Resistance Has Begun

Once again, we honor those who served their country, and world, seventy years ago

Gary Hunt
Outpost of Freedom
October 14, 2013

For the first time since the Tea Party element realized that something was seriously wrong in government, thereby becoming a part of the patriot/constitutionalist community, people were seen on the streets carrying something other than signs.  Though not quite on the level of rifles, or pitchforks, the idea that barricades could be returned to the White House, in protest of the childish actions of the Executive Branch of government, begins to show an advanced form of resistance to the misdeeds and shenanigans of government.

What makes this action so comment worthy is that this act of defiance goes beyond words.  It is, without a doubt, an action that demonstrates that the government will find more resistance, in the very near future, if it does not begin to demonstrate moral and fiscal responsibly in utilizing their positions of trust with the American people.

Unlike Arab Spring, which was chaotic mobs without a real objective, we Americans have sense enough to recognize that the foundation of this country is solid, and, if properly administered, can return to the greatness it once demonstrated.  The actions of Sunday, October 13, 2013 are just the beginning of the insistence that government revise its course and resume administering a government of the people.  If they fail to do so, those activities are a portent of things to come.

Finally, let us honor those Veterans of World War II, and all those who supported them — in reclaiming that which is ours.

National Parks Held Hostage

Just what is a “public” park?

Gary Hunt
Outpost of Freedom
October 12, 2013

Recent events have demonstrated that the US government is more than willing to create any inconvenience, whether lawful, or not, in an effort to achieve their ends. This has become abundantly apparent in the closure of portions of National Parks, without regard to the cost, or the inconvenience and private costs, as a consequence thereof.  Concessions within the parks and nearby communities dependant on the tourism brought by the parks have been financially devastated, while government revenues from leases and fees have disappeared, though cost of enforcement of shutdowns has brought upon the government additional costs. This, however, is information readily available, even in Mainstream Media.

To understand just what has happened with these parks, and just how the government has taken upon themselves the ‘responsibility’ of, as their mission states, “Protecting America’s Great Outdoors and Powering Our Future”, and at the same time, denying us, the Public, access to those parks, can best be explained by a review of the creation of these monuments to the heritage of America.

These parks are “Public Lands”. To understand just what “Public Land” are, perhaps we need to understand what “Public” means, or, at least, what it meant to the Framers of the Constitution , and, at the time that the parks and public lands came into being. To really understand this, we must look at what “public” meant to them, not as we are conditioned to believe, now, that if it is “public”, then it belongs to the government.

From Webster’s 1828 Dictionary:

Public n. : The general body of mankind or of a nation, state or community; the people, indefinitely.

Public a. :
1.  Pertaining to a nation, state or community; extending to a whole people; as a public law, which binds the people of a nation or state as opposed to a private statute or resolve which respects individuals or a corporation only.
3.  Open; notorious; exposed to all persons without restriction.
4.  Regarding a community; directed to the interests of a nation, state or community.
6.  Open to common use; as a public road.
7.  In general public expresses something common to mankind at large, to a nation, state, city or town, and is opposed to private, which denotes what belongs to an individual, to a family, to a company or corporation.

So, in the noun form, it means the general body of a nation. That is not the government, that is us. When used as an adjective (preceding “land”), it is “extending to a whole people”, not the government; “exposed to all persons without restriction”; “open to common use”; or, “something common to mankind” and “is opposed to private” in any form that is not all inclusive. It does not mean “government”, which job is strictly to manage the business of government.

So, with that understood, let’s look at the creation of the first two great parks created in this country, Yosemite and Yellowstone.

Yosemite was first given to the State of California, since a National Park system had yet to be established, though the land had to be set aside to protect it from commercial usage. On June 30, 1864, the Congress approved “An Act authorizing a Grant to the State of California of the ‘Yo-Semite Valley,’ and the Land embracing the ‘Mariposa Big Tree Grove.’” That Act provides “[t]hat there shall be, and is hereby, granted to the State of California” and “that the said State shall accept this grant upon the express conditions that the premises shall be held for public use, resort, and recreation; shall be inalienable for all time”. It further provided that “All incomes derived from leases of privileges to be expended in the preservation and improvement of the property, or the roads leading thereto.” Later, Yosemite was incorporated into the National Park system, though the intent of the creation of the park, “that the premises shall be held for public use, resort, and recreation; shall be inalienable for all time,” is clearly stated, and the that income from the park will provide  for the “preservation and improvement”.

Clearly, the preservation of the park was outside of government and was to be paid for by those monies collected from fees, lease, and any other source, making the park a self-sustaining entity.

Just 6 years later, the first “national park” was created by “An Act To set apart a certain tract of land lying near the head-waters of the Yellowstone River as a public park,” signed into law by President Ulysses S. Grant, on March 1, 1872.  This Act states that the land “is hereby reserved and withdrawn from settlement, occupancy, or sale under the laws of the United States, and dedicated and set apart as a public park or pleasuring-ground for the benefit and enjoyment of the people.” Though not in the Act, funding was to be similar to that approved for Yosemite — it was to be self-sustaining. Not that “public” and “people” have become interchangeable, and do not mean “government.”

Both acts provided for protection of the land, vegetation, and animals, and to remove people who attempted to settle on those lands. However, with the exceptions provided, nothing allowed the removal of the public, for the purposes stated; as a public park, resort, recreation, and pleasuring-ground.

So, the parks were established from the public lands to specific purposes, for our (the public) benefit and enjoyment. They were self-sustaining, and unalienable.  How came they, then, to be utilized as a political tool, denying access, prohibiting parking, denial of use to leases with the respective loss of revenue, and, subject to the funding of the general government, rather than the resources that were provide at their establishment?

The intent, at their inception, was, without a doubt, well thought out and of nothing but good intentions. Subsequently, bureaucrats with small minds have promulgated rules, in defiance with the enactments of Congress, converting the parks into ‘private’ entities, owned by the government. Further, the government,. by the means of “general funding”, have taken from the parks their intended source of finance and incorporated it into the general fund budget, thereby removing the self-sustaining aspect initiated by the Congress. The government, especially the Executive Branch, has seized the “public lands” and “public parks” for their own private purposes, to be used to reward, or punish, as they see fit, that which is, by right, ours, and not to be used in the manner that has now removed them from their intended purpose.

With that in mind, what are we, the PUBLIC, going to do about it?

The Supreme Dilemma

Posterity and Perpetual Debt

Gary Hunt
Outpost of Freedom
October 8, 2013

The Preamble to the Constitution for the United States of America, which sets out the purpose of the government therein created, concludes with the following, “and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

To “secure the Blessings of Liberty to ourselves and our Posterity”, is a mighty powerful phrase, if taken as intended by the framers of our government.

A concept that was advanced among the people, over 10 years prior to the Constitution, dwelt upon the fair and just contribution of the people to the expense of government.  The phrase most often use, with regard to this contribution, was “no taxation without representation.”  This meant that only those selected to represent the people could impose taxation upon them.  Unless directly represented, there could be no justification for the imposition of a tax upon the people.

Let’s look at how “Posterity” was viewed in the past:

Primogeniture, as a concept of birthright and inheritance, goes back, in Biblical times, to before Isaac and his two sons, Esau and Jacob. The oldest child inherits, and the siblings are, for the most part, at the mercy of the oldest, or are simply on their own.  Over time, the right to “testament” allowed the patriarch to divide his estate as he saw fit. Under both systems, there was no appreciable cost imposed upon the inheritance.

In 1215 the Magna Carta was signed.  Articles 2 through 11 address the rights of heirs.  Only descendents of Lords and Knights paid any fees (Lords, 100£ and Knights, 100 shillings) to retain the estate, which included subsequent pensions.  Those of lower social standing received the estate, providing that only debt, without interest, could be taken, and that land could not be taken so long as personal property was sufficient to cover the debt.

In 1898, the first inheritance tax was enacted in the United States.  However, at the time, it was only on personal property, not real estate, and was based upon amounts over $10,000 (a very large sum, at that time).

Since that time, we have seen an escalation in the destruction of an estate that provides that only the very wealthy can pass nearly the entire estate on to their children, unaffected by ‘contributions’ to the government.

Beginning in 1913, with the advent of the “income tax”, we find that the “income tax” becomes the source whereby money is taken from the family, for the general good. We also find that a direct tax, in contradiction to the intent of the original direct tax provision of the Constitution, begins to take more and more of the annual earnings, as well as substantial portions of the estate, upon the death of the parents.

Beyond that, based upon the Congress having the power “to pay the Debts…”,  we find, now, that even after we have had our earnings taken from us, the “Debt” extends to an obligation upon our posterity, which, at this time, we can see no end.

What effect does this have on our descendents, “our Posterity”?  If we look simply at the current publicly acknowledged $16 trillion current debt of this country, without consideration of interest, we are looking at an obligation of about $50,000 per man, woman and child.  However, this is based upon only external (money owed to those outside of government) obligations.

Just for starters, let’s look at what USA Today report, in May 2007, with regard to the true debt.  Their estimate was $59 Trillion (with a “T”, being $59,000,000,000,000), which would put the debt at about $200,000,000 for every man, woman, and child. But, that was 6 years ago.

Let’s look at what that current debt obligation, as explained in a National Review Article,  which is an average estimate at $106,000,000,000,000.  This gives an average debt of $331,000 for every man, woman, and child. So, without consideration of additional annual costs, which will have to be added on each year, for the operation of government, we see that if someone works 50 years, simply paying on the past debt, it will be an obligation of $6,600 per year, for each man, woman, and child.

Looking at the annual proposed 2013 budget, we see that outlays will amount to $3,803,000,000,000. This means that every man, woman, and child, will have to fork over nearly $12,000 to meet this annual expense. However, little, if any, goes to the reduction of the debt outlined above.

To put this in hopefully simple terms, if every man, woman and child paid, this year, $343,000 ($331,000 plus $12,000), we would relieve the debt, completely, and only have to pay $12,000 next year, and subsequent years, so long as Congress doesn’t begin spending, again, like a drunken sailor (my apology to all sailors, drunk or sober).

Now, it is true that the government has revenue from other sources, and those must be taken into account. However, we must also look at just where the money comes from to supply those other sources with the means to pay their share of the annual contribution. Quite simply, that money comes from “Excise, Impost and Duties”, which simply add that cost to what we pay for certain goods. So, though all of the $12,000 won’t be directly on you, it will, without a doubt, be indirectly upon you.

So, what does this have to do with “Posterity” and “No taxation without representation”? Well, the reality of the numbers presented above is that we, the People of the United States of America, and our Posterity, have an insurmountable debt. It is perpetual, as was only intended of the Union, though now it is also of the debt. It cannot be retired (paid off), by any means currently within the grasp of government. It can only result in either an increase in taxes, or, the perpetuation to even more generations, yet unborn, or both.

So, from the days of the Magna Carta, where posterity was protected, and unburdened by future debt, we have evolved, as a free people, to the point that the “Posterity”, which was of great concern to the founders of this nation, has now become the scapegoat, burdened with perpetual debt — that can be described as no less than slavery.  They are without representation, as clearly, those unborn can have none to speak for them.

We have gone from “Last Will and Testament”, intended to pass on to our heirs what remained of our fortune, to one where though there may be a small residual, it can never approach the obligation we have burdened them with.

Is this what the framers intended? Is this what we intend to leave to our Posterity? If not, what do we intend to do about it?

The Passing of the Torch

Gary Hunt
Outpost of Freedom
June 11, 2001

This morning, a perversion of justice and the Constitution succeeded in taking the life of an American Patriot.  Timothy James McVeigh was executed, by lethal injection, in Terre Haute, Indiana.  His crime, say the courts, was the murder of federal agents.

McVeigh’s death might be more appropriately ascribed to the inability of the US government to function, in any judicial capacity, in a manner consistent with the authority granted government by the Constitution.

After a failure of the Articles of Confederation, the Constitution was created and adopted (ratified) to enable a new government, with more power in the exercise of government, but, with specific limitations established with regard to its jurisdiction, authority and imposing upon it an obligation to protect certain rights which had been deemed, by the Constitution and other founding documents, to have been granted to the People — by God.

In the matter of Jurisdiction, the Constitution clearly sets forth the ability of the federal government to extend “exclusive jurisdiction” over a few enumerated locations.  Even considering the expansion of those locations by the Northwest Ordinance, those limitations were upheld by the Supreme Court for many years.  Federal authority over the actions of individuals was extremely limited, and with few exceptions, existed only when authorized by Constitutional Amendment.  Hence the absence of federal statutes against assassination or murder, until recently.

Likewise, the jurisdiction of federal agencies was severally limited, and extended only to those cases that were well within the Interstate Commerce or other specific provisions.  The Supreme Court has struck down a number of laws, which, though they attempted to appeal to the interstate Commerce provision, were tied to the provision by such a stretch as to be deemed without Constitutional authority.  The striking down of the federal “gun free school zones” is an example of an unlawful presumption on the authority of the federal government.

Many federal agencies were created with a specific purpose.  For example, the Bureau of Alcohol, Tobacco, and Firearms (BATF) was instituted to act as a tax collection agency, under the Treasury Department.  Tax matters have always been considered, in this country, to be civil in nature, not criminal.

Within the Department of Justice, there was an agency created whose purpose was to investigate and aid in the prosecuting criminal activity.  The authority for it to “enforce” laws was written in to its directive in 1994, and is a gross violation of the intention of the Founders.  They had always sought a separation between force and civil authority.  Never had it been contemplated that an agency could use force without separate and distinct civil authority.  The Federal Bureau of Investigation was within that scope – until it began, even prior to its description being changed – enforcing, rather than simply investigating.

These two agencies came together, in 1993, in an attack on a religious group in Waco, Texas.  The incident began when the tax collection agency (BATF) entered upon lands recognized by McClellan County and the state of Texas, as a Church.  When they entered, they entered with guns drawn and with every intention of entering the Church through windows and doors, without obtaining the consent of the Pastor of that Church.  They also intended to shoot anyone who opposed that entry.  And, they succeeded in both.

After having four of their own killed (and killing seven of the Church members), they withdrew from their combat positions and regrouped, just a few hundred yards away from the Church – limiting access to only those deemed acceptable by the tax collection agency.

Soon, they were reinforced by the investigators.  Of course, they lied, but just a little bit, about what had occurred, so their bigger brother, the investigators, took family under wing and began an investigation, which resulted in an armed camp, much akin to a military installation, and a defensive perimeter (crime scene) larger than any before ever envisioned.

For fifty-one days, the tax collectors and investigators imposed every sort of mental anguish and abuse that they could concoct – upon the parishioners huddling, scared for their lives, inside of their flimsy Church.

During the course of the fifty-one day siege, the agencies, and their compatriots in Washington, D.C., began a campaign of deceit in an effort to demonize the pastor and his congregation – and, detract from an honest evaluation of the circumstance by both the public and the government.

However, the biggest problem was that for the near first time in the history of this country, the agencies, not the Congress or the President, determined what they would do, how they would do it and what the rules would be by which all would play.

Many people observed, first hand, the encampment of federal ‘soldiers’ just outside of a quiet Texas town.  They also observed the support troops, which had been deputized by the FBI to act as a perimeter guard to the ‘crime scene’.  These deputies, who had sworn to uphold the Constitution in the performance of their duties, had turned their backs on that oath, and blindly obeyed the unlawful orders given by this civilian agency with guns.  Timothy McVeigh was among those observers.

Timothy, like so many others around the country, had sought, by peaceful means, to bring about a return to Constitutional limitations of governmental authority.  After all, being a decorated veteran and hero of Desert Storm, Timothy had demonstrated his willingness to put his life on the line in defense of that Constitution.  He had no choice but to express his discontent with the government’s usurpation of authority by peaceful means.

Then, on April 19, 1993, as the world watched, a tragedy of epic proportions occurred in the area controlled, absolutely, by those federal agents.  Regardless of blame over who started the fire that consumed over eighty lives — men, women and children — the precautions which could have prevented the disaster, or, at least, minimized the degree of death and destruction, were none existent, and when offered by the local fire department were refused.  By any stretch of the imagination, this would be nothing less than gross negligence.  But, considering the obligation of the government to safeguard life and property, the failure to do so constitutes a far more serious breach of public trust than would at first be recognized.

As time went on, it became apparent that federal agents told lies to other federal agents, Congressional committees and the public.  Evidence was lost, misplaced, or hidden.  Eventually, in 1994, when those who had escaped with their lives stood trial, these same agents committed perjury.

Unlike the events in Boston, in 1770, the Boston Massacre, no government agents ever stood trial so that the People might judge whether they had violated the laws, or the Constitution.  Instead, their only judgment came from their superiors within their respective agencies – the same superiors who authorized these unlawful activities in the first place.

Complicit with these agents, the court gave instructions, which some of the jurors later complained of, left no alternative but to convict those Church members on trial, though the lowest possible ‘crime’ was the choice of the jurors who felt that if there was a crime, it was more technical than destructive.  The court became even more contemptuous when it imposed maximum sentences, and even came to some conclusions, which the jury had not, resulting in the judge increasing sentences to up to forty years for some of the defendants.

Many of the same observers of the events in Waco watched the judicial process to see if the government was, in the least, capable of applying justice to the matter, or whether it was more intent on preserving an air of respectability to the actions of the forces which had already decimated the Church to a handful of followers.

The conclusion, by those observers, which has been proven correct in the ensuing years, was that the government had determined that the government (king) could do no wrong.

As a result of the conviction of the Church members, the Constitutionalist community, throughout the country, became outraged.  Many advocates openly expressed their intentions to go to Washington and “hang the Congress from light posts.”  Others advocated blowing up government buildings, killing government agents and taking any action necessary to force the government back in to obedience to the Constitution.

Among all the words, however, only one man began planning an action consistent with the words of others.  He began traveling around the country, securing funding; expanding his knowledge of explosives, visiting potential targets, and preparing a plan of action that would come to fruition just two years, to the day after the destructive conclusion of the events at the little Church in Waco.

To carry out his plan, he realized that there was risk.  Government infiltration of Constitutionalist groups had probably reached epic proportions.  Whether Louis Beam’s “Leaderless Resistance” was a part of his study, or not, it was apparent that he recognized the risk of a broad base of support, so he settled on enlisting the help of two people who he had known for many years.

Had he sought a larger base of support, he might well have had the advantage of sophisticated explosives, timers, and delivery methods.  Instead, he opted for a homemade bomb, using the best materials readily available.

On April 19, 1995, Timothy James McVeigh completed the execution of his plan.  Though he had anticipated even less destruction than occurred, he was successful in bringing attention to his actions throughout the world.  He had little doubt, considering both the historical and recent attributes of the date that the reasoning behind the bombing would be obvious.  He was sure that government would understand his message, and, he was equally sure that he had just committed an act that consummated his status as an enemy of the US government.  He was, finally, involved in a war to restore Constitutional government to the United States of America.

– – – – – – –

In 1995, The Prosecuting Attorney and the Defense Attorney, in the United States vs. Timothy James McVeigh proceedings, formally agreed that ALL documents obtained by the government, regarding the investigation of the Oklahoma City Bombing, be provided to the Defense Team.  This agreement was affirmed and ordered by Judge Matsch, who was also the trial judge.  As a result of this agreement, a new database was set up to track all documents relating to the case.  Virtually every document relating to the investigation was to be logged into the database.

Early on, however, Defense Attorney Stephen Jones asked for documents that were referred to in other documents, but were not listed in the database.  Frequently, he was told that there were no other documents.  He had little choice but to proceed with what was available.

On May 9, 2001, just a few days before the scheduled execution of Timothy McVeigh, and after months of knowing of the existence of thousands of documents which had been excluded from the database, the Federal Bureau of Investigation (remember them from Waco?) went public with the fact that over three thousand documents had been ‘found’ that were not included in the database, nor were they provided to the Defense Team – in direct violation of the agreement, the order, and the law.

The next day, the Attorney General, John Ashcroft, stayed the execution of Timothy McVeigh until June 11, 2001.  This, he said, was sufficient time for the Defense Team to study all three thousand documents and conclude that there was nothing that would clear their client – who had, by the way, already “confessed to the crime”.

As time went on, the number of documents that had been excluded approached five thousand.  Many of them dealt with the possibility of witnesses to more than just McVeigh and his two army buddies, Michael Fortier and Terry Nichols.  Perhaps so, but if justice is to prevail, all of the facts – especially those which are required to be turned over to satisfy Due Process – must be made available to the Defense Team.  Due Process, after all, requires a rigid adherence to the law.  If failure to advise someone that he has the right to the presence of a lawyer is a violation of Due Process, then, surely, denial of access to all evidence is, likewise, a denial of Due Process.

And, as for confessions, are the valid if they are not sworn to, or if they come through third party writings?  Evidence, perhaps, but not sufficient to deny someone Due Process of Law.

Even Judge Matsch realized the severity of the problem of the missing documents when he berated the FBI for their failure to comply with his order.  But, then, Judge Matsch, just a few minutes later, denied a stay of execution to allow the Defense Team time to complete their review of the documents.

– – – – – – –

Timothy McVeigh acted as he did because he saw that government was incapable of conducting itself with principle and integrity.  He saw a government resorting to “brute force” in dealing with other nations of the world, as well as its own people.  He wanted to expose the actions of the government – to bring attention to the fact that it was no longer operating as was intended.  He was willing to die to reveal these truths – but the government continued to insist that it was operating properly, and was capable of acting within the laws.

As his execution date approached, the FBI, in true form, once again exposed itself as a bungling, incompetent investigative agency in its inability to keep track of its own records.  Final proof of the need to protect Americans from a government who has set itself has the almighty knower of all truths.

Unlike the government, Timothy McVeigh’s head IS “bloody but unbowed”!

But, today, Timothy McVeigh is dead.  And, now, it is time to pass the torch.

Will you receive it?

* * * * * * * * * * * * *

The other two articles in this series:

An Essay on Hypocrisy, by Tim McVeigh

What did Timothy McVeigh really say?

 

What did Timothy McVeigh really say?

Gary Hunt
Outpost of Freedom
November 14, 1997

 

If the Court please, I wish to use the words of Justice Brandeis dissenting in Olmstead to speak for me.  He wrote, “Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example.”

That’s all I have.

Timothy McVeigh, August 14, 1997 — just prior to being officially sentenced to death

 

For weeks, now, I had been conjecturing, along with nearly everyone else in the country, what words would come forth on Timothy McVeigh’s day of sentencing. He had declared that he would make a statement — his first since he was accused of bombing the Murrah federal building in Oklahoma City on April 19, 1995 — and the word had spread, as had the anticipation. Many had expected a confession, remorse or denial of complicity. Very few, if any, expected so much acumen to come from McVeigh and just 47 words.

To fully understand the depth of McVeigh’s statement, it might be best to understand exactly what the Olmstead case was about. “Olmstead was the leading conspirator and the general manager of [a] business” (Olmstead v. United States, 277 US 438) which employed “not less than 50 persons,” including executives, salesmen, deliverymen, dispatchers and an attorney. The business was “unlawfully possessing, transporting and importing intoxicating liquors,..” The crime, then, was a violation of the statutes enacted under authority of the 18th Amendment to the Constitution (Prohibition) which was ratified in 1919.

The general argument of the court was that although postal mail, once sealed, was prohibited from intrusion by government officers seeking evidence, a telephone line was not, and, although Washington state law made it a misdemeanor to tap a phone, the evidence obtained thereby was admissible. The court, in its opinion, also made clear that the government need not be ethical in its acquiring of evidence.

Brandeis, in his dissenting opinion, stated that “Tapping of one man’s telephone line involves the tapping of the telephone line of every other person whom he may call, or who may call him.” He continued, [a]s a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire tapping.”

Although the comparison of any evidence gathering in the McVeigh case is inconsequential to the whole, the seizure of the papers in McVeigh’s car, his home, the homes of his friends and relatives, and the intimidation of his sister and the Fortiers falls well within the domain of what was once prohibited under the Constitution — but which has become an everyday occurrence under the federal government’s agenda.

I’m not so sure that this was all that Timothy McVeigh had to say when he uttered those few words — much to the chagrin of many. The implications of wrongdoing by government, and usurpation of authority not granted by the Constitution through the process of judicial review is much broader in its ramifications than this case, by itself, demonstrates. Brandeis does discuss other aspects of the Constitution, which have changed by their nature due to the nature of change in the society, especially from a technological point of view. How, for example, could the Founders have protected the right to communicate (theirs was limited to post and courier) over telephone lines when electricity had not been discovered. How, too, could they address the right to communicate freely on the Internet when just a few years ago the concept of this medium of communication was beyond the comprehension of most people. Brandeis states, with regard to the Supreme Court’s review of actions of the Congress, that “this court has repeatedly sustained the exercise of power by Congress, under various clauses of [the Constitution], over objects of which the fathers could not have dreamed.”

“Protection against such invasion of ‘the sanctities of a man’s home and the privacies of life’ was provided for in the Fourth and Fifth Amendments by specific language.” He continues, “[b]ut ‘time works changes, brings into existence new conditions and purposes.’ Subtler and more far-reaching means of invading privacy have become available to the government. Discovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what was whispered in the closet.”

In appraising the consequences of the government’s overzealous tendencies to secure convictions, Brandeis discussed the actions of the government officials, and the government, itself. “When these unlawful acts [wire tapping in violation of Washington state laws] were committed they were crimes only of the officers individually. The government was innocent, in legal contemplation; for no federal official is authorized to commit a crime on its behalf. When the government, having full knowledge, sought through the Department of Justice, to avail itself of the fruits of these acts in order to accomplish its own ends, it assumed moral responsibility for the officers’ crimes… and if this court should permit the government, by means of its officers’ crimes, to effect its purpose of punishing the defendants, there would seem to be present the elements of ratification [of the crime committed by government officials, individually]. If so, the government itself would become a lawbreaker.”

Brandeis’ entire concluding paragraph is probably warranted. What McVeigh left out speaks volumes. From the record:

“Decency, security, and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperiled if it fails to observe the law scrupulously. Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means-to declare that the government may commit crimes in order to secure the conviction of a private criminal-would bring terrible retribution. Against that pernicious doctrine this court should resolutely set its face.”

The act of anarchy that McVeigh committed was an act induced by observation of the government’s violation of numerous aspects of the Constitution. In Texas, for example, §9.31 (C) of the Texas Penal Code states:

“The use of force to resist an arrest or search is justified:

“(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

“(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer’s (or other person’s) use or attempted use of greater force than necessary.

There can be little doubt, regardless of your perception of what occurred in Waco, that the BATF and the FBI did create a situation in which the retaliatory action by the Davidians was fully justified, at least under Texas law. Other events in our recent history can lead us to conclude that the governments efforts at crime control have only generated a scenario where the government may commit crimes, with impunity, and convict others who have not committed a crime of the mere act of possibly contemplating a crime. A very far cry from what Brandeis spoke to some seventy years ago.

Some will suggest that I am attempting to justify McVeigh’s deeds. On the contrary, I have only attempted to explain them.

 

The previous post in this series about McVeigh,

An Essay on Hypocrisy, by Tim McVeigh

 

Understanding the Tenth Amendment

Gary Hunt
Outpost of Freedom
July 27, 2013

The Bill of Rights was ratified after the Constitution because many feared that the government created by the Constitution might overreach the limitations imposed upon it.  This is explained in the Preamble to the Bill of Rights.  Preamble means: The introductory… showing the meaning or intent.

(from http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html)

THE PREAMBLE TO THE BILL OF RIGHTS

Congress of the United States
begun and held at the City of New-York, on
Wednesday the fourth of March, one thousand seven hundred and eighty nine.

   The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.

Resolved by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States as amendments to the Constitution of the United States, all, or any of which articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.

Articles in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

The last, of those adopted, was the Tenth Amendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

The first four articles in the Constitution grant power and authority, or, limit power and authority, defining also some authority and limitations upon the states.  However, since the Constitution dealt in generalities, and since there were many areas of concern that were not addressed in the Constitution, the first 8 amendments were ratified as rights protected and the last two broadly provided for a retention of rights not enumerated and an assertion of authority in the absence of such enumeration.

So, let’s look at the elements of the Tenth Amendment:

“The powers not delegated to the United States by the Constitution“, means what it says.  It identifies, in general terms, (primarily enumerated in Article I, Section 8, of the Constitution) those powers not specifically granted to the general (federal) government.

Then, “nor prohibited by it to the States“, addresses those grants and limitations from Article I, Sections 9 and 10.

So, now we have identified those items that, if not so identified, “are reserved to the States respectively“, though there is no provision in the Constitution that would provide for the states to assert such authority, since the 17th Amendment removed the election of Senators from the State Legislature, and made them elected directly by the people.  This removed them from any obligation to the State, as represented by its legislature, and made them simply longer termed, higher paid, representatives, thereby removing the assurance of state input in federal matters, as discussed in the Federalist Papers and the Notes of the Constitutional Convention.  That original authority (state’s ability to nullify laws, constitutional, or not) ceased to exist.  This leaves only the means that were often discussed, and once applied, of nullification by secession.  In that one application of such nullification, the cost, in money and lives, provides ample discouragement for future endeavors.

This leads us to the final phrase, “or to the people“.  Is there, within the Constitution, a provision which provides an individual (a people) the means to challenge an unconstitutional law — one without constitutional authority for its enactment, at least as applied to the people?  Surprisingly, there is one provision, Article I, Section 9, clause 2, which reads: “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”

As William Rawle said (1829) of the Writ of Habeas Corpus, “it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors“.

To learn more about the “sacred writ”, its history and Supreme Court decisions that prove the veracity of what Rawle said, go to Habeas Corpus – The Guardian of Liberty.

 For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended

Habeas Corpus The Guardian of Liberty

 

Gary Hunt Outpost of Freedom June 19, 2013

 

Habeas Corpus — Its meaning in Our History

Suppose you lived in Washington state or Colorado.  Suppose, too, that consistent with state law, you grow, process, and used marijuana.  Now, state law says you can, but federal law says that you can’t.  What happens if the feds arrest you and charge you with a crime?

The Constitution/Bill of Rights says that the right to keep and bear arms cannot be infringed.  Would a federal requirement that demands that you register your firearms, be such an infringement?  Could you be successfully prosecuted if charged with failing to register your firearms?

This article is divided into five sections:

•  Introduction to Habeas Corpus
• Court Cases and enactments affirming Habeas Corpus in the United States, during its first century
• The Fourteenth Amendment and its effect on the citizen
• The Fourth Branch of Government, and,  who is subject to that unconstitutional branch
• Summation – that puts all of the pieces neatly into place

If you wish to bypass the first four sections, but want to understand just what they prove, go to the “Summation”, which puts all of the pieces in place.

Introduction to Habeas Corpus

Habeas corpus, also known as the “sacred writ”, is something that we have heard about since our youth.  At best, we were told that it means to bring the body forward, as when somebody is falsely imprisoned.  We knew that it was in the Constitution, but beyond that, we knew very little about it.

Before we start, let’s take a short quiz to see what we know and where we are starting from.

What does “writ of habeas corpus” mean?

A)  A writ to remove someone who has been detained to another jurisdiction or court. B)  A writ to move a civil case to a higher court. C)  A writ to move a civil case to a different court. D)  A writ to move a prisoner to a superior court. E)  A writ to assure that a person condemned to death receives complete due process to higher courts. F)  The “sacred writ” that we learned about in school. G)  A writ, meaning, “you have the body to testify,” to bring a prisoner from jail or prison to court. H)  A writ requiring a person detaining another to prove that he is lawfully detained.

To fully understand habeas corpus, we will first have to clear our minds of misconceptions that have been promulgated through our entire lifetimes.  The last Habeas Corpus ad subjiciendum (sacred writ) heard by the United States Supreme Court, at least as far as I have been able to determine, was the decision of In Re Lane, back in 1890, yes, 123 years ago.  So, let’s see what Habeas Corpus meant, back then.

Has the government become good guys, where we need not fear that they might be overzealous in prosecuting citizens?  Or, have we lost that which was so sacred to the Founders, the sacred writ, which was protected by the Constitution?

Is it possible that this lost art is no longer taught in today’s law schools?  Perhaps for decades?  Is it possible, since none has been heard in the last 123 years, that modern attorneys have not even looked into the reason for its inclusion in the Constitution?  Is it possible that even the judges are not really aware of habeas corpus, or, do they intentionally avoid recognizing demands for the sacred writ?

Nullification is discussed, at great length, within the patriot community, as a means of suppressing federal intrusion.  Is it possible that the sacred writ is the only clearly constitutional means of nullifying unconstitutional federal laws?  And, an individual can challenge that such laws, although there is no constitutional provision for a state of the Union to challenge such unconstitutional laws?

As you continue reading, please do so without any preconceptions or misconceptions regarding other proposed techniques of nullification, or previous understanding of Habeas Corpus.  Enter into this subject with an open mind and read, if necessary, the referenced sources.

The Meaning of Habeas Corpus

Habeas corpus, by itself, has numerous meanings.  When we hear of a habeas corpus, it is seldom, if ever, Habeas Corpus ad subjiciendum; rather, it is on appeal, or, an order for change.  The “sacred writ” is not an appeal, rather, a question of jurisdiction – – whether to challenge charges and/or imprisonment are based upon a constitutional law.

The Sacred Writ is defined as follows (Black’s Law Dictionary, 5th Edition):

habeas corpus ad subjiciendum.  A writ directed to the person detaining another, and commanding them to produce the body of the prisoner, or person detained.  This is the most common form of habeas corpus writ, the purpose of which is to test the legality of the detention or imprisonment; not whether he is guilty or innocent. 

This is the well-known remedy in England and the United States for deliverance from illegal confinement, called by Sir William Blackstone the most celebrated writ in the English law, and the great and efficacious writ, in all manner of illegal confinement.  The “great writ of liberty”, issuing at common law out of the Courts of Chancery, King’s Bench, Common Pleas, and Exchequer.

From this point on, we will be discussing only Habeas Corpus ad subjiciendum.

In 1679, the first Habeas Corpus Act was enacted in England, consolidating principles previously established, some originating from the Magna Carta.

Some excerpts from that act:

V. And be it further enacted by the authority aforesaid, That if any officer or officers, his or their under-officer or under-officers, under-keeper or under-keepers, or deputy, shall neglect or refuse to make the returns aforesaid… shall for the first offence forfeit to the prisoner or party grieved the sum of one hundred pounds; (2) and for the second offence the sum of two hundred pounds, and shall and is hereby made incapable to hold or execute his said office…

Habeas Corpus was a writ of right – and was executable upon demand.  From the act, quoted above, we see that there are penalties for any government official refusing to bring the body forward.  Consider that in a monarchical society, failure to respond to a writ of habeas corpus was unpardonable.

In 1768, William Blackstone, in his Commentaries, provides the following:

But the great and efficacious writ in all manner of illegal confinement, is that of habeas corpus ad subjiciendum; directed to the person detaining another, and commanding him to produce the body of the prisoner with the day and cause of his caption and detention,…  This is a high prerogative writ, and therefore by the common law issuing out of the court of king’s bench not only in term-time, but also during the vacation, by a fiat from the chief justice or any other of the judges, and running into all parts of the king’s dominions: for the king is at all times intitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted.

Here, Blackstone tells us that the justices are bound, as well, to respond, timely, to the demand for a writ, even if on vacation.  However, we must substitute “We the People” for “king”.  After all, we are “intitled to have an account, why the liberty of any of [us] is restrained, wherever that restraint may be inflicted“.

Clearly, whether jurisdiction is obvious, or in question, the court is compelled to answer.

In the court of King’s Bench it was, and is still, necessary to apply for it by motion to the court, as in the case of all other prerogative writs…  For, as was argued by lord chief justice Vaughan, “it is granted on motion, because it cannot be had of course; and there is therefore no necessity to grant it: for the court ought to be satisfied that the party hath a probable cause to be delivered.” …  On the other hand, if a probable ground be shewn, that the party is imprisoned without just cause, and therefore hath a right to be delivered, the writ of habeas corpus is then a writ of right, which “may not be denied, but ought to be granted to every man that is committed, or detained in prison, or otherwise restrained, though it be by the command of the king, the privy council, or any other.”

So, if it is demanded, it must be issued.  Once demanded, the existence of probable cause is unquestionable.

Now, let’s look into what might be the cause of an improper imprisonment.

In a former part of these commentaries we expatiated at large on the personal liberty of the subject.  It was shewn to be a natural inherent right, which could not be surrendered or forfeited unless by the commission of some great and atrocious crime, nor ought to be abridged in any case without the special permission of law.  A doctrine co-eval with the first rudiments of the English constitution; and handed down to us from our Saxon ancestors, notwithstanding all their struggles with the Danes, and the violence of the Norman conquest: asserted afterwards and confirmed by the conqueror himself and his descendants: and though sometimes a little impaired by the ferocity of the times, and the occasional despotism of jealous or usurping princes, yet established on the firmest basis by the provisions of magna carta, and a long succession of statutes enacted under Edward III. To assert an absolute exemption from imprisonment in all cases, is inconsistent with every idea of law and political society; and in the end would destroy all civil liberty, by rendering it’s protection impossible: but the glory of the English law consists in clearly defining the times, the causes, and the extent, when, wherefore, and to what degree, the imprisonment of the subject may be lawful.  This induces an absolute necessity of expressing upon every commitment the reason for which it is made; that the court upon an habeas corpus may examine into its validity; and according to the circumstances of the case may discharge, admit to bail, or remand the prisoner.

If the imprisonment were a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes“, then the law that lead to the imprisonment might be under “color of law” rather than lawful — in accordance with the Constitution.

Blackstone concludes his commentary on the sacred writ in unequivocal terms:

But even upon writs at the common law it is now expected by the court, agreeable to antient precedents and the spirit of the act of parliament, that the writ should be immediately obeyed, without waiting for any alias or pluries; otherwise an attachment will issue.  By which admirable regulations, judicial as well as parliamentary, the remedy is now complete for removing the injury of unjust and illegal confinement.  A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government.

Therefore, writs of habeas corpus must be issued; must be immediately obeyed; and, no other filings are required.  He also expounds upon what may be the cause of the enactments which are beyond the authority of the government, when he explains that habeas corpus ad subjiciendum is “a remedy the more necessary, because the oppression does not always arise from the ill nature, but sometimes from the mere inattention of government.”

Forty years (1829) after the ratification of the Constitution, William Rawle, a Constitutional scholar, in his “A View of the Constitution of the United States“, provides insight into habeas corpus, as a part of the law of the land.

Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction.  It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors.  After erecting the distinct government which we are considering, and after declaring what should constitute the supreme law in every state in the Union, fearful minds might entertain jealousies of this great and all-controlling power, if some protection against its energies when misdirected, was not provided by itself.

In order to protect the personal liberty of every individual and repel the injustice of an unconstitutional law or despotic governors, we have the Writ of Habeas Corpus, in addition to the Bill of Rights.

If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief.  But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress….  It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States.  But the state courts and judges possess the right of determining on the legality of imprisonment under either authority.

Rawle makes clear that even absent a provision in the Constitution, any state, with a provision for habeas corpus, could, under said state’s authority, through a judge or justice, issue a writ of habeas corpus.

Finally, the Honorable Justice Joseph Story, in his “Commentaries on the Constitution” (1833), provides additional insight:

§ 1333.  In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus.  At the common law there are various writs, called writs of habeas corpus.  But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum...  It is, therefore, justly esteemed the great bulwark of personal liberty; since it is the appropriate remedy to ascertain, whether any person is rightfully in confinement or not, and the cause of his confinement; and if no sufficient ground of detention appears, the party is entitled to his immediate discharge.  This writ is most beneficially construed; and is applied to every case of illegal restraint, whatever it may be; for every restraint upon a man’s liberty is, in the eye of the law, an imprisonment, wherever may be the place, or whatever may be the manner, in which the restraint is effected.

So, we have confirmed that from the First Habeas Corpus Act until two generations after the ratification of the Constitution, we have a consistent definition and procedure as to the purpose and administration of Habeas Corpus.  Yes, 200 years of protection, that which was even true under monarchical government, from imprisonment under any law that is in violation of the Constitution.

So, what happens when the national government does not pay attention (rather, inattention) to the Constitution?

Although every state has a provision for habeas corpus within its constitution, for the sake of this discussion we will be using Florida, as this is the state where the story began.

Habeas Corpus and the Constitution

There are many rights protected under the Constitution and the Bill of Rights.  However, The Right of Habeas Corpus is defined as a Privilege.  Article I, Section 9, Clause 2, reads:

The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.

To understand why it is deemed a privilege, rather than a right, we need only understand that of all of the rights protected by the Constitution, only Habeas Corpus can be suspended.  Had the Founders not seen the necessity of suspending Habeas Corpus during “Rebellion or Invasion”, then Habeas Corpus would have been defined as a right, as were others enumerated therein, or within the Bill of Rights.  It is sufficient, however, to understand that they felt the necessity of including it.

From the Florida Constitution, Article 1 – Declaration of Rights, Section 13:

Habeas corpus.–The writ of habeas corpus shall be grantable of right, freely and without cost.  It shall be returnable without delay, and shall never be suspended unless, in case of rebellion or invasion, suspension is essential to the public safety.

Well, there you have it.  Without cost and without delay is, without a doubt, a right, as both the state and the federal government should treat it.

Court Cases and enactments affirming Habeas Corpus in the United States, during its first century

What better way to understand the significance of habeas corpus in the United States of America, then to look at previous court cases, both habeas corpus and non-habeas corpus, to see what influence it had on our relationship with the national government.

We will begin in the year 1833, with a non-Habeas Corpus case, to see what our relationship with the federal government was.  Mr. Barron owned a dock in Baltimore, Maryland.  The City of Baltimore, in dredging the river, made the area in front of Barron’s dock too shallow for normal traffic.  Barron filed suit against the City of Baltimore, arguing that under the Fifth Amendment to the Constitution, his property was taken without “just compensation”.  This case was heard by the United States Supreme Court, Chief Justice Marshall giving the opinion of the Court.  Understand that in this decision, the “general government” refers solely to the national government, and that “local government” refers to state and/or lesser governments.  Barron v. City of Baltimore, (32 U.S. 243):

…The constitution was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual states.  Each state established a constitution for itself, and in that constitution, provided such limitations and restrictions on the powers of its particular government, as its judgment dictated…  The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and, we think, necessarily, applicable to the government created by the instrument.

If these propositions be correct, the fifth amendment must be understood as restraining the power of the general government, not as applicable to the states.  In their several constitutions, they have imposed such restrictions on their respective governments, as their own wisdom suggested; such as they deemed most proper for themselves.  It is a subject on which they judge exclusively, and with which others interfere no further than they are supposed to have a common interest.

So, the Constitution was only between the people and the general government. The people of each state were free to decide what constitution and laws best suited them.

Marshall then explains the evidence in support of the proposition of that separation by reference to Article I, Sections 9 and 10, of the Constitution:

If the original constitution, in the ninth and tenth sections of the first article, draws this plain and marked line of discrimination between the limitations it imposes on the powers of the general government, and on those of the state; if, in every inhibition intended to act on state power, words are employed, which directly express that intent; some strong reason must be assigned for departing from this safe and judicious course, in framing the amendments, before that departure can be assumed…Had the people of the several states, or any of them, required changes in their constitutions; had they required additional safe-guards to liberty from the apprehended encroachments of their particular governments; the remedy was in their own hands, and could have been applied by themselves.

The concerns that lead to this separation of powers are explained:

Serious fears were extensively entertained, that those powers which the patriot statesmen, who then watched over the interests of our country, deemed essential to union, and to the attainment of those unvaluable objects for which union was sought, might be exercised in a manner dangerous to liberty.  In almost every convention by which the constitution was adopted, amendments to guard against the abuse of power were recommended.  These amendments demanded security against the apprehended encroachments of the general government- [and] not against those of the local governments…These amendments contain no expression indicating an intention to apply them to the state governments.  This court cannot so apply them.

We are of opinion, that the provision in the fifth amendment to the constitution, declaring that private property shall not be taken for public use, without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.

What?  The Constitution does not foreclose protection from the state government; only from the national government.  Well, that is exactly what Chief Justice Marshall said.

Perhaps another way to understand the limitations of the national government, is to look to a law enacted in 1825.  Article I, section 8, clause 17, grants Congress the power “to exercise exclusive legislation” over lands ceded to the United States by the state in which the land lies.

An Act more effectually to provide for the punishment of certain crimes against the United States, and for other purposes.  (March 3, 1825)

“That if any person or persons, within any fort, dock-yard, navy-yard, arsenal, armory, or magazine, the site whereof is ceded to, and under the jurisdiction of the United States, or on a site of any lighthouse, or other needful building belonging to the United States, the sight whereof is ceded to them [United States], and under their jurisdiction, as aforesaid, shall, willfully…”

Now, this law was enacted just 35 years after the first Congress sat under the Constitution.  What did they know that we do not know?  For them to punish you for crimes against property of the United States, the property had to be on land ceded to the United States, and jurisdiction also ceded to the United States.  That means the state had to relinquish its jurisdiction over the property.  Can there be any doubt that the Congress, in 1825, understood the limitations of their authority under the Constitution?

Perhaps now we can understand why it was decided that the Constitution did not extend its powers to the detriment of the state; why Congress should enact a law to protect its property only if that land where the property was had been ceded, so that the national government had jurisdiction over that land.  By looking at what Justice Marshall said, in Marbury v. Madison (5 US 137) in 1803:

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the legislature repugnant to the constitution is void.

Now, this was not a novel idea on the part of Justice Marshall, because in 1787, before the Constitution was ratified by the states, the North Carolina Supreme Court addressed the state legislature enacting a law that was in contradiction to the state constitution, when they said, in Bayard v. Singleton (1 N.C. 42):

But that it was clear that no act they could pass could by any means repeal or alter the constitution, because if they could do this, they would at the same instant of time destroy their own existence as a legislature and dissolve the government thereby established. 

Interestingly, they recognized that should such a law be upheld, it would have the effect of dissolving the government created by the North Carolina Constitution because that government violated the instrument of its own creation.  Does that concept also apply to the United States Constitution?

Now that we have a perception of the relationship of the national government to the people, and that being the perspective of those who lived in those times and rubbed shoulders with those who wrote and/or ratified the Constitution, we will look at what is, and, what is not, within the purview of the national government, to enact into law, under the authority of the constitution.

Stephen Ableman was a US Marshal; Sherman Booth had “aided and abetted” fugitive slaves.  Booth was held to “appear and answer” before the district court of the United States for the district of Wisconsin.

Booth made application for writ of habeas corpus to A. D. Smith, one of the justices of the Supreme Court of the State of Wisconsin, alleging that “the act of Congress of September 18, 1850, was unconstitutional and void” (the Fugitive Slave Act of 1850).

Booth was brought before the justice and the justice determined that “his detention was illegal, and ordered the Marshall to discharge him and set him at liberty, which was accordingly done.”

Ableman appealed to the entire Supreme Court of the State, which affirmed the decision of the associate justice.

Ableman then appealed to the United States Supreme Court, which was heard in 1858 (Ableman v. Booth [62 US 506]).  Justice Taney gave the Decision of the Court:

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts.  In the first case, it provides that ‘this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.’…  The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution…

So, if Congress “passed a law not authorized by its enumerated powers, it was not to be regarded as “the supreme law of the land”.  The test, then, is whether the Fugitive Slave Act was enacted in accordance with the Constitution.

This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government…if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void.

The United States Supreme Court, then, is to judge the Constitutionality of any law.  However, to do so, they must also hear the matter.  Habeas Corpus being the proper means of challenging such jurisdiction; then only by Habeas Corpus can such a challenge be made, and heard by the United States Supreme Court.  In this case, the Wisconsin Supreme Court did see fit to challenge the constitutionality of the Fugitive Slave Act.

However, if we look at the constitutionality of the Fugitive Slave Act of 1850, we find that it is constitutional, for the Constitution states, in Article IV, Section 2, clauses 2 and 3, respectively:

A Person charged in any State with Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

The authority to enact such laws is clearly stated in the Constitution.  The Fugitive Slave Act was enacted to provide statutory detail regarding the return of “persons” as well as punishment for violation of those provisions, of the Constitution.

Just 13 years later, in 1871, the Supreme Court of the state of Wisconsin supported another challenge to federal jurisdiction.  A minor, under the age of 18, named Edward Tarble, enlisted as a soldier under the name of Frank Brown.  Later, Tarble deserted, was “retaken”, and confined as a deserter.

Tarble’s father petitioned the court commissioner of Dane County, Wisconsin for a writ of habeas corpus.  The writ was issued and Tarble was brought before the court.  The court “[h]eld that the prisoner was illegally imprisoned and detained”, and ordered that he be discharged from custody.”

The officer detaining Tarble filed with the Supreme Court of the State, which affirmed the lower court’s discharge of Tarble.  The matter then advanced to the United States Supreme Court (In Re-Tarble (80 US 397).  The Court explains the separation of jurisdictions:

There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres.  Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement.  Neither government can intrude within the jurisdiction, or authorize any interference therein by its judicial officers with the action of the other.  The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories…  The Constitution and the laws passed in pursuance of it, are declared by the Constitution itself to be the supreme law of the land, and the judges of every State are bound thereby, ‘anything in the constitution or laws of any State to the contrary notwithstanding.’  Whenever, therefore, any conflict arises between the enactments of the two sovereignties, or in the enforcement of their asserted authorities, those of the National government must have supremacy until the validity of the different enactments and authorities can be finally determined by the tribunals of the United States.  This temporary supremacy until judicial decision by the National tribunals, and the ultimate determination of the conflict by such decision, are essential to the preservation of order and peace, and the avoidance of forcible collision between the two governments

Further on, the Court explains the procedure whereby the determination of jurisdiction can be challenged by a state court.  If the lower court determines unconstitutionality, and a contest as to jurisdiction still exist, then the Supreme Court of the United States will make the final determination.

State judges and State courts, authorized by laws of their States to issue writs of habeas corpus, have undoubtedly a right to issue the writ in any case where a party is alleged to be illegally confined within their limits, unless it appear upon his application that he is confined under the authority, or claim and color of the authority, of the United States, by an officer of that government…  And the process or orders, under which the prisoner is held, should be produced with the return and submitted to inspection, in order that the court or judge issuing the writ may see that the prisoner is held by the officer, in good faith, under the authority, or claim and color of the authority, of the United States, and not under the mere pretence of having such authority.

The dilemma is whether the lower court recognizes what appears to be a conflict in jurisdiction.  Should that lower court, accept, prima facie, that the officer of the United States is correct in his claim of jurisdiction (“in good faith“), or, should any doubt arise, “under the mere pretense of having such authority“, should that lower court hold the position of defending jurisdictions when there appears to be no constitutional authority, or, is in conflict with the laws of that state?

To accept that any federal officer can make a proper decision as to jurisdiction, and to leave that remedy solely to the federal courts, denies justice and leaves us with an impractical remedy.  In that same opinion (Tarble), Chief Justice Salmon P Chase, of the United States Supreme Court, in a dissenting opinion, says:

I cannot concur in the opinion just read.  I have no doubt of the right of a State court to inquire into the jurisdiction of a Federal court upon habeas corpus, and to discharge when satisfied that the petitioner for the writ is restrained of liberty by the sentence of a court without jurisdiction.  If it errs in deciding the question of jurisdiction, the error must be corrected in the mode prescribed by the 25th section of the Judiciary Act; not by denial of the right to make inquiry.

To deny the right of State courts to issue the writ, or, what amounts to the same thing, to concede the right to issue and to deny the right to adjudicate, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases…

Absent such ability of the states to challenge jurisdiction, at least when there is no direct Constitutional nexus (nexus is defined as a connection or series of connections linking two or more things together), would result in the states and the people subjecting themselves to absolute federal despotism.  This, clearly, was not the intent in either Tarble, or, the Constitution.  This means that an explicit grant of power or authority has to exist in the Constitution, otherwise an enactment is not legal, and, can be stricken down, as we will see.

Regardless of whether a state can defend its citizens against overreaching federal intrusions, the fact is that in Tarble, there was a nexus to the Constitution (that is, a Constitutional nexus) in Article I, Section 8, clause 12, and, Article II, Section 2, clause 1, to wit:

To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

The President shall be Commander in Chief of the Army and Navy of the United States…

For Congress to raise and support Armies, there must be a degree of control over the resources and obligations of that Army.  As the President, as Commander in Chief, there can be no doubt as to the implications of jurisdiction over the members of the Army, once they have enlisted and are still under that enlistment.  Tarble, regardless of age, upon his enlistment, was subject to the jurisdiction of the United States military system.

Conclusions:

We learned, from Barron v. City of Baltimore, that the Constitution applies only to the relationship between an individual and the “general government”.  That each state, when they adopted their constitutions, established both government and laws suitable to the people of that state.  The Constitution was a prohibition against federal intrusion into those matters left solely to the state.

We saw, in the act of 1825, that the federal government, to protect its own property, could only do so on lands ceded by the state to the federal government.  We can ponder whether the limits of jurisdiction were superfluous words, or, rather, were they simply more explicit, in defining the extent of their authority, when writing laws.

Chief Justice Marshall and the North Carolina Supreme Court recognize that a law in violation of the Constitution cannot be allowed to stand. North Carolina goes even further by pointing out that if the government created by a constitution violates the terms of the constitution, they void the constitution — and cease to exist under it.

From Ableman v. Booth, we see that federal jurisdiction requires a nexus to the Constitution.  We find the same nexus in In Re Tarble, and an explanation that both governments, state and federal, have their own spheres, laws, and tribunals for their enforcement, and that one cannot encroach upon the other.

 

The Fourteenth Amendment and its effect on the citizen

Next, though not a Habeas Corpus case, we will demonstrate that the Constitutional nexus must be clear and indisputable.  This case arises out of a statute enacted after the ratification of the 15th Amendment to the Constitution.  Two election officers were charged with violation of the Enrollment Act because they refused to receive and count a ballot from a negro, though they did so in accordance with state law.

The case is United States v. Reese (92 US 214), heard in 1875.

The 15th amendment (1870) reads:

Section 1–The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

Section 2–The Congress shall have power to enforce this article by appropriate legislation.

The Enrollment Act of 1870 was enacted by Congress under the authority of Section 2 of that Amendment.  The portions of that Act in question are the provisions of sections 3 and 4.

Section 3 states, in part:

Sec. 3. …  That whenever… any act is or shall be required to [be] done by any citizen as a prerequisite to qualify or entitle him to vote,… if it fail to be carried into execution by reason of the wrongful act or omission… of the person or officer charged with the duty of receiving or permitting such performance or offer to perform, or acting thereon…; and the person so offering and failing as aforesaid, and being otherwise qualified, shall be entitled to vote in the same manner and to the same extent as if he had in fact performed such act…”

The key here is that it says “any act”, without reference to “race, color, or previous condition of servitude.”  Because of the broadness of the phrase, the court determined that the entire section was beyond the authority granted by the 15th amendment, to wit:

The third section does not in express terms limit the offence of an inspector of elections, for which the punishment is provided, to a wrongful discrimination on account of race, &c.

The statute contemplates a most important change in the election laws.  Previous to its adoption, the States, as a general rule, regulated in their own way all the details of all elections.

Section 4 states, in part:

Sec. 4. That if any person, by force, bribery, threats, intimidation, or other unlawful means, shall hinder, delay, prevent, or obstruct, or shall combine and confederate with others to hinder, delay, prevent, or obstruct, any citizen from doing any act required to be done to qualify him to vote or from voting at any election as aforesaid, such person shall [penalties listed].

Again, we have a very broad brush, with no reference to “race, color, or previous condition of servitude”.  The court responded:

[W]e find there no words of limitation, or reference even, that can be construed as manifesting any intention to confine its provisions to the terms of the Fifteenth Amendment.  That section has for its object the punishment of all persons, who, by force, bribery, &c., hinder, delay, &c., any person from qualifying or voting.  In view of all these facts, we feel compelled to say, that, in our opinion, the language of the third and fourth sections does not confine their operation to unlawful discriminations on account of race , &c.  If Congress had the power to provide generally for the punishment of those who unlawfully interfere to prevent the exercise of the elective franchise without regard to such discrimination, the language of these sections would be broad enough for that purpose.

We are, therefore, directly called upon to decide whether a penal statute enacted by Congress, with its limited powers, which is in general language broad enough to cover wrongful acts without as well as within the constitutional jurisdiction, can be limited by judicial construction so as to make it operate only on that which Congress may rightfully prohibit and punish.  For this purpose, we must take these sections of the statute as they are.  We are not able to reject a part which is unconstitutional, and retain the remainder, because it is not possible to separate that which is unconstitutional, if there be any such, from that which is not.  The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there.  Each of the sections must stand as a whole, or fall altogether.

Therefore, in this instance, since there was no constitutional nexus, Sections 3 and 4 were struck down as unconstitutional.  It appears that if any law is unconstitutional, then it is no law, at all.  However, shortly, we will see that a new source of laws, outside of the Constitution, will be put in place – though only to those who allow it.

Next, we will look at another Habeas Corpus case, which demonstrates the limitations of jurisdiction of federal law, as we saw in the Act of 1825.  We will also see what establishes those spheres, laws, and tribunals for enforcement, as well as where jurisdiction is limited by the geographic boundaries and current status of certain parts of the United States.

The incident, for which Charles Mason Lane was tried, occurred in the Oklahoma territory, or, Indian territory.  The trial was held in the “district court of the United States in and for the district of Kansas.” 

The charge was,

“on or about the 4th day of July, in the year of our Lord one thousand eight hundred and eighty-nine, at that part of the district of [judicial] Kansas aforesaid, the same being a place and district of country under the exclusive jurisdiction of the United States, and within the exclusive jurisdiction of this court, with force of arms in and upon one Frances M. Skeed, a female under the age of sixteen years, then and there being, violently and feloniously did make an assault, and her, the said Frances M. Skeed, then and there, forcibly and against her will, feloniously did ravish and carnally know [Skeed]…”

Associate justice Samuel Miller gave the decision in In Re Lane (135 US 443), on April 28, 1890.

The law in which Lane was alleged to be in violation of was

“the act of congress approved February, 9, 1889, c. 120, (25 St. 658,) under which defendant is indicted and convicted, it is provided ‘that every person who shall carnally and unlawfully know any female under the age of sixteen years, or who shall be accessory to such carnal and unlawful knowledge before the fact, in the District of Columbia or other place, except the territories, over which the United States has exclusive jurisdiction, or on any vessel within the admiralty or maritime jurisdiction of the United States, and out of the jurisdiction of any state or territory, shall be guilty of a felony, and when convicted thereof shall be punished by imprisonment at hard labor, for the first offense, for not more than fifteen years, and for each subsequent offense not more than thirty years.’

And in the decision, in which a writ of habeas corpus was denied, we find:

“We think the words ‘except the territories’ have reference exclusively to that system of organized government long existing within the United States, by which certain regions of the country have been erected into civil governments.  These governments have an executive, a legislative, and a judicial system.  They have the powers which all these departments of government have exercised, which are conferred upon them by act of congress; and their legislative acts are subject to the disapproval of the congress of the United States.  They are not in any sense independant governments…  Yet they exercise nearly all the powers of government under what are generally called ‘organic acts,’ passed by congress, conferring such powers on them.  It is this class of governments, long known by the name of ‘territories,’ that the act of congress excepts from the operation of this statute, while it extends it to all other places over which the United States have exclusive jurisdiction.  Oklahoma was not of this class of territories.  It [Oklahoma territory] had no legislative body.  It had no government.  It had no established or organized system of government for the control of the people within its limits, as the territories of the United States have, and have always had.”

What can we conclude from this?  The States each have “have an executive, a legislative, and a judicial system”; recognized, or organized, territories, “have an executive, a legislative, and a judicial system”.  However, those lands that are not within either a state or an organized territory, under the authority granted by the Constitution, in article IV, section 3, clause 2, grants Congress the “Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belong to the United States…”

We have come to assume that all laws enacted by Congress, absent the limiting phraseology, act upon all of us.  That assumption, however, is in contradiction with the Constitution.  Clearly, in times past, those separate spheres; those limitations on jurisdiction; and the creation of laws, were well-defined and limited.  It is evident that the state had the right to make laws that were not in conflict with the Constitution.  How, then, could the federal government enact laws that would be in conflict, or contradiction, to state laws that are not in conflict with the Constitution?  It is an untenable situation to think that one would have to decide which of two conflicting laws he was bound to abide by.

Let us see if there is another situation that might allow the general government to act upon someone that it does not have lawful authority to act upon.

To understand “standing”, the right or obligation to appear in a certain court, we have to look as things were before the ratification of the Fourteenth Amendment.  This matter comes to light, and understand this, that it is a very significant point in dealing with the judicial system, in Dred Scott v. Sandford (60 U.S. 393), heard in 1856.  In this decision, notwithstanding the subject of the case, rather, with consideration of a rather obscure but significant portion of the decision, we find that Scott had no standing.  Scott was a freed slave, as such, he was not deemed a citizen capable of entering the federal judicial system.  At that time, most states would not allow a negro to testify against a white man, or sit on a jury.  Regardless of your present perspective, that was the law, at that time.  However, the Court decided to hear the case, anyway. 

“That plea denies the right of the plaintiff to sue in a court of the United States, for the reasons therein stated.  If the question raised by it is legally before us, and the court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.  It is suggested, however, that this plea is not before us; and that as the judgment in the court below on this plea was in favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.”

Sandford “plead over” (he filed with the court), and, in so doing, he failed to challenge the prohibition (absence of jurisdiction) of Scott’s lack of right to enter the jurisdiction of the court.  So, what we have is, if I don’t challenge the jurisdiction of the court, instead, I plead, or otherwise fail to challenge jurisdiction, the court may deem that the right to challenge as waived and the court is free to proceed.

Now, we understand that if we assume that we have to submit to the court, when charged with any crime, then the court will assume that we have ‘granted’ them jurisdiction.  This does not mean that you are not subject to the court’s jurisdiction in certain cases, such as counterfeiting, treason, or any law passed within the authority granted by the enumerated powers.  This is, however, very important in securing your right to Habeas Corpus — to challenge the lawfulness of the law that you are charged with violating.  As we proceed, you will begin to understand.

As you have just seen, Scott was allowed to proceed in court, since Sandford failed to object.  If Sandford had objected to Scott’s right to go to that court, the case would have stood, as had been previously decided by the state court – and in Sandford’s favor.  It was Scott that appealed the lower court’s decision.  Therefore, when there are two classes of people, it is important to differentiate between those two classes, and, to determine which class you are, and, whether the law, you are charged to be in violation of actually applies to you.

In 1868, something occurred that changed the nature of the government and the people of the United States; the 14th Amendment was ratified.  It reads, in part:

Section 1–All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

Let’s look closely at this sentence.  “All persons born or naturalized in the United States,” well, that is pretty inclusive.  However, the next phrase, “and subject to the jurisdiction thereof,” limits that inclusiveness to those “subject to the jurisdiction thereof.”

As we have seen from the previous cases, those who were citizens before the 14th Amendment was ratified, were not “subject to the jurisdiction thereof,” except when there was a constitutional nexus.

We have one class of people (Citizens), who created the Constitution.  We have another class of people (citizens) that were created by the Constitution.  There is nothing in the Constitution, or the 14th Amendment, that dissolved the first class; therefore, we must assume that it still exists, andm we will see that the Supreme Court still recognizes this fact.

So, the question arises, did the 14th Amendment change the nature of those who were already citizens?  The answer can be found in the next case.

It was over 40 years after the 14th amendment was ratified (1908) that this next case was heard.  Albert C. Twining and David C. Cornell were convicted of providing “false papers” to the state banking examiner.  They were sentenced to prison and Twining appealed to the United States Supreme Court, based upon his Fourth Amendment rights.  He argued that the requirement to turn over papers to the examiner, absent a court order, denied him due process clause under the 14th Amendment.  Twining and Cornell were both citizens of New Jersey.  Since they were citizens of New Jersey (state), they were not within the jurisdiction of the Court; therefore, the Court had no jurisdiction (federal) over them.

Justice Moody provided the decision of the court in Twining v. State of New Jersey (211 US 78):

In order to bring themselves within the protection of the Constitution it is incumbent on the defendants to prove two propositions: First, that the exemption from compulsory self- incrimination is guaranteed by the Federal Constitution against impairment by the states; and, second, if it be so guaranteed, that the exemption was in fact impaired in the case at bar.  The first proposition naturally presents itself for earlier consideration.  If the right here asserted is not a Federal right, that is the end of the case.  We have no authority to go further and determine whether the state court has erred in the interpretation and enforcement of its own laws.

That last point, “If the right here asserted is not a Federal right, that is the end of the case“, will lead to the final decision of the Court.  Does it also hold that if no right is conferred, that there is an absence of jurisdiction?

We do not pass upon the conflict, because, for the reasons given, we think that the exemption from compulsory self-incrimination in the courts of the states is not secured by any part of the Federal Constitution.

Conclusions:

This tells us that there is, without a doubt, a limitation on the jurisdiction of the federal government.  If the Constitution does not provide for jurisdiction, they cannot assume to have jurisdiction, except as was noted.  If Twining had been a citizen created by the 14th Amendment, he would have been afforded the due process protection of the 14th Amendment.  Not being of that class of citizen, he came solely under state laws and protection of the state Constitution.

As we saw in Barron v. Baltimore (1833), the federal Constitution provided only protection from the federal government.  Twining v. State of New Jersey (1908), shows that such federal jurisdiction did not apply to those who were not of the nature of the citizens created by the 14th Amendment.

Dred Scott v. Sandford demonstrated that if we acquiesce to the jurisdiction of the court, whether proper or not, the court may assume that you are there properly, and proceed, absent any other consideration of jurisdiction.

Twining v. State of New Jersey, particularly, brings home the point that, more than two generations after the 14th Amendment was ratified, there was still a distinction between those who were citizens of a state and those who were not afforded the protection of the Constitution, if the matter was between them and state laws and their respective constitutions.

The Fourth Branch of Government, and, who is subject to that unconstitutional branch

We are lead to believe that the United States Supreme Court rules on the constitutionality of a law when a case is brought before it.  We are often quite surprised when it appears that the Supreme Court ruled contrary to the Constitution.  Perhaps an understanding of another “separation” that exists, though not of the nature of the person, rather the nature of the laws themselves.

For at least a few decades, those with direct relationships with the federal government were being subjected to decisions that did not seem quite consistent with the Constitution.  It was not until 1936, however, that Justice Brandeis provided insight into the changing nature, or perhaps more correctly, expanding nature of the court.  The case was Ashwander v. Tennessee Valley Authority (297 US 288).  Justice Brandeis, in a separate but concurring decision, provided insight into the evolving role of the United States Supreme Court, wherein he said:

The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision.  They are:

1. The Court will not pass upon the constitutionality of legislation in a friendly, nonadversary, proceeding, declining because to decide such questions ‘is legitimate only in the last resort…

2. The Court will not ‘anticipate a question of constitutional law in advance of the necessity of deciding it.’  ‘It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case.’

3. The Court will not ‘formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied.’

4. The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of.  This rule has found most varied application.  Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter…

5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation.  Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right.  Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained.

6. The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.

7. ‘When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided. 

Didn’t Justice Brandeis just tell us that they would not rule on the constitutionality of a matter before them, if they could find any way to avoid such ruling? 

He also speaks of “statutes”.  What statutes could be enacted by Congress, if they were not consistent with the Constitution?  Well, Congress has the power of “exclusive Legislation” (Article I, Section 8, clause 17), and the power to “make all needed Rules and Regulations” (Article IV, Section 3, clause 2) that authorize enacting laws under certain circumstances.  Suppose they enact a law that would fall within this scope; however, they allowed people to voluntarily “subject” themselves to that law by partaking in perceived benefits, or, that the people do not fully realize the true nature of such a law and who it applies to.

To simplify this, let’s suppose that you are watching some people playing a game of Monopoly.  If you decide to join a game of Monopoly, once you have rolled the dice, you are bound by the rules of the game.  If, however, you do not choose to play Monopoly, you are not bound by the rules of the game.

After all, Justice Brandeis said that “The court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.”  So, by some intricate means, if you have sought a benefit, under a statute, you may have just left the Constitution behind.

Now, this would be understandable if particular circumstances, say of your business, warranted cooperation with a government agency.  This appears to be the case, at the time of the Ashwander decision.

However, in the next 10 years, things were to change.

We all know that we have a tripartite (composed of or divided into three parts) form of government.  The three branches, legislative, executive, and judicial, were created by the Constitution, in the first three articles.

What if we had four branches of government?  Would that fourth branch be unconstitutional?  Or, could it exist under the provisions of the previously mentioned Article I, Section 8, clause 17, and/or, Article IV, Section 3, clause 2, respectively?

The Congress shall have the 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 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…

The Congress shall have Power to dispose of and make all needed Rules and Regulations respecting the Territory or other Property belonging to the United States…

Just 10 years after the Ashwander decision, the Congress enacted the Administrative Procedure Act of 1946.  Representative Pat McCarran (Democrat from Nevada) submitted the Bill, who also gave us some insight into its purpose, when he said (from the Congressional Record, March 12, 1946):

“We have set up a fourth order in the tripartite plan of government which was initiated by the founding fathers of our democracy.  They set up the executive, the legislative, and the judicial branches; but since that time we have set up fourth dimension, if I may so term it, which is now popularly known as administrative in nature.  So we have the legislative, the executive, the judicial, and the administrative.”

“Perhaps there are reasons for that arrangement.  We found that the legislative branch, although it might enact a law, could not very well administer it.  So the legislative branch enunciated the legal precepts and ordained that commissions or groups should be established by the executive branch with power to promulgate rules and regulations.  These rules and regulations are the very things that impinge upon, curb, or permit the citizen who is touched by the law, as every citizen of this democracy is.

“Senate bill 7, the purpose of which is to improve the administration of justice by prescribing fair administrative procedure, is a bill of rights for the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government.  It is designed to provide guarantees of due process in administrative procedure.

“The subject of the administrative law and procedure is not expressly mentioned in the constitution, and there is no recognizable body of such law, as there is for the courts in the Judicial Code.

“Problems of administrative law and procedure have been increased and aggravated by the continued growth of the Government, particularly in the executive branch.

Therefore, the question arises as to whether the administrative branch of government, “the fourth dimension”, extends to all people, or just “the hundreds of thousands of Americans whose affairs are controlled or regulated in one way or another by agencies of the Federal government“.  Given that the estimated population of the United States in 1946 was over 141 million people, which would mean that less than one percent were among those “hundreds of thousands of Americans“.

If we assume the former, that it only applies to those who come under the Administrative Procedure Act of 1946, that leaves cause to wonder whether the remaining 99 percent have fallen under the influence of the Act by other means, or simple inattention.  If inattention, is it because they entered the court not understanding that they are entering the court that was acting in the capacity of an administrative tribunal?

If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it.  If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.

Later, on May 24 (from the Congressional Record), Representative John Gwynne of Iowa provides insight into what “rule-making” is, when he said:

“After a law has been passed by the Congress, before it applies to the individual citizens there are about three steps that must be taken.  First, the bureau having charge of enforcement must write rules and regulations to amplify, interpret, or expand the statute that we passed; rulemaking, we call it.  Second, there must be some procedure whereby the individual citizen who has some contact with the law can be brought before the bureau and his case adjudicated…  Finally, there must be some procedure whereby the individual may appeal to the courts from the action taken by the bureau.”

“Amplify, interpret, or expand”?  Was the intention of the Act to apply only to the hundreds of thousands, who were among that less than one percent?  Or, was the intention to circumvent the Constitution by establishing a despotic regime that was no longer bound by the Constitution?

Of course, if you have followed that second step, you will have sought a benefit under the statute, and thenceforth, be bound by the rules of the statute (administrative agency).

Conclusions:

By 1936, with the Ashwander v. Tennessee Valley Authority decision, we have conclusive proof that the United States Supreme Court, which, as suggested by Chief Justice Marshall, is the interpreter of the Constitution, has been transformed into one that will avoid addressing constitutionality of a matter before it, “unless absolutely necessary”.  Since the court cannot offer legal advice, their decision is based solely upon that information presented to them.  They have not violated the Constitution; they have simply assumed that you have entered into an agreement with an agency of the government, and therefore you are bound by all of the conditions of that agreement.

If we recall what Taney said in Dred Scott v. Sandford, if one fails to challenge jurisdiction, the Court will assume that it has the authority to hear the matter before it.  If so, then Habeas Corpus is the only means by which that overreaching government can be challenged as to the constitutionality of a law whereby they have sought to detain someone for a crime that is not within their jurisdiction.

Then, just 10 years later, with the Administrative Procedure Act of 1946, we find Congress, refining the means of avoidance of the Constitution by creating a fourth branch of government.

 

Summation – that puts all of the pieces neatly into place

Now that we have the historical elements, from prior to the Constitution through recent times, we can put these pieces together so that we may understand Habeas Corpus, and how we can restore it to its proper role.  Since we have now put aside our misconceptions and preconceptions, we will put it together from the beginning.

We know that “the purpose of [habeas corpus] is to test the legality of the detention or imprisonment“.  We know that the false imprisonment may be a result of “the ferocity of the times, and the occasional despotism of jealous or usurping princes” or, that “the oppression does not always arise from the ill nature, but sometimes from the inattention of government“, and, that “it is the great remedy of the citizen… against arbitrary or illegal imprisonment“.

If we consider the implications of this, we can see that one’s imprisonment under a law that is unconstitutional can be legally challenged by filing a Demand for Habeas Corpus; thus, an individual may very well be able to nullify a law that is either unconstitutional or inapplicable.  This is not a State claiming that an enactment of Congress is unconstitutional, as there is no provision in the Constitution that allows a State to act in that capacity, except by granting Habeas Corpus, at the state level, and allowing that challenge to go to the United States Supreme Court, to be judged as to its constitutionality.  This does not preclude going directly to the United States Supreme Court, if the charges are federal, and otherwise in violation of the Constitution, if the state and lower courts do not provide a remedy.

We have also seen that a response to a Demand for Habeas Corpus is supposed to be considered timely, even if the judge or justice is on vacation.  After all, Liberty is one of the ideals upon which this country was founded.  When a man’s liberty is unjustly taken, there is no excuse for delay in restoring his liberty.

We have seen that in 1833, in Barron v.  City of Baltimore, though Barron sought protection under the Fourth Amendment, there was an absence of jurisdiction; that the Constitution applied only to the federal government; and, that the people of each state were able to determine which laws would apply to them, since they had legislative, executive, and judicial branches, within their respective states.  As Justice Marshall said, the Constitution “is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.”

We have also seen that, in 1825, and enactment by Congress to provide for punishing those who damage government property was limited to land, “ceded to, and under the jurisdiction of the United States.”  We also saw that the 1890 enactment that Lane was charged with applied only “in the district of Columbia, or other place, except for the territories, over which the United States has exclusive jurisdiction… and out of the jurisdiction of any state or territory.”

In the former, was it because Congress did not intend to protect their property if it was not in land ceded, or was it because they were explicit in defining the extent of that authority granted by the Constitution?  If the latter, did they not care if it occurred in a state or established territory, or did they realize that when executive, legislative, and judicial branches existed under the will of the people, that federal jurisdiction ceased, unless authorized specifically by the Constitution?

In Ableman v. Booth, in 1858, we saw that the Fugitive Slave Act of 1850 had a direct nexus with the Constitution.  The Act was a statutory enactment supporting the enforcement of Article IV, Section 2, clauses 2 and 3, of the Constitution.

In In Re Tarble, 1871, we also find the nexus to the military provisions of the Constitution.

Later, in 1875, and, United States v. Reese, we find that an amendment to the Constitution did not grant authority to punish beyond the explicit intent of the 15th Amendment.  Federal charges were dismissed because there was no federal jurisdiction created by that amendment.

So, clearly, the requisite for a constitutional nexus has been established in both Habeas Corpus and other court cases.  “There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres.”

Before we begin looking into the chicanery that led to the obfuscation of Habeas Corpus, we must first look at our relationship with the court.  In 1856, the case was Dred Scott v. Sandford, we find that Scott had no standing, under the laws of the United States, to take his matter before the United States Supreme Court.  Sandford, however, failed to challenge Scott’s standing, leaving it upon the court to decide whether to hear the case or not.  This established precedence that allows the court to proceed, if objection is not made timely.  Quite simply, if you enter court and do not properly object, the court may assume jurisdiction, even though not warranted by the law.

Now, we have learned that, except in certain circumstances, we were not subject to the jurisdiction of the United States.  So, if 4th Amendment says that it extended to those who were “subject to the jurisdiction” of the United States, would it also include those who, prior to the amendment, were not subject to the jurisdiction of the United States?

Now, we learned from Dred Scott that Scott, a former slave, was not subject to jurisdiction.  That, however, was prior to the 13th Amendment, which freed the slaves.  Since most states would not recognize freed slaves as citizens, this new class of people became subject to the federal jurisdiction, by virtue of the Amendment.  They, then, were “subject to the jurisdiction” of the United States.

The 14th Amendment, then, only applied to those who were not citizens at the time of its enactment.

We see this confirmed, in 1908, in Twining v. State of New Jersey.  Twining and Cornell were citizens of New Jersey.  They had not been incorporated into that new class of citizen created by the 14th Amendment.  Since they were not citizens under the 14th Amendment, they were treated just as Barron was in 1833 – they were outside of federal jurisdiction.  Had they been citizens under the 14th Amendment, they would have been under the jurisdiction of, and afforded the protection of, the 14th Amendment.

In 1936, Justice Brandeis, in Ashwander v. Tennessee Valley Authority, explained the rules that the Supreme Court had adopted over the past few decades.  Those rules provide us insight into the workings of the court in which they endeavor to avoid ruling on the constitutionality of a matter before them, if at all possible, and if not possible, to make its ruling as narrow as possible.

So, the courts are willing to take a case presented to them, whether proper or not; and to avoid ruling on the constitutionality, if at all possible.  What else could go wrong?

Though there had been administrative agencies prior to the Administrative Procedure Act of 1946, there had not been a codification that provided for the enforcement of Administrative Agency rules.  So Congress created, by their own admission, a fourth branch of government.  At that time, this fourth branch affected less than one percent of the population.  However, by failure, on the part of the people, to realize their evolving relationship with the federal government, we have come to a point in time where over 99% of the people find themselves subject to the these administrative agencies.

Habeas Corpus is the means by which we can challenge the jurisdiction of many federal laws, at least as they apply to us, effectively nullifying those laws.  We simply have to learn how to not roll the dice, so that we are not bound by the rules of the game.

 

 

For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended

 

 

Tahoe Regional Area Plan (TRAP)
by K. M. Heaton  (Aug. 28, 1913 – Jun. 6, 2000)

(Note: This article was printed in the Outpost of Freedom newspaper on February 5, 1993.  The date that it was written is unknown.)

While citizens around the country are becoming alarmed at the regional activity in their areas which threatens their own local government and their rights to use their property as they choose, there are some in El Dorado and Placer Counties in California, and in Douglas, Washoe and Ormsby Counties in Nevada who know only too well that the alarm is justified.

Those El Doradoans who live in what is known as “the Tahoe Basin” have come face to face with the hard reality of planning-by-government, and they rue the day when the Tahoe Regional Area Plan was placed over their Constitutional government.

Even those who wished for oversight to “preserve the beauty of the lake“, have lived to regret the imposition of the controls they thought they wanted to achieve that goal.  The controls fell far short of their stated purpose, but laid a heavy hand on the lives of all the citizens in those five counties – even those who did not live in the Basin.

Like most of their fellow Americans, the residents of the Tahoe Basin lived a workaday existence.  They exhibited minimal political awareness.  Very few took any interest in partisan activities.

Surrounded by mountain peaks, Tahoe was isolated from the mainstream of American life, except for the summer tourist population, which in recent years had been matched in winter by skiers enjoying the snow-clad mountains.

Even longtime residents were at a loss when the California and Nevada Legislatures took the step that placed them and their future outside the protection of the United States Constitution.

There had been warning signs, of course.  There always are, if people only knew.  But such a radical step as took place under the Tahoe Plan was inconceivable.

It should not have been, for the fact that something was in the wind had not been a secret for many years, just as it is no secret today that government everywhere is facing a similar assault – and not just in the United States.  When George Herbert Walker Bush announced the creation of a “New World Order“, he simply made official what students of the regional movement had known for years.

But the fact is that there were none on guard to read the warning signals, to look beyond them and find out why they were raised, and what they would portent.

At Tahoe, as elsewhere, citizens actually took part in the general planning for “economic development”, without knowing what that really meant, nor what the “plan” might be, nor how their personal futures were directly tied to what was being done.  Certainly, no thought was ever entertained that it meant an end to their guarantees under the Constitution.

In El Dorado County, the “general plan” was brought in through a long-term effort, initiated at the federal level, but energized by some in the power structure of the county.  The first direct move into the county took place without fanfare, and unknown to most citizens.  There is a question if even the elected officials of the time were aware of it, for there is no indication of their complicity as a body.  Of all the people whose involvement can be identified, none were elected and only one is a name recognized five years later in county activity.

Since this was the first overt step in El Dorado toward regional governance, and since it was taken by authority of the United States Department of Agriculture, and since it was part of “a nationwide inventory” reputedly set up by the Secretary of Agriculture, it has significance for every local government in the nation.

Throughout 1958 and ’59 (yes, it was that long ago, and even longer, as you will learn), groups of “Resource agency” representatives held meetings as part of a national program to provide data “useful to federal, state and local agencies and private interests for efficient planning, programming, research, administration and legislation, affecting soil and water resources.”  So said the Report this group issued for El Dorado County.  (And for how many others?)

Using the so-called “population explosion” as the stated impetus, these early planners laid the foundation for their final recommendations, saying that “nothing is more important to health, welfare, and general happiness of the people than to maintain the right relationship or balance between people and these basic resources.”  (Apparently these ‘experts’ never head of the ‘Declaration of Independence’.)

The Report winds up with a ‘summary’ of their findings in a “Conservation Needs Inventory“.  There it was predicted (with out substantive data to use as a base) that the El Dorado population would increase from 50 to 100% by 1975.  (Quite a disparity there! and it did not).  They stated that this increase would create new problems in land use and conservation.  They asserted that this would affect as much as one third of “the county’s land” and influence its economy.  Then they opined that “Long term land-use planning is needed“, and offered the data in their Report as a base for such planning.

The “data” they offered refuted their own premises, and confirmed that land use planning was the single goal.

A NECESSARY PRELIMINARY

In a book entitled “New Worlds for Old”, written in 1908, H. G. Wells, Fabian Socialist historian, and long-time promoter of the New World Order, described the techniques needed to achieve the Fabian goal.  He wrote:

“…the reconstruction of our legislative and local government machinery is a necessary preliminary to Socialization in many directions.”

Those who refuse to accept the fact of the long effort to prepare the United States to surrender its sovereignty to a New World Order either have not done their homework, or they are collaborators or co-conspirators.  The record is too clear to admit any other evaluation.

The roots of regionalism existed for almost a century, before the fruit began to ripen.  From official reports, the flowering began in 1913.  The “necessary preliminaries” are constantly referenced in their working papers, both in the past, and still today.  This was also the case in the matter of the system imposed on the Tahoe Basin.

The care with which the wheels were greased in creating the machinery to turn this nation into a totally managed and controlled society in preparation for the time to come when it could be merged with third world countries was never more evident than in the source material leading to the so-called “Tahoe Compact”.

Lacking knowledge of the intent at the time the Tahoe grab was begun, the end would have been hard to foresee.  As a collaborating legislator in California smirkingly told an irate citizen who demanded to know how the Tahoe Plan could have taken shape without those living there being aware of it:

“We played it close to our chest.”

That may have been the first honest statement he made in his political career, but it was the sad truth – not just about Tahoe, but about whole regional movement.

Who could have guessed, for instance, that the first successful attempts to provide subventions and grants-in-aid to the States would have established a precedent that would give the federal government control of local districts by means of perversion of the “welfare clause”?

Probably the last real president of these United States, Grover Cleveland, recognized the unConstitutionality of such a move, but even he did not see the bigger picture of a planned destruction of the United States Constitution, when he reported to the Congress:

“I return without my approval House Bill #10203.  It is represented that a drought in the State of Texas (has resulted) in a failure of the crops… I am willing to believe that … a donation of seed… would serve… but I can find no warrant for such an appropriation in the Constitution, and I do not believe that the duty of the general government ought to be extended to the relief of individual suffering.”

“A prevalent tendency to disregard the limited… power and duty should, I think, be steadfastly resisted, to the end that, though the people support the government, the government should not support the people.  Federal aid, in such cases, encourages the expectation of paternal care… and weakens the sturdiness of the national character…”

So you see, even in 1887, the tendency was “prevalent” to provide what was to become a “pork barrel” for federal and state officials to dip into, and to “spend and spend and elect and elect“.  Once this protective barrier was broken in 1913, a flood of “federal money” was released – capable of buying, not just individuals, but whole sections of government.

Referring to the argument that such appropriations are Constitutional under the Constitution, then-Supervisor William V. D. Johnson of El Dorado County pointed out:

“There is no ‘welfare clause’… That phrase in the Preamble ‘to promote the general welfare’ simply means that we were adopting the Constitution to ensure the general welfare by clearly enumerating the powers given to the federal government and by reserving the remainder to the States…”

While the Constitution retained the intent of the Founding Fathers, that was the recognized meaning, as clearly enunciated by Grover Cleveland.

It was this phrase in the Preamble which, perverted by the Planners, made possible the usurpations of the Roosevelt ‘brain trusters’, made possible the usurpations of the Planners, and prepared the way for the Tahoe TRAP.  But the programs of the 30s were too bold.  They awakened resistance in a people still knowledgeable of the meaning of their government, and the way it should function.  These began to ‘view with alarm’, and to react.

Then the regionalist adopted the argument of the Constitutionalists, and made it serve them!  They demanded a return of the usurped means of taxation of the States and local governments, and then they created “intergovernmental cooperation” to divert State sovereignty for their own purposes.  By this ruse they brought “interstate cooperation” into State legislatures, and succeeded in creating appointed “Commissions on Interstate Cooperation” to carry forward the work of 1913s, Council of State Governments.

It was the California Commission on Interstate Cooperation (CCIC) which spearheaded the reconstruction of our State and local government machinery, and to prepare for the planned change into appointive governance – and for the regional “compact” at Tahoe, sitting astride the boundaries of California and Nevada, and in so doing eliminating the border between the states there.

 

BAITING THE TRAP

Official interference with the lawful operation of the governmental machinery provided in the Constitution for the United States of America had its beginnings early in this century, but it was not until the 1930s that the Plan for turning elective government into appointive administrative governance was exposed.  This was spelled out in a series of Reports issued by Roosevelt’s National Resources Committee (NRC, aka National Resources Planning Board, NRPB).

In the manner of the Tahoe Regional Area Plan, there is not only a direct linkage with the NRPB in the person of a “principal collaborator” of the NRPB, but there exists an entire series of Reports in California, which demonstrate a close relationship to the recommendations of the Board.  These Reports show the shallowness of the purported reasons for usurping the legal government at Tahoe, and its replacement by the tyrannical Agency that now rules the Basin.

Among the numerous projects promoted by the NRPB and its Committees, (many of which are now only too familiar), was a Call for “intergovernmental cooperation” and the “greatest possible use” of 1913s, state Leagues of Cities and Municipal Officers.  The States responded to this Call less than two years after it was issued, and several years before Congress apparently even became aware of it and repudiated both the Report and the NRPB!

The California Commission On Interstate Cooperation

The California Commission on Interstate Cooperation (CCIC) was established in 1939 and, according to its annual reports, was “substantially identical” to CICs in 43 other States.  By 1948, all states had CICs.

CCIC was formed under a “uniform act” (one of 1913s so called “model laws”) as, it may be assumed, were the other States’ CICs.  Under the California statute, the State was made a “participating member of the 1913 Council of Governments.

The stated purpose of the CICs was “to furnish a means” to deal with “interstate problems” specifically with interstate compacts, uniform and model legislation of the several states, promotion of regional programs, and reciprocal administrative acts or agreements to “develop interstate unity“.

In effect, the CICs are a “government within a government”, and have other goals and means than those provided for in the Constitution.

The first five years of CIC activity around the nation are summarized in the first Report of the California CIC, issued in 1945.  Those who wonder “How could these things to on without our knowledge?” would wonder no more after reading the chronological record of those five years – years during which most Americans were intent on the events of WW 2, and were not even remotely thinking about losing their tried and true government.

But this is the story of Tahoe, so for the moment that narrative must be bypassed.

It was the 1949 Report of CCIC that first brought up the Plan for Tahoe.  The Report does not say what the Governor of Nevada said to the Governor of California which led the latter to direct his CCIC to take on “a study of certain problems related to … suppression of diseases transmissible to humans from wild rodents, adequacy of good water supply, real estate subdivision practices, and pollution of the waters of Lake Tahoe…” but that was the beginning of the desperate twenty year battle to erase the first state boundary through regionalism, and to end representative government for that area.

CCIC and NCIC created a Joint Committee on Tahoe, and a year later, that body added the “population explosion” to the agenda.  In succeeding years, fire protection, sewage and garbage disposal, fishing licenses, drainage and trucking were additional bait for the TRAP.

Endless surveys were conducted.  Perhaps the most interesting of these was one purportedly intended to obtain “public input” on what would be a desirable level of the waters of the Lake!  Strangely, the 1959 CCIC Report states that this was a “campaign to acquaint Lake Tahoe residents with the problems relating to the… Lake which affect them, and also to develop a desire among these residents to work together in proposing acceptable solutions to some of these problems.  This Report also says that these surveys were made to contain the necessary information that would lead to “satisfactory completion of a compact.”  No one interviewed about this remembered being told that!

But at long last, a proposal for a compact was finally developed in 1963, and legislation to implement it was introduced in both State Legislatures.  However, while California was still debating the issue, Nevada’s Legislature killed the twin bill.  On learning of this development, then occupant of the California Governor’s Office, Edmund G. “Pat” Brown”, Sr., expressed his regrets, but added, “This is not the end.”

And of course it wasn’t.  Regionalists never give up on key issues, and Tahoe was one such.  CCIC began immediately to explore further ways to obtain this goal.  Creation of a bi-state park was an alternative they considered, but the prior eagerness of the two Legislatures seemed to have cooled and there was no enthusiasm for this.

Officials in local governments involved with Tahoe had begun to smell something fishy.  Some even recognized the determined effort to regionalize Tahoe and they balked – “…reluctant,” CCIC reported, “to relinquish their authority.”  (Ed. comment:  How reactionary!)

When the Bill which finally created the Tahoe Agency was submitted in California, it was met with as great opposition as had ever been seen in the State.  Local governments clearly and precisely gave the lie to every argument put forward in support of this outrageous “taking”.  They demonstrated that every claim made by the promoters of this monstrosity was either false, or had already been dealt with by local action.  There was absolutely no support from local residents who, along with local governments and volunteer organizations, gave substantive opposition.  The limited support all came from “conservation” groups, San Francisco interests, and the Governors of the two States.

AB 1362 received the requisite number of votes for passage, was matched in Nevada, signed by the two Governors, approved by Congress and became law with the blessing of the man sitting as President of the United States – and the citizens of Tahoe went under administrative rule.  As you will see, that “law” did not just impact Tahoe and the States directly involved.  It now rules the lives of all citizens of the United States, wherever they live with its boundaries.  (The following excerpts from the body of the CCIC 1963-65 Report demonstrate the long-term process of undermining the foundations of representative government, which led to acceptance of the TRAP):

CALIFORNIA COMMISSION ON INTERSTATE COOPERATION

Sacramento

I am pleased to transmit herewith a copy of the Report of the California Commission on Interstate Cooperation for the period from July 1, 1963 to June 30, 1965.

Cordially yours,

Glenn M. Anderson, Chairman

INTRODUCTION

ORGANIZATION OF THE COMMISSION

The California Commission on Interstate Cooperation was established in 1939 as a statutory agency of the State of California (Cal.Stats. 1939, Chap. 376).  As amended in 1947 and 1959, the act setting forth the membership and duties of the Commission is contained in Title 2.  Division 1, of the Government Code.

Under previous authorization, the commission is comprised of the seven members of the Assembly Committee on Interstate Cooperation including specifically the Speaker of the Assembly and the Chairman of the Rules Committee; the seven members of the Senate Committee on Interstate Cooperation; the five state officials appointed by the Governor to serve at his pleasure; and the Governor and one member of the California Commission on Uniform State Laws designated by the Governor as an ex officio, nonvoting member.

The commission is directed by statute to carry forward the participation of California as a member of the Council of State Governments both regionally and nationally, to confer with officers of other states and of the federal government, to formulate proposals for cooperation between California and the other states, and with the federal government, and to organize and maintain government machinery for such purposes.

RELATION WITH THE COUNCIL OF STATE GOVERNMENTS

The California Commission on Interstate Cooperation also acts in a liaison capacity.  With similar organization in other states, it promotes better understanding of federal-state problems.  The commission and facilities the interchange among California, the other states and their national associations, of experiences and studies pertaining to the common problems of the states.  Whenever findings or action on the federal, state or association level may have gainful application in California or an effect on its welfare, they are communicated to the responsible agencies of the state.

Much of the work of the California Commission on Interstate Cooperation is conducted through the Council of State Governments – an agency created, supported and managed by the states to facilitate the internal relations with each other and with other levels of government  As a joint agency of all the states, the council makes available to them research materials and information on developments, problems and procedures in state government; staff services for regional and national meetings of state officials; and liaison and technical assistance effecting cooperation among the states and with federal government for the solution of interstate and federal problems.

THE FIRST QUARTER CENTURY

As noted in the introduction, the commission was created in 1939.  Thus during the biennium covered by this report, the CCIC passed its silver anniversary.

During these years, the commission has participated in developing a broad variety of interstate joint programs and arrangements.  Among these are programs that relate to crime, juvenile delinquency, education, civil defense, vehicle taxation, driver licensing and traffic safety, fisheries, and many others.  Some are nationwide involving most or all of the states; some are compacts affecting only the western states, and a few are agreements between California and its immediate neighbors only.

(Note the wide range of activities in which these CICs were involved.  Was this done with the knowledge and consent of the people – or just their ‘representatives’?)

The California Commission, through these and similar programs and activities, endeavors to strengthen and improve state governments and through mutual agreements, to solve problems common to California and neighbor states.

(Under what authority are the CICs permitted to “solve the problems common to the states”?)

The commission, under current authorization, is somewhat different from its initial makeup.  Then, it provided for the commission to be composed of five members from each house, plus five to be appointed by the Governor from the administrative branch.  The National Conference on Uniform State Laws has existed, in one form or another since the last decade of the 19^th century.

(Note the admission of when this process actual began – in the 1890s!  Did you know that?)

Though California had been informally participating in the national conference, it was not until 1927 that the Legislature authorized California membership.

(For “informal participation”, read “without legislative approval” – unlawfully.)

The Council of State Governments had been organized in 1913 and had been growing steadily in state affiliations, and had demonstrated that interstate co-operation through voluntary agreements among the states glowed with promise.  However, by the time California became an affiliate, a dark shadow – international relations – the threat of war – tended to diminish the glowing promise; problems to be solved through mutual agreements among the states were abundant, but the threat of war became the overriding problem.

(The history of the “social science” movement, of which TRAP is an operational segment, suggests that WW 2 was critical to activation of the Plan for a New World Order.)

(California’s CIC was dissolved around 1969, yet every year for many years, this no-longer-existing Commission received a regular contribution of taxpayers’ money, funding this link to regional HQs for some obscure reason.  In 1981, the sum of $76,000 passed through this shadow body to the Council of State Governments.)

The “New” American Revolution

“Would you believe me if I were to tell you that I live under a government that has taxing, police and legislative powers, but I do not elect the governing board?”

“Nor do I have recall rights against my governors, nor initiative nor referendum rights against the laws they ‘pass’.  Yes, I do have that distinction, and I do live in the United States – at Lake Tahoe.”

Those are the words of William Van Dike Johnson, at the time a Supervisor from the 2^nd District in El Dorado County, in a speech he made many times around the State of California.  He first made those remarks to the Federal Advisory Commission on Intergovernmental Relations (ACIR), in opposition to their program for “substate redistricting”.

There was an audible gasp from the throng attending the ACIR Hearing in San Francisco.

There is no man in this country better qualified to speak to the ramifications of regionalism than Bill Johnson.  When (as a private citizen) he first began to recognize an intent for government to take over plans for private property, he accepted a position on the County Planning Commission, publically stating that he believed there should be a voice on such bodies which spoke for the people.

As a Planning Commissioner, Bill testified to the State Senate Local Government Committee that such bodies are too prone to become a solid front against the people’s interest and that his vote always took into consideration the rights of the owners of property, and their expressed desire to use their property in their own best interest.  He served with such distinction on the Commission that the people of his district wisely selected him to represent them on the Board of Supervisors, where he served three terms.

On that Board, he worked long and hard – not just to do the job for which he was elected, but also to alert other county officials and citizens in general to the source and the nature of the problems, which seemed to mount daily as a result of edicts handed down from other levels of government.

It was Bill Johnson who first called the attention of his Board – and the public – to what he described as one of the most infamous pieces of effrontery ever perpetuated by any ‘governing body’ in the United States – Ordinance #10 issued by the Tahoe Regional Agency.

It was Bill who led the El Dorado Board of Supervisors in unanimously denouncing Ordinance #10 in no uncertain terms, in a two-page “White Paper”, which began:

“At first glance, the document strikes the reader as an absurd, humorous ‘put-on’…  Nevertheless, we are forced to recognize that the proposal is being advanced in deadly earnest…”

“We are not dealing here with matters of pollution, erosion control, housing density, waste disposal, or the customary building or housing codes…”

“We are confronted with a Plan to deny citizens the right to develop their own design concept, choose their own materials, and believe it or not, the color scheme to be used…  Controls are spelled out in exquisite detail, ranging from the shape and style of the buildings to requiring approval of plant material used in landscaping the backyard…”

“…the crushing necessity for this outrage is attributed to the need to “effectuate the adopted regional Plan”.  There is even a finding that an emergency exists requiring immediate action.”

“Seldom has a more blatant sophistry been employed by any government – anywhere…”

At that time, there was nothing more the Board could do.  The Legislatures of California and Nevada, the Governors of both States, the Congress and the president of the United States had joined together in taking from them their Constitutional duty to represent the citizens who had elected them.

Alerted by the White Paper, though, the citizens stormed the next meeting of the Agency.  To still the protest, Ordinance #10 was not approved at that meeting, as intended.  Had the Board not sounded that alarm, those controls would have been placed over them unannounced.  Proof of that is the fact that, one by one, they have been quietly passed since then, and Tahoe went under that kind of control.

El Dorado had opposed the Agency from the beginning.  Twice it sought relief from the Courts.  For years, the County refused to tax its citizens who did not live in the Tahoe area to pay its expenses – required by the law that created the Agency.  The Board encouraged then-State Senator John Schmitz to prepare a bill to dissolve the Agency, and supported him in his effort to get it passed.  It was all to no avail.

Until the citizens of this nation come to realize what regional planning will mean to them, individually, and become aware that they are electing men and women who permit such things to go on, all the protests and the legal action are simply an exercise in futility.

Tahoe was a test case.  The Court said so.  The legal decisions made on Tahoe are precedents for all such agencies – in existence or to be created.

This is revolution – the “new” American Revolution – within the form of our lawful government, but without the consent of the people.

The Price of a Lake

How can the cost of the “common good” be assessed when individual rights are in the balance?

In which column are the shattered remnants of a thousand dreams to be placed?

How are the ‘rights’ of public access weighed against the rights vested in private property?

How is the value of a treasured heritage of representative government measured against a monstrous parody, which retains some of the familiar outlines, but from which the essential elements have been removed?

These are issues which should be at the forefront in campaign rhetoric of every candidate for office in the United States today – but are rarely mentioned – if ever.  If they were, would there be mad repudiation at the polls of those who would not discuss them?

What would happen to those in office if their opponents demanded an accounting for their cooperation in the massive regional attack on the historic, lawful American government?

These things would be discussed, if every American knew what the property owners at Tahoe learned firsthand.  The general public is simply not aware yet that powers that belong to them are being granted to regional bodies by the people they elect.

Worse than that, it is not generally understood that there are certain matters (which the Founders of this nation called “inalienable rights”), which even those elected are not free to dispense.

Even worse than that, it seems most people do not yet understand why that is important.

Ti is important because “all men are granted certain inalienable rights by their creator” – rights which they, themselves, cannot ‘alienate’ (or give away).  If the possessors of those rights cannot give them to anyone else, how is it possible that their agents are doing it?

This vital question is ignored in all political discussions.  Ignored, too, is the effect – not just on the body politic, but on the lives of the citizens who have been disenfranchised – by the autocratic decisions which are made, using those usurped powers.

It would take a book to tell the myriad stories of distress caused by the ‘autocratic’ decisions made by the Agency at Tahoe, but for a case in point, consider the plight of one woman there, who owned a piece of paper deeding her five acres of prime land.  When she and her husband acquired that piece of paper, they thought they had bought those acres for their own use.  The paper said that 40 residential units could be built on each acre.  The area was booming, and it looked like a good investment for their future.

The land increased in value, and the first to recognize that was the county assessor.  Soon they were paying taxes on a valuation of two hundred thousand dollars, and their dream had new luster.

Then tragedy struck, and, as usually happens, not singly.  Her husband died, and the regional authority was created – and began to impost “its” plans on the citizens.

Down zoning was imposed on the property to “limit population growth“, supposedly to “protect the Lake”.  The widow learned that now only 15 units per acre could be built – no matter what her paper said.  The Agency did not propose refunds for all the taxes they had paid for the higher use.

Before she recovered from that blow, another mandate was issued, which made the deed to per property all but worthless.  The new edict prohibited construction of more than one unit per acre until all the buildable land in the area had been developed.  Under those circumstances, there was no hope at all that she could even sell the property for anywhere near what they had paid for it years before.  Building under the present ukase would be folly.  But the taxes go on, and the mortgage must be met.

What price should a widow have to pay to “preserve the beauty of a Lake“?

The basic facts of her plight could be multiplied thousands of times at Tahoe – and in other areas of the country where land-use-planning by government has stolen individual rights in property.  Land which brought fabulous prices before government usurped the decision-making process, becomes a drug on the market – just as it as intended, when the Agency was created for Tahoe.  Those who had bought before then were unable to use their property for any feasible purpose, and default was a dark threat.  More than that, if they try to sell it, the prospective buyer will find an army of bureaucrats standing between him and any plan he might have for it.  He would be a fool to pay what it is “worth”.  Or is it “worth” anything?

One resident at Tahoe who had a large herd of cattle had to liquidate his holdings.  Having paid over a half a million dollars in taxes in the ten years before the ‘compact’ – he could not afford to keep them anymore.  Many smaller ranchers were in the same boat.

What price, the beauty of a Lake?  All of the costs of the Tahoe Agency are not recognized – not even by the public.  One of those costs is the imposition of taxation without representation.  Who remembers that this was the smoldering fire that sparked the tinder to cause the America Revolution?

Under the legislation that created the Agency, some of its funding comes from State taxes – all of California citizens are hostage for that.  The Agency decides how much it will need each year, counts up how much will be received under the provisions of the legislation, and then, under the compact, demands the remainder from the counties out of which the regional body was carved – from citizens outside its jurisdiction.

Like an ominous harmonic, the inequities of the costs and controls of the Agency are underscored by the constant refrain that the need for it for any of the stated purposes was never proven:

–        The Lake is not – nor ever was – “stagnant“.

–        Waste Control was already well underway by local governments.

–        Runoff waters were already being diverted.

–        Rodent control was a continuing effort.

–        Planning and zoning were a fact.

Nor is there any substantive reason to believe that the Agency can guarantee “preservation of the Lake” – short of removing the entire population and closing the access roads.

What value, then, the beauty of a Lake?

The People vs. the County of El Dorado

The appeal by El Dorado County for a legal decision on the “taxation without representation” issue was held in limbo, until the State Attorney General brought a mandamus proceeding to “compel the County to pay its fair share” of the costs of the Tahoe Regional Agency.  At that point, the Court granted the writ, and took the whole matter of the County’s complaints as well as those of the State, under advisement.

The case should have been called “The People vs. The People“, since that was the essence of the proceedings.  It might as well have been The People of the United States vs. The People of the United States, for the Court began its “opinion” by stating that the issues presented were of great concern to the entire country.

And so they were.  And are.

The decisions regarding the Tahoe Agency are precedents for all succeeding actions against regional bodies, everywhere in this country.

Since El Dorado County made its appeal on behalf of all its citizens, and not just those who were under the regional compact, the decisions of this court also have meaning for all Americans.

The decisions on the matters involving Tahoe also bring new significance to the pressures to make all State Constitutions uniform.  Without such uniformity, there will be labored twistings to apply the California decisions in States which do not succumb to the new revisionism, but the nature of these decisions gives assurance that even in citizens in those States which retain their ‘outmoded Constitutions” will face a troubled future.

Up front, the Court had to stretch the meaning of “mandamus” to make it cover this case, since there was “an absence of adequate remedy in the ordinary course of law“, and a pressing necessity to end the El Dorado resistance to the Agency.

Having granted the writ, the Court then found that the two counties involved in the Compact had to pay the Agency demand, since (the Court pontificated), “…limitations of the California Constitution do not prevent the Legislature from authorizing a district to impose taxes for a State purpose“.  Conveniently, the legislature had recorded in the bill that created the Agency that the preservation of the Lake was a State interest, and the reason for the Agency.

The Court also found that taxing citizens not under the Agency’s umbrella was legal, even though there was no direct relevance.  (Taxation without representation!)  The court said it was legal because the monies were not for county or local needs, but for regional purposes.

In these two decisions are the basis for trouble whenever regional bodies are created.  Because, you see, the “unauthorization” was, in fact, a mandate by the Legislature, included in the bill as passed, just as was the funding for the Agency, which imposed a tax on the whole of California.  Designating the purpose of the Agency as “regional” by passes any Constitutional constraints on spending.

But then, you see, the Court applied the same logic to the powers given to the Agency, and put them out of the reach of any State or Constitutional restrictions aimed at limiting regional powers.

The Court also found that the citizens under the Tahoe umbrella “are not entitled to the right of initiative, recall or referendum“, or to “the operation of the one-man-one-vote principal, in view of the interstate nature of the Agency, and of the interest of non-residents in the preservation of the Lake Tahoe Basin“.

And so, the court said, the Compact “properly provided for the appointment, as distinguished from the election of its governing board.”  And so, this Court gave a double whammy to representation, and that is an issue that should be given the closest scrutiny.

There was one item in this holding that is easily passed over, with such huge wounds inflicted on our lawful government, but it should be noted, for it is an ominous portent for a larger concern.

That is the recognition by the Court of “the interest of non-residents” in the affairs of Tahoe.  It is not unthinkable that this interpretation could at some point in time zoom out to impact our national government with “the interest of non-residents“.  Think about that.

Perhaps though, the most significant ruling by the California Court was this:

“The concept of equal protection of the law means simply that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.”

Are you listening, Florida:  New Jersey?  Washington State?  Texas?  You other States where regionalism is being promoted.  Do you hear the chains rattling for you?

“A district” said the Court, “is excluded from the initiative, referendum, and recall, if it has been formed under a law that does not provide for elections… if members of an official body are elected, the one-man one-vote principle applies, and if they are appointed, it does not apply.”

It is as simple – and as horrendous – as that.  “…whether the activities to be performed are legislative or administrative in nature is immaterial.”  Thus spake the Court.

Since it was “not only the Legislatures of California and Nevada, but also Congress” which conspired to create this monstrosity, the Court found that the broad delegation of powers were not unlawful.  It assumed Constitutionality, because of the source.

Lawsuits involving hundreds of millions of dollars in damage to individuals in the Basin brought up some very interesting points of law, but there is little hope for people whose lives and hopes, yes, and fortunes, hang on the decisions of Courts, which can make such decisions.  It is a clear and present warning to all citizens everywhere.  The best way to escape such a perversion of the precious heritage of representative government is to prevent regional bodies being superimposed on it.

These decisions on Tahoe make it obvious that there is no remedy in sight after the fact, except to figure out some way to remove the cancerous growth – a much harder way to go.

From the 1963-5 minutes CCIC’

“Mr. Matthews expressed surprise at being called upon because he thought he had just come for an airplane ride”

(Isn’t that what has happened to all of us?)

The illustration on the front cover of this Report, the map on page 5, and the inserts identified as “minutes” are from the official documents for the Plan for Lake Tahoe.

The statement in script on the cover gives a message from the Planners, The major error in this message lies in ignoring the fact that Plans like this are designated to deny Man the right to use that ability they define.

There is an identifiable Master Plan (of which this is a part):

“to commence the remodeling of the lives of American freemen… to mix the lives and hopes and dreams of human beings with physical resources, and attempt to measure and modify and restrict men and their intangibles…” 1

The Plan for Lake Tahoe was a pilot program for that Plan.

John L. Rankin “If this program, proposed by our so-called National Resources Planning Board, were put into effect, it would wreck this Republic, wipe out the Constitution, destroy our form of government, set up a totalitarian regime, and pile on our backs a burden of expenditures that no nation on earth could bear…”

Clare Hoffman:  “That horde of bureaucrats which promulgates the multiplicity of orders, rules, regulations and directives… have presumed to take solely unto themselves the prerogative of interpreting the intentions of Congress – reading into its enactments meanings never even thought of…”

Noah H. Mason “…It is a scheme to give the federal government control of every activity in this nation, with the States pushed back into a position of impotence, if not entirely obliterated…  A State that does not cooperate… is to be policed from Washington…”

And Congress repudiated the Plan, and eliminated the Planners – or so they thought…  What do you think now?

A Social Contract

Gary Hunt
Outpost of Freedom
May 18, 1994

The Founding Fathers relied upon, and developed much of the concept of the Constitution (a social contract) from the works of authors, thinkers and philosophers of the time. One of those was Rousseau, who wrote “The Social Contract”, who recognized the true relationship between government and people when the presumption was made that all just power derives from the people. Rousseau wrote:

“The moment the people is lawfully assembled as a sovereign body, all jurisdiction of the ‑government ceases the executive power is suspended, and the person of the hum blest citizen is as sacred and inviolable as that of the highest magistrate, because there can be no representatives in the presence of those they represent. . . The consuls were then only the people’s chairmen, the tribunes were only speakers, and the Senate was nothing at all.

“The government always dreads these intervals of suspension, when it recognizes, or should recognize, a present superior and such assemblies of the people, which am the shield of the body politic and the brake on the government, have always been the terror of the magistrates, who therefore spare no pains in raising objections, making difficulties, and giving promises to discourage the citizens from assembling. When the citizens am avaricious, lethargic, cowardly, or fonder of tranquility than of freedom, they do not hold out long against the redoubled a its of the government. It is thus that, as the opposing force constantly  increases, the sovereign authority finally  vanishes and most republics fail and perish before their time.

So, what stands between the sovereign authority (the people) and arbitrary government (that which Rousseau identifies as the “opposing force”)? The social contract which, in our case, is the supreme law of the land, the Constitution for the United States of America. It is easy to conclude the purpose for the Constitution, yet is it so easy to understand the peril that threatens it today?

We are told, from early school education through college, on television, radio, newspapers and nearly every from of social communication, that the changes in technology warrant a greater necessity for “law enforcement” and regulation. We are told that the reason for the second amendment was the need to hunt meat or to defend against outlaws and Indians. We are told that the need no longer exists, and that the passage of laws restricting firearms ownership are because of the rampant crime existent in America today. Do they tell us that the crime that we see today is not crime as envisioned by our forefathers? These “crime control acts” that they are constantly passing, if you think about it just a moment, are really “crime creation acts”, for they create crimes as a result of rule violations rather than damage or injury to victims. These “manifestations” of crime then lead to real crime as a result of putting people into a circumstance of being on the other side of the “law.” Then comes the “outrage” expressed by the politicians which results in reactive passage of even more restrictive laws, which results in further increase in “crime”, which results in passage of more laws ‑‑ And we see the results of Rousseau’s theory come to fruition.

Is there, however, and alternative to this slow but sure demise of our Constitutional Republic? Perhaps the Founding Fathers gave us a means to achieve these goals. In most republics of past history, and there were many, the cycle of their histories lasted about two hundred years. The Founding Fathers, understanding this reality, provided us a document written in simple terms so as to not be to difficult to be understood, yet provided us, also, with many supportive documents whereby we could learn of their inspiration and, perhaps, resurrect the Great Experiment. The tools were given us by the AntiFederalists when they insisted on the Bill of Rights. This “heart of the Constitution” assures us both the intent and the means of the salvation of this great nation. It is not an easy task, nor is it to be accomplished without effort by those who understand and desire to achieve this goal. More significantly it must be recognized that now is just short of to late to begin this process.

Habeas Corpus
A New Understanding

Gary Hunt
Outpost of Freedom
June 19, 2012

 

The Constitution provided for a separation of powers both within the federal government, and, between the federal government and the state governments (Republican Form, Art I, Sec IV, clause 4, Const.). There were limitations of, and grants of, authority given to the federal government. And, by the Tenth Amendment, those powers not granted were retained by the states or the people.

There is also a rather obscure provision that provided the means to protect the states and the people from encroachment by federal authority. When I say “obscure”, I do so because I am at a loss for the proper word. After all, nearly everybody in the country knows that “The Privilege of the Writ Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it” (Art. I, Sec. 9. Clause 2, Const.). Most people also understand that Habeas Corpus is also known as the “Sacred Writ”, however, I would suggest that only a small handful really understand exactly what Habeas Corpus ad subjiciendum, really is. After all, the last time the United States Supreme Court heard a case on Habeas Corpus ad subjiciendum was in 1876 (EX PARTE PARKS, 93 U.S. 18), yes, 136 years ago — long before any practicing attorney or judge ventured into law school to learn the “law of the land”. Given the number of generations between that last occurrence, is it any wonder that the concept, and the understanding of the significance, of Habeas Corpus has been lost?

Just a few historical quotations regarding the Sacred Writ:

“The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution.”. [Abelman v. Booth, 62 U.S. 506 (1858), at 519]

“This judicial power was justly regarded as indispensable, not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government.  And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void.  The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws; but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress” [Abelman v. Booth, 62 U.S. 506 (1858), at 520,521]

“Rights and immunities created by or dependant upon the Constitution of the United States can be protected by Congress.  The form and the manner of the protection may be such as Congress, in the legitimate exercise of its legislative discretion, shall provide.  These may be varied to meet the necessities of the particular right to be protected”. [U S v. REESE, 92 U.S. 214 (1875), at 215, 216]

“A remedy the more necessary, because the oppression does not always arise from the ill-nature, but sometimes from the mere inattention of government“. [William Blackstone, Commentaries (1768)]

“Reasons will be given hereafter for considering many of the restrictions, contained in the amendments to the Constitution, as extending to the states as well as to the United States, but the nature of the writ of habeas corpus seems peculiarly to call for this construction. It is the great remedy of the citizen or subject against arbitrary or illegal imprisonment; it is the mode by which the judicial power speedily and effectually protects the personal liberty of every individual, and repels the injustice of unconstitutional laws or despotic governors“.  [“A View of the Constitution of the United States”, William Rawles (1829)]

“The national code in which the writ of habeas corpus was originally found, is not expressly or directly incorporated into the Constitution.

If this provision had been omitted, the existing powers under the state governments, none of whom are without it, might be questioned, and a person imprisoned on a mandate of the president or other officer, under colour of lawful authority derived from the United States, might be denied relief. But the judicial authority, whether vested in a state judge, or a judge of the United States, is an integral and identified capacity; and if congress never made any provision for issuing writs of habeas corpus, either the state judges must issue them, or the individual be without redress.” [“A View of the Constitution of the United States”, William Rawles (1829)]

“It is at any rate certain, that congress, which has authorized the courts and judges of the United States to issue writs of habeas corpus in cases within their jurisdiction, can alone suspend their power, and that no state can prevent those courts and judges from exercising their regular functions, which are, however, confined to cases of imprisonment professed to be under the authority of the United States. But the state courts and judges possess the right of determining on the legality of imprisonment under either authority. [“A View of the Constitution of the United States”, William Rawles (1829)]

“§ 1333. In order to understand the meaning of the terms here used, it will be necessary to have recourse to the common law; for in no other way can we arrive at the true definition of the writ of habeas corpus. At the common law there are various writs, called writs of habeas corpus. But the particular one here spoken of is that great and celebrated writ, used in all cases of illegal confinement, known by the name of the writ of habeas corpus ad subjiciendum,” [“Commentaries on the Constitution”, Joseph Story (1833)]

Though we have seen that the state legislatures have failed at nullification of unlawful enactments of Congress, perhaps, however,  we can see that there is a remedy within the Constitution that, if properly applied, will achieve such end. Unless, of course, the “Sacred Writ has been suspended — without the requisite act of Congress and the Constitutional conditions met.

To understand more about Habeas Corpus, and, the apparent suspension (not enacted suspension, as required), go to Habeas Corpus 2012

Also:

Habeas Corpus 2012

Has Habeas Corpus Been Eliminated

For the current status of the Habeas Corpus before the Supreme Court, see Habeas Corpus Suspended