We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.
PREAMBLE: UNITED STATES CONSTITUTION *
Article 1, Section 8 is the most important part of the Constitution. It is the portion of the Constitution from which the Congress derives its power, both to tax and to spend money for the "general welfare." For this reason it is the heart of the Constitution. Here, we explore the issue of whether the Congress is a general sovereign body, having the power to enact any law which it determines will "provide for the common defense and general welfare," subject only to specific constitutional prohibitions; or are the powers of Congress restricted by a tighter meaning given to this Section by the Framers? The Constitution is a well constructed machine with a handcrafted engine, based on a set of principles that were well thought out and learned from experience. But how was it crafted? And just how big is the engine in this machine?
Article 1, Section 8
Powers Granted to the Congress+
1. The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
2. To borrow money on the credit of the United States;
3. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;
4. To establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;
5. To coin money, regulate the value thereof, and of foreign coin, and fix the Standard of weights and measures;
6. To provide for the punishment of counterfeiting the securities and current coin of the United States;
7. To establish post offices and post roads;
8. To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;
9. To constitute tribunals inferior to the Supreme Court;
10. To define and punish piracies and felonies committed on the high seas, and offences against the laws of nations;
11. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;
12. To raise and support armies, but no appropriation of money to that use shall be be for a longer term than two years;
13. To provide and maintain a navy;
14. To make rules for the government and regulation of the land and naval Forces;
15. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;
16. To provide for organizing, arming, and disciplining, the militia, and for governing
such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the Officers, and the authority of training the militia according to the discipline prescribed by Congress;
17. 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; - And
18. To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.
"Non in legendo sed in intelligendo leges consistunt." The laws consist, not in being read, but in being understood. ** This section, containing but one long sentence (the only period contained in the section is at the end), is the most significant part of the Constitution. It took nearly the full length of the Constitutional Convention to write it. Discussion on its design and meaning began only a few days after the beginning of the Convention in May, and was not completed until a few days before the end of the Convention in the middle of September of 1787. It is practically the whole reason for the existence of the Constitution. This is the power unit of the government; it grants the power to Congress to tax and spend; all else merely determines the form of the government. Without it there would be no reason, no purpose, like an automobile without an engine, for the rest of the Constitution. In terms of relative importance, the rest of the Constitution is mere embellishment that is fit around it, like the body and drive train of a car around the engine. A mechanic who understands everything about cars but their engines does not understand cars. Ferdinand Lundberg described the limitations on government in the Constitution as only, "amounting to a determination of the internal etiquette of the government." Yet Article 1, Section 8 is the connection between Congress and the rest of the world. If there are any real general limitations on the Federal government they must be found here or they do not exist. Article III provides for a judiciary with judgment to interpret the laws of Congress and act as a brake in terms of the Constitution. If Congress attempts to exert a power not granted by the Constitution it is the duty of the judiciary to nullify it, but only if the issue comes before it.++ The Executive branch of Article II, like a transmission, carries out and applies the power created by the will of Congress. Yet it is within the authority of the President to thwart Congress when it attempts to act beyond its granted powers. Classic examples of Presidential statements of this authority to throw the transmission into neutral will be shown in following chapters. This book is a study of the meaning of this section of the Constitution which gives Congress its power. The Founding Fathers did not kick the absolutism of the King out of the colonies only to replace it with the absolutism of Congress. It was intended by the Framers from the beginning that the ultimate power resides in the people and that Congress should only have power that the Framers considered necessary and could safely be given to it for the good of the nation. "Potentia non est nisi ad bonum." Power is not conferred but for the public good. This is only right, since all government power exists at the expense of the people.
While the world is laced with phoney "peoples republics," the United States has an authentic "peoples" government. We The People established the Constitution and Congress is a creature of the Constitution. Congress derives its authority from Article 1 of the Constitution. "All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Article 1, Section 1). The California State Assembly publishes a document 1 for distribution containing the Constitution of the United States. It lists two sets of limitations on the powers granted in Article 1, Section 8; that is Article 1, Section 9 (The document titles Article 1, section 9: "Limitations on powers granted to the United States" + ; it is notable that it does not say "Limitations on the powers of the United States."), and it says, "for other limitations see Amendments I-X." Which means that whatever granted legislative powers the Congress may have been granted, they cannot legislate a violation of an individual's rights2 in order to implement those powers. Yet, we contend that our form of government was not designed to merely forbid the Federal government to do certain things. It was designed to allow the Federal government to do only certain things; and, even then, written restrictions were placed on the means by which the ends could be accomplished. If this contention is to be demonstrated, the question here before us comes from another direction. Is there an intended leak in Article 1, Section 8 which gives Congress the power to determine what the general welfare is? Lundberg, referring to the powers granted in Article 1, Section 8, said, "the broadest of these is to provide for the 'general welfare of the United States', which makes only the sky the limit because what arguably constitutes welfare is extremely broad and diverse. One man's welfare is another man's poison, so what promotes welfare must depend from time to time on the decision of some limited number of persons. It isn't something self evident." *** But, did the Founders leave the important power to Congress to decide what subjects would serve for the public welfare? Or did they fix a list of specific powers of Congress? Does Congress have legitimate power to legislate on any subject or spend for whatever they think is good for us, the American people? In effect, to tax money from the people and spend that money to subvert and violate the peoples' rights and destroy their independence by an indirect path in the name of the "general welfare?" Do they have the power to spend unlimited tax dollars, for which we the people work hard, on their own idea of the common good? Or is it that we the people have already determined, for ourselves what the "general welfare" is? and that the Congress has no lawful power to legislate outside those narrow boundaries that we the people have already determined to be the "general welfare of the United States?" It is a serious question for which even attorneys in the Federal Government recognize and provide a definite answer.
"The last 200 years have witnessed the evisceration of federalism as a constitutional and political principle for allocating governmental power between the States and Washington. The Founding Fathers' vision of a limited national government of enumerated powers has gradually given way to an expansive, intrusive, and virtually omnipotent national government. States, once the hub of political activity and the very source of our political tradition, have been reduced - - in significant part - - to administrative units of the national government, their independent political power usurped by almost two centuries of centralization." 3
"Potestas stricte interpretatur." Power should be strictly interpreted. We are witnessing continual deliberate attempts, by those who were elected, appointed and hired to serve in positions of trust, to consolidate power and change themselves from temporary governing individual trustees into a permanent ruling class; to slowly, imperceptibly alter the correct order of things here in America. The basic moral principle of the granted powers was formulated and stated by the English philosopher John Locke (1632-1704). Locke was the most important legitimate political theoretician in history; the liberal preference for Marx and Lenin not withstanding. Marx and Lenin don't deserve to stand in the same room with Locke.
Those knaves simply were not legitimate; they were not reasonable, justifiable or conforming to accepted rules or standards.**** Samuel Eliot Morison, said Locke was a person "with whom all reading Americans were familiar" 4 at the time of the Revolution. Another historian, C. Edward Merriam, had much more to say of Locke. In 1903, he noted that:
Locke, in particular was the authority to whom the Patriots paid greatest deference. He was the most famous of seventeenth century democratic theorists. Almost every writer seems to have been influenced by him, many quoted his words, and the argument of others shows the unmistakable imprint of his philosophy. The first great speech of Otis was wholly based upon Locke's ideas; Samuel Adams, on the 'Rights of the Colonists as Men and as British subjects' followed the same model. Many of the phrases of the Declaration of Independence may be found in Locke's Treatise; there is hardly any important writer of this time who does not openly refer to Locke, or tacitly follow the lead he had taken. The argument in regard to the limitations upon Parliament was taken from Locke's reflections on the 'supreme legislature' and the necessary restrictions upon its authority. No one stated more strongly than did he the basis for the doctrine that 'taxation without representation is tyranny.' No better epitome of the Revolutionary theory could be found than in John Locke on civil government. 5
In theory there are two basic types of government; government by consent of the governed, and government by force and fraud. Locke's basic principle is not abstruse. It is the practical basis of all American government, and all other principles of government are derivatives of it. Locke's principle is sometimes called "the consent of the governed," consent is the united agreement of several interested in one subject-matter; sometimes it is called "the will of the people." 6 This is the standard by which all actions of government are judged; and violation or circumvention of this principle constitutes the very definition of tyranny. It is the absolute right of the people of a nation to determine the form of their government, to determine the principles under which it operates, to set its limits, and to place them into a constitution for all to see. This is the full meaning of governments "deriving their just powers from the consent of the governed" for the purpose of securing the fundamental inalienable rights of the people. The Federal government was designed by men who understood the basic principle that a government has no legitimate or moral authority to take the property of the people, through the exercise of taxing powers, for any purpose other than those for which the people themselves have voluntarily consented it should be taken. However imperfectly this principle is applied, it is still the basic theory of American political morality. Further, they understood that government, as the collective will of many individuals, had no moral right to do anything that an individual, acting on his own, had no moral right to do. "Nemo plus juris ad alienum transferre potest quam ipse haberet." One cannot transfer to another a larger right than he himself has. Any form of government, representative democracy, republic, monarchy, oligarchy, military dictatorship, etc., acting outside the consent of the governed has been called, since the time of Locke, a tyranny. This consent is expressed in the form of a constitutional grant of powers to the government to do for the people, that which they are incapable of doing as individuals, but only that which each individual has a right to do in the natural state. "Quod per me non possum, nec per alium." What I cannot do in person, I cannot do through the agency of another. On the federal level it is expressed as a specific grant of powers to the Federal government to do that which the states are "incompetent" to do on an individual basis. Said Dr. Felix Morley:
The philosophical structure designed by Locke fitted perfectly into the political necessities of the American colonists. The colonists were not disturbed by charges that the idea of social contract arising from the state of nature is pure fiction, for The Mayflower Compact and other communal agreements to subdue the wilderness were actually a part of their heritage. In Locke's distinction between Society and State the colonists found the philosophical justification of all their efforts to create a way of life preferable to that which they had left behind in various European principalities. 7
James Madison was one of the principal delegates at the Constitutional Convention in terms of the authorship of Article 1, Section 8. Since he was one of the main participants in writing it, nobody understood its intent and meaning better than he did. The influence of Locke on Madison is shown in a statement he made in Congress on June 8, 1789, when, on the subject of constitutional amendments, he recommended:
"That there be prefixed to the constitution a declaration, that all power is originally vested in, and consequently derived from, the people. "That Government is instituted and ought to be exercised for the benefit of the people; which consists in the enjoyment of life and liberty, with the right of acquiring and using property, and generally of pursuing and obtaining happiness and safety. . ." 8
Centuries ago, Jonathan Swift (1667-1745) noted that:
"For in reason all government without the consent of the governed is the very definition of slavery."
If, as this book intends to demonstrate, our government is acting without the consent of the governed, then it is safe to say that it has adopted an alien philosophy propounded by a Chinese sage:
Political power grows out of the barrel of a gun. Mao Tse-tung
We must never forget the primary purpose of the Constitution. As a concentration of power, the Federal government is the strongest legal body in the land. The Constitution is the law over the government. "Inde datoe leges ne fortior omnia posset." Laws were made lest the stronger should have unlimited power. Congress was created to be the servant of the People. It was not meant to be their master. "Le ley est le plus haut inheritance que le roy ad, car par le ley, il mesme et tout ses sujets sont rules, et si le ley ne fruit, nul roy ne nul inheritance serra." The law is the highest inheritance that the king possesses; for by the law both he and all his subjects are ruled; and if there were no law, there would be neither king nor inheritance. History and reason dictates that a people's own government is their greatest potential enemy. "Lex est dictamen rationis." Law is the dictate of reason. The Constitution was written as the law for the protection of the People from the potential depredations of their own government. "Le salut du peuple est la supreme loi." The safety of the people is the highest law. It is an error to assume that elected legislators and officials receive a legitimate mandate to do as they please through the direct process of elections to decide who will occupy the various elected positions. Nor does the tally of votes in an election automatically determine that the politician with the most votes is made of a "finer clay" than the rest of us and, therefore, knows what is best for our welfare. The proper function of elections is to decide who will carry out the will of the people, not to give endorsement to whoever would carry out his own will over the people. The will of the people is written down and expressed in the people's contract with their legislators and officials, and is properly and legally expressed no where else. The contract between the government and the people is called a Constitution, and this is the political law that governs and limits the government. All legislators, judges and officials are bound by oath under Article 6 to carry out the will of the people as expressed in the Constitution of the United States.9 To all who have taken the oath of office in any capacity of the government of a State or the United States, the Constitution is the voice of the people. For them, "Vox populi, vox Dei."; The voice of the people is the voice of God. The true test of any government official is how well he carries out his oath of office. Violation of that oath is usurpation.10
NOTES ON CHAPTER 1
1 THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CONSTITUTION OF THE STATE OF CALIFORNIA authorized by the California State Assembly Rules Committee. 2 see Miranda v. Arizona, 384 U. S. 436, 491; Frost Trucking Co. v. R. R. Com., 271 U. S. 583, 592-4 U. S. Supreme Court. The specific prohibitions on Congress that are written in the Constitution are few in number. Why? In Federalist Paper No. 84, Hamilton said: "I go further and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed constitution but would even be dangerous. They would contain various exceptions to powers which are not granted; and, on this very account, would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done which there is no power to do?" This statement could hardly come from one who believed the Constitution to confer a general power on the Federal government at the same time. In his concurring opinion in Griswold v. Connecticut 381 U.S. 479 at 488-491, Justice Goldberg said of Hamilton's argument that, "The Ninth Amendment and the Tenth Amendment, which provides, '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,' were apparently also designed in part to meet the above quoted argument by Hamilton." In a Los Angeles Times article titled "Bill of Rights a Product of Politics, Not Principle," on Thursday, August 24, 1989 (Part 1, p. 18) Times Staff Writer David G. Savage said, ". . . when the new plan for a federal government was being drafted in Philadelphia, the framers of the Constitution, including James Madison of Virginia, had opposed a specific listing of individual rights in the Constitution. "They contended that such a listing was unnecessary because the new government was to have quite limited powers. Because the government had no authority to limit freedom of religion or the press, Madison reasoned, why mention the subjects at all and risk getting bogged down in peripheral issues?" Hamilton's and Madison's expert witness statements rip into the the Supreme Court's ruling in Flast v. Cohen 392 U.S. 83 (1968) (See ch. 15 infra) that one opposing a federal spending program "must show that the statute exceeds specific constitutional limitations on the exercise of the taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art.1, Sec. 8. . ." and allows the claimant to attack only spending "in violation of a specific constitutional protection against the abuse of the legislative power, i. e., the Establishment Clause of the First Amendment." Kansas v. Colorado 206 U.S. 46, 87-91 (1906) (see ch. 17 infra) demonstrates that the U.S. Supreme Court once upon a time knew that the Tenth Amendment is also a specific limitation on the powers of Congress. The Court displays serious symptoms of the fatal disease known as "convenient memory." Joseph Sobran of the Ludwig von Mises Institute said, "The most important provision of the Bill of Rights was not the First Amendment (which deals with only a few particular freedoms) but the 10th. Like the First, but in much broader language, the 10th Amendment limits the powers of the Federal government." By the Court's own reasoning in Flast v. Cohen, if there were no 1st Amendment, which Hamilton claimed would be unnecessary and dangerous, the Court would never prevent Congress from doing what Hamilton said, "there is no power to do." Thanks to the 1st Amendment, the Court allows Congress to do what, "there is no power to do," only almost all the time. The Court, in short, has made a liar out of John Marshall (ch. 14 infra). It is more than just a little strange that the Supreme Court should pay such homage to the First Amendment while ignoring the Tenth completely. The answer lies in the consequences resulting from the last time the Court rigorously enforced the Tenth Amendment. Joseph Sobran said, "Enraged, Roosevelt tried to enlarge the court so that he could swamp it with his hand-picked flunkies. He didn't succeed, but the court's natural turnover soon had the same effect. By 1940, the court submitted, pronouncing the 10th Amendment a mere 'truism,' of no real effect. It has been a dead letter, and an embarrassment, ever since." So the real reason the modern Court now ignores the big Tenth is-- lack of guts; its unwillingness to protect the People from the encroachments of the other two branches arises from no principle, arcane or obvious, but from expediency."
3 THE STATUS OF FEDERALISM IN AMERICA Chapter 1. This is a report of the Working Group on Federalism of the Domestic Policy Council. The Working Group on Federalism, established in August 1985, is an inter-agency working group consisting of representatives and attorneys of nine agencies and the White House.
4 THE OXFORD HISTORY OF THE AMERICAN PEOPLE by Samuel Eliot Morison (OXFORD UNIVERSITY PRESS, New York; 1965), p. 271.
5 A HISTORY OF AMERICAN POLITICAL THEORIES by C. Edward Merriam (1903). See also THE CHRISTIAN HISTORY OF THE CONSTITUTION OF THE UNITED STATES compiled by Verna M. Hall (FOUNDATION FOR CHRISTIAN EDUCATION, San Francisco, CA; 1978), p. 51. For Locke's dissertation most pertaining to the subject in this book, see Appendix A infra, THE MORAL BASIS OF THE GRANTED POWERS.
6 See Appendix A infra, THE MORAL BASIS OF THE GRANTED POWERS and HAMILTON ON THE CONSENT OF THE GOVERNED. See also THE DECLARATION OF INDEPENDENCE (2d par.) "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. To secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed." When vetoing an act of Congress on May 27, 1830, Andrew Jackson said, "This policy, like every other, must abide the will of the people. . .". See ch. 7 infra. Even in the baneful United States v. Butler case of 1936 (Ch. 14 infra), while it began the process of betraying the principle, the Supreme Court said, "The question is not what power the Federal Government ought to have but what powers in fact have been given by the people."; and many States have an equivalent to Article II, Section 1 of the California State Constitution, "All political power is inherent in the people. Government is instituted for their protection, security and benefit, and they have the right to alter or reform it when the public good may require." "It has very truly been said that out of the mass of sovereignty intrusted to the states was carved a part and deposited with the United States. But this was taken by the people, and not by the states as organized communities. The people are the fountain of sovereignty. The whole was originally with them as their own. The state governments were but trustees acting under a derived authority, and had no power to delegate what was delegated to them. But the people, as the original fountain, might take away what they had leant and intrust it to whom they pleased. They had the whole title, and, as absolute proprietors, had the right of using or abusing. . ." BOUVIER'S, Vol. 3, p. 3372, (1914).
7 THE POWER IN THE PEOPLE by Felix Morley (D. VAN NOSTRAND, New York; 1959), p. 73.
8 THE ANNALS OF CONGRESS, Vol. 1, p. 451. See also Madison's Federalist Papers Nos. 37, 39, 49.
9 U. S. Constitution, Article VI - "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, any Thing in the Constitution or laws of any state to the Contrary not withstanding. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution . .". See also Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-9 (U. S. Supreme Court; 1803) in ch. 17 infra. See also Hamilton's Federalist Papers No. 33 and 78 or HAMILTON ON THE CONSENT OF THE GOVERNED in Appendix A infra.
10 See Appendix C infra.
* PREAMBLE an introductory clause in a constitution, statute, or other legal instrument which states the intent of that instrument; "a prefatory statement or explanation or a finding of facts by the power making it, purporting to state the purpose, reason, or occasion for making the law to which it is prefixed." 177 P. 742, 744. Steven Gifis, LAW DICTIONARY.
". . . Although that Preamble [the Preamble of the Constitution of the United States] indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom." Jacobson v. Massachusetts, 197 U.S. 11, 22 (U.S. Supreme Court; 1904). "Generale nihil certi implicat." A general expression implies nothing certain. "Incerta pro nullis habentur." Things uncertain are held for nothing.
"The question here proposed is whether our bond of union is a compact entered into by the states, or the constitution is an organic law established by the people. To this question the preamble gives a decisive answer: We, the people, ordain and establish this constitution. The members of the convention which formed it were indeed appointed by the states. But the government of the states had only a delegated power, and, if they had an inclination, had no authority to transfer the allegiance of the people from one sovereign to another. The great men who formed the constitution were sensible of this want of power, and recommended it to the people themselves. They assembled in their own conventions and adopted it, acting in their original capacity as individuals, and not as representing states. The state governments are passed by in silence. They had no part in making it, and, though they have certain duties to perform, as the appointment of senators [now by popular vote under the 17th amendment], are properly not parties to it. The people in their capacity as sovereign made and adopted it; and it binds the state governments without their consent. The United States as a whole, therefore, emanates from the people, and not from the states, and the constitution and laws of the states, whether made before or since the adoption of that of the United States, are subordinate to it and the laws made in pursuance to it." BOUVIER'S (1914), Vol. 3, p. 3372.
"Sovereignty. The union and exercise of all human power possessed in a state: it is a combination of all power; it is the power to do everything in a state without accountability,--to make laws, to execute and apply them, to impose and collect taxes and levy contributions, to make war or peace, to form treaties of alliance or of commerce with foreign nations, and the like." BOUVIER'S (1914), Vol. 3, p. 3096.
The Constitution itself is in every real sense a law--the lawmakers being the people themselves, in whom under our system all political power and sovereignty primarily resides, and through whom such power and sovereignty primarily speaks. It is by that law, and not otherwise, that the legislative, executive, and judicial agencies which it created exercise such political authority as they have been permitted to possess. The Constitution speaks for itself in terms so plain that to misunderstand their import is not rationally possible. "We the people of the United States," it says, "do ordain and establish this Constitution. . ." Ordain and establish! These are definite words of enactment, and without more would stamp what follows with the dignity and character of law. The framers of the Constitution, however, were not content to let the matter rest here, but provided explicitly--"This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; . . . shall be the supreme Law of the Land; . . ." The supremacy of the Constitution as law is thus declared without qualification. That supremacy is absolute; the supremacy of a statute enacted by Congress is not absolute but conditioned upon its being made in pursuance of the constitution. And a judicial tribunal, clothed by that instrument with complete judicial power, and, therefore, by the very nature of the power, required to ascertain and apply the law to the facts in every case or preceding properly brought for adjudication, must apply the supreme law and reject the inferior statute whenever the two conflict. In the discharge of that duty, the opinion of the lawmakers that a statute passed by them is valid must be given great weight, Adkins, v. Children's Hospital, 261 U.S. 525, 544; but their opinion, or the court's opinion, that the statute will prove greatly or generally beneficial is wholly irrelevant to the inquiry. Schecter v. United States, 295 U.S. 495, 549-550. Carter v. Carter Coal Co., 298 U.S. 238, 297 U. S. Supreme Court (1936)
Laws, whether organic or ordinary, are either written or unwritten. A written law is that which is promulgated in writing, and of which a record is in existence. The organic law is the Constitution of Government, and is altogether written. Other written laws are denominated statutes. The written law of this State [California] is therefore contained in its Constitution and statutes, and in the Constitution and statutes of the United States. Statutes are public or private. A private Statute is one which concerns only certain designated individuals, and affects only their private rights. All other statutes are public, in which are included statutes creating or affecting corporations. CALIFORNIA CODE OF CIVIL PROCEDURE Sections 1895, 1896, 1897, 1898 (enacted 1872)
** Legal systems are generally logical systems. A maxim is a principle of law universally admitted as being just and consonant with reason. A maxim of law is said to be somewhat like an axiom in geometry, as opposed to a theorem, which is a proposition that can be proved from accepted premises. Maxims are recognized as self-evident truths requiring no proof, argument or discourse. Unless stated otherwise, the maxims in this book are from BOUVIER'S 1914 edition and are preceded by the Latin or French phrase.
*** CRACKS IN THE CONSTITUTION by Ferdinand Lundberg, (LYLE STUART INC., Secaucus N. J.; 1980) p. 181. Government funds are being appropriated to a multitude of purposes not restricted to objects germane to its delegated powers, on the principle that the Federal Government has unlimited power to appropriate money for the promotion of the "general welfare," and also because emergency conditions justify abnormal expenditures, even for private enterprises, State and local developments, and relief, which are not in themselves national character. Government is competing with private business and is establishing "yard-sticks" with which to measure and coerce private business. The "spheres" of Federal activity are being extended through the benefit of appropriations, and by coercive penalties inflicted upon the recalcitrants. Power is being concentrated in the Executive arm of the Federal Government through its granting of financial favors. DEMOCRATIC DESPOTISM by Raoul E. Desvernine (DODD, MEAD AND COMPANY, NEW YORK; 1936) pp. 170, 171.
**** Alexandria Va. columnist Alan Brownfeld, concluding that Marxist predictions have proved almost 100 per cent false, quoted one of the leading scholars of Marxism, Eugene Kamenka, "Marxism has failed us. It has failed as a science of society, as an ethic (ethics is conspicuously absent from Marxist theory) and as a political movement promising and working toward that 'true Communism' in which alienation, exploitation, and dehumanization would disappear... . Socialist democracy and justice, and socialist conceptions of human rights, have come to mean the opposite of justice, democracy, and human rights." ORANGE COUNTY REGISTER, Santa Ana, CA, Sept. 17, 1989, p. J3.
+ As stated in THE CONSTITUTION OF THE UNITED STATES OF AMERICA AND THE CONSTITUTION OF THE STATE OF CALIFORNIA : "Headings and paragraph numbers have been inserted to assist the reader, and are not to be construed as a part of the Constitution. The original Constitution contains only article and section numbers." p. 35. The stated interpretation of the heading ("Powers Granted to the Congress") in the legislative handbook mentioned above, of Article 1, Section 8 is that this is the list of powers granted or delegated to Congress. All constitutional Federal power is channelled from the People through the Constitution to Congress, and from Congress, through statute, to the heads of various Federal agencies, and by regulation, from the head of the agency to the bureaucracy; e.g. through Article 1, Section 8, Clause 1, the People granted Congress the "power to lay and collect taxes, duties, imposts and excises. . ."; through 26 USC § 7801, Congress delegated authority to administer and enforce the Internal Revenue Code, enacted by Congress, to the Secretary of the Treasury. Through 26 USC 7701 §§ (11) & (12), Congress has set up the structure of the language of the Internal Revenue Code by which the Secretary of the Treasury has authority to delegate enforcement and administrative powers for various sections of the IRC to his agents and their agents within the Department of the Treasury through the Treasury Regulations (26 CFR) and specific delegation orders. Through 26 USC § 7802, the Commissioner of Internal Revenue receives all of his power entirely from the Secretary of the treasury.
++ "The constitution and laws made in pursuance of it,--that is, laws within their granted powers,--and all treaties, are the supreme law of the land, art. 6; and the judicial power, art. 3, section 1, gives to the supreme court the right of interpreting them. But this court is but another name for the United States, and this power necessarily results from their sovereignty; for the United States would not be truly sovereign unless their interpretation as well as the letter of the law governed. But this power of the court is confined to cases brought before them, and does not embrace principles independent of these cases. They have no power analogous to that of the Roman praetor of declaring the meaning of the constitution by edicts. Any opinion, however strongly expressed, has no authority beyond the reasoning by which it is supported, and binds no one. But the point embraced in the case is as much a part of the law as though embraced in the letter of the law or constitution, and it binds public functionaries, whether of the states or United States, as well as private persons; and this of necessity, as there is no authority above a sovereign to which an appeal can be made. "Another question of great practical importance arose at an early period of our government. The natural tendency of all concentrated power is to augment itself. Limitations of authority are not to be expected from those to whom power is intrusted; and such is the infirmity of human nature that those who are most jealous when out of power and seeking office are quite as ready practically to usurp it as any other. A general abrogation commonly precedes a real usurpation, to lull suspicion if for no other purpose." BOUVIER'S Vol 3, p. 3372 (1914).
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