovereign, is correct, however, who is the sovereign? Recall that in our republican form of government, neither the State nor the federal governments have ANY inherent sovereign powers. Sovereignty is found in the People and ONLY those powers they can delegate. Eminent domain is understood best with a knowledge of the Common law.
If more cites are needed to help understand this fundamental principle of government, just ask.
There is a dire need to educate not only the People of Utah of their heritage and sovereignty, but also those who want to and are elected to govern the State of Utah a common law republic.