Re: Lincoln Mortally Wounded the Constitution

Jefferson vs. Lincoln on the Source of Government's 'Just Powers'
Posted by Thomas DiLorenzo on March 26, 2012 06:37 PM

Consider the Southern, Jeffersonian, "Neo-Confederate," States' Rights view as expressed by Thomas Jefferson in the Declaration of Independence:

"Governments are instituted among Men, deriving their just powers from the consent of the governed."

From this perspective Jefferson defended the right of secession in his first inaugural address; authored the Kentucky Resolutions of 1798 which enunciated the principle of nullification (by the people of the states of unconstitutional federal legislation);  championed the Tenth Amendment as the cornerstone of the Constitution;  and was an ardent secessionist until his dying day. "We would wish them all well" is what he said of any state or states that seceded to form their own regional American union.

Then compare that to the radical, Jacobin, Lincolnian view of the powers of government as expressed by Woodrow Wilson in his book, Constitutional Government in the United States (p. 178):

"The War between the States established . . . this principle, that the federal government is, through its courts, the final judge of its own powers."

When the federal government became "the final judge of its own powers" in 1865 that was the end of government by consent in America. Americans then became the servants, rather than the masters, of their own government once the rights of nullification and secession were destroyed at gunpoint.

These quotes highlight the total absurdity of those, such as the Straussian neocons at the Claremont Institute, Hillsdale College, and elsewhere, who outrageously claim that Lincoln was a Jeffersonian!

Original Understanding of the Commerce Clause

Original Understanding of the Commerce Clause
by Jon Roland

Most federal criminal legislation is based on either the tax or commerce clauses, but competent historians of the Founding Era will find that these clauses do not authorize criminal legislation.

For the term "commerce" we can disaggregate the bundle of elements it might include and examine usage to determine which of the elements were included in original understanding:

1. Tangible articles.

2. Transfer of ownership.

3. Transfer of location.

4. Transfer of possession.

5. Direct services, securities, money, publications, power, etc.

6. Exchange for a valuable consideration.

7. Primary production (farming, fishing, hunting, mining, etc.)

8. Manufacturing.

9. Transport services.

10. Sale.

11. Possession.

12. Use.

13. Disposal.

14. Those engaged in the process.

15. The practices of those engaged in the process.

16. The impacts of the practices of those engaged in the process, such as "interference" in the practices conducted by others, or intermingling of the process with other kinds of process.

17. A "stream" of such processes which might include non-qualifying objects.

My research of instances of use in what became the United States finds only that "commerce among the states" meant "transfer for a valuable consideration of ownership and possession of a tangible commodity from a vendor in one state to a customer in another."

The word "commerce" was almost never used in common parlance in the colonies or newly independent states. A search of newspapers, speeches, and letters of that time and place finds few instances of it. The word is originally French, and we have this from Emmerich de Vattel, in his Law of Nations (1758), Book I § 92:

... commerce consists in mutually buying and selling all sorts of commodities.

Vattel was well-known and often cited by the Founders.

In other words, interstate commerce would not, for example, include a sale from someone in Lower Michigan to someone in Upper Michigan that happened to be delivered via Illinois. I have also found as objects of such regulation, aggregation only up to the level of single shipments of multiple units, not some "stream" that might include non-qualifying objects.

As originally understood, interstate "commerce" did not include primary production, such as farming, hunting, fishing, or mining. It did not include services, securities, or communication. Nor did it include manufacturing, transport, retail sales, possession, use, or disposal of anything. It did not include anything that might have a "substantial effect" on commerce, or the operations of parties not directly related to the actual transfers of ownership and possession.

It also did not include all "traffic". There is an implied power to regulate traffic to the extent necessary to separate commercial traffic from noncommercial, such as to require that traffic move through ports of entry and be subject to inspection, but once noncommercial traffic is identified as such it is no longer constitutionally subject to regulation. However, carrying human passengers would not qualify as commercial traffic, even through it might be done for hire, because humans are not tangible commodities being traded ­ with the temporizing exception of slaves until the logical imcompatibility of slavery with the language of the Constitution could be resolved.

The decision in Gibbons was correct, but the justification in the opinion was not. The authority for regulating coastal traffic rests on the Defense Clause, which implies the power to control entry onto the territory of the nation and the approaches to it. See my commentary at http://www.constitution.org/ussc/022-001jr.htm.

Further, as originally understood, the power to "regulate" was not the power to prohibit, nor did it imply the power to impose criminal penalties for violations. While a "regulation" might be considered as the prohibition of some modalities of something, like packaging, labeling, handling, routing, or scheduling, it could not be prohibition of all modalities. There must always be some modalities that are permitted. The restriction must be reasonable, and must serve a public purpose, and not favor one segment of the market over another.

Further, I find no instances where "necessary and proper for carrying into Execution the foregoing Powers" meant "convenient for achieving any purpose for which the powers might be exercised". It was recognized that many delegations of powers would not be sufficient for many purposes for which they might be exercised, but the delegation was only to exercise the power within its bounds, not to do whatever it might take to accomplish a goal.

Similarly, as originally understood, the power to tax did not imply the power to impose criminal penalties for violations, only civil penalties, such as fines, or forfeitures of the actual property on which taxes had not been paid.

Today, judicial proceedings in which the petitioner seeks punitive deprivations of property, such as fines, is treated in criminal court rather than civil, even though, inconsistently, courts will treat punitive damages, in rem forfeitures, or deprivations of privileges, as "civil". But in the Founding Era, "crimes" were acts punishable by deprivations of life, limb, or liberty. "Limb" was a term of art that meant corporal punishment.

The original Constitution delegated authority to the national government to punish as crimes, committed on state territory, only a limited number of subjects: (1) treason (Art. III Sec. 3 Cl. 2); (1) counterfeiting (Art. I Sec. 8 Cl. 6); (3) piracy or felonies on the high seas; (4) offenses against the "laws of nations" (Art. I Sec. 8 Cl. 10); or (5) violations of discipline by military or militia personnel (Art. I Sec. 8 Cl. 14). This was emphasized in constitutional ratifying conventions, and again in the Kentucky Resolutions of 1798, authored by Thomas Jefferson, although he omitted the last one. See http://www.constitution.org/rf/kr_1798.htm .

As originally understood, the "Necessary and Proper" clause (Art. I Sec. 8 Cl. 18), only implied powers to administer delegated powers, not all powers that might be useful or convenient to achieve a purpose for which the delegated powers might be exercised. It may be necessary and proper to hire workers, build buildings and equipment, and issue paperwork, but not to pressure or penalize someone for not doing something the government does not have the power to do directly.

In general, the powers to "tax", "borrow", "regulate", "establish", "promote", "secure", "constitute", "declare", "grant", "provide", "make rules", "prohibit", and "punish", were all distinct, none implied by another. Thus, it is not correct to imply a power to punish (disable a right of life, limb or liberty) from a power to tax or regulate.
The only delegation of what are called "police powers" was confined to parcels of territory ceded to the exclusive legislative jurisdiction of Congress under Art. I Sec. 8 Cl. 17, such as the District of Columbia, and things like arsenals, dockyards, etc. Although many such "federal enclaves" have been created since the Constitution was adopted, they are limited in extent. See "Jurisdiction over Federal Areas within the States ­ Report of the Interdepartmental Committee for the Study of Jurisdiction over Federal Areas within the States" (1956), at http://www.constitution.org/juris/fjur/fed_jur.htm .

It has been held by some that Congress also has police powers on federal territory that has not been admitted as a state, under Art. IV Sec. 3 Cl. 2, but historical analysis indicates this clause only authorized Congress to organize such territories, and that any police powers had to arise from local governments that it might create, not from Congress directly. The model for this is the 1787 Northwest Ordinance, see http://www.constitution.org/cons/northwes.htm .

It is important to understand that as originally understood, such territorial jurisdiction was strictly limited. By the laws of nations doctrine, a criminal offense was "committed" under the exclusive jurisdiction of the sovereign of the territory where the offender was at the moment the irreversible act was united with criminal intent. See the treatise Conflict of Criminal Laws, Edward S. Stimson (1936) at http://www.constitution.org/cmt/stimson/con_crim.htm . In recent decades there has been a "jurisdiction creep" and assertions of "extraterritorial jurisdiction" over criminal offenses, but that is unconstitutional.

It is often argued that court precedents do not support the above interpretations, and that courts are bound by the doctrine of stare decisis to make their decisions primarily on the basis of the most recent precedents, rather than always returning to the black letter law, especially the Constitution, and to historical analysis of what the lawgivers meant by the words they chose. It is argued that "stability" of the law is more important than conformity to "original understanding". The problem with that doctrine is that it conflicts with the main reason why the Founders adopted a written constitution, rather than relying on the unwritten constitution that had been the tradition in Britain. Written constitutions were to get away from the drift into absurdity that often result when chains of precedent are allowed to drift away from some original, fixed, fundamental law. Stare decisis has a limited role in clarifying the fuzzy boundaries of the black letter law, but only after historical and textual analysis has been exhausted, and not to depart from the original meaning or to make "informal amendments" to the written law, especially to written constitutions.

At the moment, most federal criminal legislation is unconstitutional if applied to offenses committed on state territory, or on the territories of foreign nations. Some of it, which conflicts with the rights recognized in the Constitution, including the unenumerated rights of the Ninth Amendment, are unconstitutional everywhere, even in federal enclaves. This particularly applies to federal directives and regulations applied to persons not under contractual supervision of a federal official. It is a violation of Art. I Sec. 1 to delegate to administrative agencies the power to make rules for ordinary civilians that amount to statutes. Agencies may only exercise what is called the "ordinance power" over employees, some contractors, visitors to government proprietary facilities, or users of government assets, and except for military or militia personnel in actual service, the only penalties that may be imposed are termination of the contract and loss of the privileges enjoyed under that contract. The importance of this point can be seen in the fact that most of the penal and tax code consists of administrative regulations and not statutes.

Now, you may not find in the recorded ratification debates explicit analysis of the kind presented above, but, when combined with historical analysis of word usage and practice, one can certainly infer it, especially if one is not unduly influenced by an agenda that favors some government action. The job of historians includes the duty to ruthlessly examine one's own agendas and preferences and reject their influence on historical and legal judgment.

Any conscientious and competent historian approaching the current state of constitutional law confronts what can only be called tyranny, in the original sense of the exercise of unlawful power. Such powers might be popular with some constituent groups, but we must all realize that anyone who takes an oath to "preserve, protect, and defend" the Constitution is in immediate conflict with the established legal order, and that oath obliges the oathtaker to actively resist the usurpations, perhaps even with deadly force, the usurpations that so many have ignorantly come to accept.

---

For more on this topic see

"The Original Meaning of the Commerce Clause", Randy E. Barnett, 68 U. Chicago Law Review 101. http://www.bu.edu/rbarnett/Original.htm

"Locating the Boundaries: The Scope of Congress's Power to Regulate Commerce, Robert H. Bork and Daniel E. Troy. Paper delivered at symposium sponsored by U.S. Chamber of Commerce. http://www.constitution.org/lrev/bork-troy.htm

"How stare decisis Subverts the Law", Jon Roland, Jun. 10, 2000. http://www.constitution.org/col/0610staredrift.htm

http://www.constitution.org/col/02729_fed-usurp.htm

Lincoln Mortally Wounded the Constitution

Lincoln Mortally Wounded the Constitution
Posted by Michael S. Rozeff on March 27, 2012 07:38 AM

Wilson observed that the War Between the States established the federal government as the final judge of its powers. To be more accurate, let's say that the war openly brought out the big guns, used them, and raised to the surface the exercise of federal power that was already latent or had been going on for decades in a less conspicuous or thorough-going manner. Thank you for that blog, Tom.

The rule by guns, not the Constitution, means that the powers of the federal government are limited by nothing except the resistance of those under its rule and certain remaining forms and customs that are still observed under that Constitution. And both of these mean that as time passes and as the federal government extends its powers and subverts these forms and customs, it becomes more and more of a tyranny. And it means that the Constitution comes more and more to exist in form only while dying in substance.

Each of us is his own medical examiner and dates the death of the Constitution at different times. Jim Davies makes a good case for taking the date back to 1789 to 1803. Before Wilson, Lysander Spooner thought that the Constitution was a dead duck. Certainly Lincoln inflicted mortal wounds on the Constitution from which it could not recover, if it were not already dead.

We can now see, with the benefit of history, that the Constitution would, in time, lapse into mere form. Eventually, for even the most lenient medical examiner who thinks it still has a breath of life, it will expire altogether, and for many Americans and for most practical purposes, it already has expired, as both Bush 2 and Obama have made clear.

The War Between the States extended and heightened regressive, repressive, oppressive, and tyrannical political and social processes that had been instituted earlier. These are being realized and amplified as time passes. The federal government still rules by guns, fear, threats, and prisons. These cower the people. Progress in America is running backwards. This is the result of killing the Constitution and replacing it with a federal government that is the final judge of its own powers.

What Did the Supremacy Clause Mean?

March27th
What Did the Supremacy Clause Mean?
Tom Woods

That poor soul from the other day who insisted Lincoln never said that blacks shouldn't be voters or jurors, or intermarry with white people, or that he had no intention to interfere with slavery where it existed, still thinks the Constitution's Supremacy Clause makes state nullification unconstitutional.

The Supremacy Clause merely begs the question. It reads, "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 the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

"Grand Old Partisan" takes this to mean:

"This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws, whether or not in pursuance of the Constitution… shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding."

In other words, he accepts the interpretation current in American law schools. I do not intend this as a compliment.

Here's what the people were told it meant at the state ratifying conventions, which is what matters. (I'll be a sport and not even mention the proto-nullification arguments made at the Virginia Ratifying Convention, which settle the argument, though you can get the story in my Nullification or in Kevin Gutzman's James Madison and the Making of America.)

Alexander Hamilton, at New York's convention: "I maintain that the word supreme imports no more than this ­ that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding" (emphasis added).

In Federalist #33, Hamilton added: "It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution…."

Thomas McKean, at the Pennsylvania convention: "The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states" (emphasis added).

James Iredell, at the First North Carolina convention: "When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution."

For more on this, see Brion McClanahan's Founding Fathers Guide to the Constitution.

http://www.tomwoods.com/blog/what-did-the-supremacy-clause-mean/

Re: The Smear Campaign Against Trayvon Martin

helping to create racial unrest, and in general, hurting our Nation.
This
is their goal.
---
Talk about gays and gayness as loudly and as often as possible...
Portray gays as victims, not as aggressive challengers... Give
homosexual protectors a just cause... Make gays look good... Make the
victimizers look bad... Get funds from corporate America

On Mar 27, 10:49 am, Keith In Tampa <keithinta...@gmail.com> wrote:
> We've got another "Tawana Brawley" matter here, and something for the foot
> soldiers of Saul Alinsky,  Hunter Madsen and Marshall Kirk to rally
> around.   In these foot soldiers' minds, they are doing a good thing,
> helping to create racial unrest, and in general, hurting our Nation.  This
> is their goal.  *See* LilMarxistMoonbatTommyTomTomForNews.
>
> On Tue, Mar 27, 2012 at 11:32 AM, THE ANNOINTED ONE <markmka...@gmail.com>wrote:
>
>
>
>
>
>
>
>
>
> > On Mar 27, 8:57 am, Tommy News <tommysn...@gmail.com> wrote:
> > > What Everyone Needs To Know About The Smear Campaign Against Trayvon
> > > Martin (1995-2012)
> > > By Judd Legum posted from ThinkProgress Justice on Mar 26, 2012 at 6:59
> > pm
>
> > > Trayvon Martin, as he appeared on his actual Facebook page
>
> > > Over the last 48 hours, there has been a sustained effort to smear
> > > Trayvon Martin, the 17-year old African-American who was shot dead by
> > > George Zimmerman a month ago. Martin's mother, Sybrina Fulton, said,
> > > "They killed my son, now they're trying to kill his reputation."
>
> > FACT>>>>>>She was so very concerned for her son that she had no idea
> > he was missing until he was on a slab for three days...(same for the
> > Father)
>
> > > Thus far these attacks have fallen into two categories: false and
> > > irrelevant. Much of this leaked information seems intended to play
> > > into stereotypes about young African-American males. Here's what
> > > everyone should know:
>
> > Stereotypes of African American males... 60% of all crime is committed
> > by them... NOT A STEREOTYPE!!!
>
> > > 1. Prominent conservative websites published fake photos of Martin.
> > > Twitchy, a new website run by prominent conservative blogger Michelle
> > > Malkin, promoted a photo — purportedly from Martin's Facebook page —
> > > that shows Martin in saggy pants and flipping the bird. The photo,
> > > which spread quickly on conservative websites and Twitter, is intended
> > > to paint Martin as a thug. As Twitchy later acknowledged, it is not a
> > > photo of Trayvon Martin. [Examiner]
>
> > No, but the shoe does fit.
>
> > > 2. The Sanford Police selectively leaked irrelevant, negative
> > > information about Martin. The authorities told the Orlando Sentinel
> > > this morning that Trayvon was suspended from school for ten days
> > > "after being found with an empty marijuana baggie." There is no
> > > evidence that Martin was under the influence of drugs at the time of
> > > his death, nor would prior possession of marijuana be a reason for
> > > killing him. It's unclear what the relevance of the leak was, other
> > > than to smear Martin. [Orlando Sentinel]
>
> > His ability to fit into acceptable society is indeed pertinent.. his
> > possession of Marijuana at school says a lot about his character and
> > his attitude in public.
>
> > It is also the reason he was in that gated and closed neighborhood...
> > had he not been a druggie he would not have been suspended from school
> > and would not have been sent to "stay with Daddy". It is indeed
> > relevant.
>
> > > 3. On Fox News, Geraldo said that Martin was dressed "like a wannabe
> > > gangster." Bill O'Reilly agreed with him. The sole evidence is that
> > > Martin was wearing a hoodie. Geraldo added that "everyone that ever
> > > stuck up a convenience store" was wearing a hoodie. [ThinkProgress;
> > > The Blaze]
>
> > It's a simple fact put forth by another minority member.
>
> > > 4. Without any evidence, prominent right-wing bloggers suggested that
> > > Martin was a drug dealer. Right-wing blogger Dan Riehl advances the
> > > theory, also advanced in a widely linked peice on a site called
> > > Wagist. There does not appear to be any evidence to support this claim
> > > whatsoever. [Riehl World View]
>
> > It is a very plausible theory given the EMPTY baggie.
>
> > > 5. Without any evidence, a right-wing columnist alleged that Martin
> > > assaulted a bus driver. Unlike Zimmerman, Trayvon has no documented
> > > history of violence. This allegation continues to be advanced by a
> > > blogger on the Examiner even after the real reason was leaked to the
> > > police and confirmed by the family. [Miami Herald; Examiner]
>
> > I have no documented history of violence either... yet I have indeed
> > engaged in it.
>
> > > 6. Zimmerman's friend says Martin was to blame because he was
> > > disrespectful to Zimmerman. Zimmerman's friend Joe Oliver said that
> > > Martin would not have been shot to death if Trayvon had just said "I'm
> > > staying with my parents." Of course, Zimmerman was not a police
> > > officer, and Trayvon had no duty to tell him who he was or where he
> > > was going. [NBC News]
>
> > Duty, no... Common sense in a gated community, absolutely... why do
> > you or this punk think the gates and walls are for??
>
> > > The final part of the effort to smear Trayvon Martin is to link him
> > > and his supporters to irresponsible fringe groups like the New Black
> > > Panthers and marginal provocateurs like Louis Farrakhan. Threats by
> > > these groups are serious and should be investigated, but they have
> > > nothing to do with Martin or his supporters. The leader of the effort
> > > to associate Martin with these groups is Matt Drudge. You can see how
> > > he is framing the story today here.
>
> > > Ultimately, whether Martin was a perfect person is irrelevant to
> > > whether Zimmerman's conduct that night was justified. Clearly, there
> > > are two different versions of the events that transpired on February
> > > 26, the night Trayvon was killed. There are conflicting statements by
> > > witnesses and conflicting evidence as to who was the aggressor.
> > > Zimmerman has the right to tell his side of the story. But his
> > > opportunity to do this will come in a court of law after he is charged
> > > and arrested. In the meantime, Zimmerman's supporters should stop
> > > trying to smear the reputation of a dead, 17-year-old boy.
>
> > Punch me in the face and then bang my head on the pavement for simply
> > asking who you are and why you are in my gated neighborhood and I'll
> > shoot you too!!!
>
> > > __._,_.___
>
> > > --
> > > Together, we can change the world, one mind at a time.
> > > Have a great day,
> > > Tommy
>
> > > --
> > > Together, we can change the world, one mind at a time.
> > > Have a great day,
> > > Tommy
>
> > --
> > Thanks for being part of "PoliticalForum" at Google Groups.
> > For options & help seehttp://groups.google.com/group/PoliticalForum
>
> > * Visit our other community athttp://www.PoliticalForum.com/
> > * It's active and moderated. Register and vote in our polls.
> > * Read the latest breaking news, and more.

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