Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
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  Article I § 8 clause 1  
 
 
"In this situation of this assembly, groping in the dark to find political truth, and scarce able to distinguish it when presented to us, how has it happened, sir, that we have not hitherto once thought of humbly applying to the Father of Lights to illuminate our understandings? In the beginning of the contest with Great Britain, when we were sensible of danger, we had daily prayer in this room for divine protection. Our prayers, sir, were heard, and they were graciously answered. All of us who were engaged in the struggle must have observed frequent instances of a superintending Providence in our favor. To that kind Providence we owe this happy opportunity of consulting in peace on the means of establishing our future and national felicity. And have we forgotten that powerful Friend? Or do we imagine that we no longer need His assistance? I have lived, sir, a long time, and, the longer I live, the more convincing proofs I see of this truth, that God governs the affairs of men. And if a sparrow cannot fall to the ground without His notice, is it probable that an empire can rise without His aid? We have been assured, sir, in the sacred writings that ‘except the Lord build the house, they labor in vain that build it.’ I firmly believe this. I also believe that without His concurring aid we shall succeed, in political building, no better than the builders of Babel. We shall be divided in our little partial local interests, our projects will be confounded, and we ourselves shall become a reproach and a by-word down to future ages. And, what is worse, mankind may hereafter, from this unfortunate instance, despair of establishing governments by human wisdom, and leave it to chance, war, and conquest." 1
 
 

Article I § 8 clause 1:

Given the global covenant, there are serious problems in Article I § 8, even starting with the first clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

In modern parlance, "Duties, Imposts and Excises" are types of taxes. But here, "Taxes" is juxtaposed to "Duties, Imposts and Excises" not as an encompassing concept, but as a concept distinct from "Duties, Imposts and Excises". So we’re led to wonder what "Taxes" are in this context. Part of the distinction between "Duties, Imposts and Excises" on one hand, and "Taxes" on the other, is given in this clause. It says, "but all Duties, Imposts and Excises shall be uniform throughout the United States". So "Duties, Imposts and Excises" are always "uniform". But according to Article I § 2 cl 3, 2 "direct Taxes shall be apportioned among the several States". So "direct Taxes" are "apportioned among the several States" by population, whereas "Duties, Imposts and Excises" are "uniform". The latter follow a "rule of uniformity", whereas the former follows a "rule of apportionment". This leads us to wonder if "direct Taxes" in Article I § 2 clause 3 is the same thing as "Taxes" in Article I § 8 clause 1. It is commonly believed that the "direct taxes" phrase in Article I § 2 clause 3 was modified by the 16th Amendment, thereby making the "income tax", which is purportedly a "direct Tax", "uniform" rather than "apportioned". Because of the complexity of this issue, we’ll not address it now. 3 But it’s worth wondering if millions of Americans are paying "income taxes" not because they are legally obligated to pay them, but because it’s easier for them to be obedient to the IRS and its cohorts in the legal and accounting professions, than it is to study these things personally. Instead of examining such issues now, we’ll consider how taxation, generally, is viewed from the perspective of the global covenant.

In the investigation, we discovered that the bloodshed mandate in the Noachian Covenant applies to all human beings. It applies regardless of whether one is a victim of bloodshed, a perpetrator, or a by-stander. All humanity is subject to this mandate. We postulated that jural societies exist to make sure that this mandate is enforced. The manner in which it is enforced is subject to consent. And whether a given people-group chooses to honor God by choosing to enforce this mandate is also an act of consent. But given that a person, or a people, has committed to enforcing this mandate, violators of it are not subject to consent. 4 If so-and-so kills someone, and refuses to consent to being executed, the jural society simply ignores his refusal, because so-and-so has abdicated his right to choose another fate. — In contrast to the jural society, we postulated that ecclesiastical societies have a purely contractual origin. In other words, they are based entirely upon consent. Under this ecclesiastical jurisdiction, there is no absolute good and evil. There is only compliance with contractual obligations, or non-compliance. Non-compliance carries penalties. But if someone who has no contractual obligations murders someone else, there is no way that an ecclesiastical society can have jurisdiction, because the jurisdiction of the jural society trumps that of the ecclesiastical society in such circumstances, i.e., regarding this subject matter. Modern jurisprudence can presume to place a monetary value on the victim’s life, and to award damages to the victim’s kin. An action for damages by relatives of a victim of bloodshed is an action that pertains to a subtle delict. The courts would treat the victim’s relationships with his/her kin as the property of such kin, and would award damages based upon the belief that such property was damaged. The damaged property in such a case is the relationships, not the life of the victim. This is because the life of the victim belongs to the victim, and to the victim alone. The damage to the victim is also a delict – in the case of murder, a gross delict. So all delicts fall within the scope and purview of the jural society, while the ecclesiastical society has jurisdiction strictly over contracts. Placing a monetary value on a human being’s life is foolishness, because every human being is created in the image of God. It’s ridiculous to place a monetary value on God. It’s likewise ridiculous to place a monetary value on the image of God in a human being. No amount of money can pay for such a life. To believe otherwise is to believe in the moral foundations upon which slavery is based.

A superficial understanding of these things might lead one to believe that these issues have nothing whatever to do with Article I § 8 clause 1. But such a superficial understanding neglects the whole issue of where, exactly, the power and authority to tax comes from. Were the framers simply setting up another tyranny? Or does the power and authority to tax that Article I § 8 clause 1 allocates to Congress lie on a moral foundation that itself supersedes consent?

What supersedes consent about human beings is the fact that each one of us is created in the image of God. As a result, each one of us has certain attributes that are "unalienable", and these attributes are what we’re calling rights. The jural mandate relates directly to protecting these unalienable Rights, whereas ecclesiastical societies function to protect contractual privileges, and contractual privileges alone. Such privileges are not "unalienable". On the contrary, they can be alienated as easily as any given contract can be nullified or breached. — If the power and authority to tax that Article I § 8 clause 1 allocates to Congress lies on a moral foundation that supersedes consent, then – from the perspective of Bible-based theology – this power and authority relates directly to the bloodshed mandate in Genesis 9:6, because this bloodshed mandate is the only human law that Scripture mandates for the entire human race. Since the Constitution is geared to cover all cultures and ethnic groups that come to exist within the Constitution’s geographical jurisdiction, from a Judaeo-Christian perspective, this is the only human law that inevitably applies to everyone. So we necessarily conclude that the moral foundation that gives Congress the power and authority to tax – where such power and authority even supersede the consent of the taxed – is jural in nature, and pertains exclusively to the protection of unalienable Rights. — In other words, because vigilante committees are inherently fallible; and because due process of law is important to finding justice where any delict has been perpetrated; and because "Governments are instituted among Men" to "secure" unalienable Rights, and to do so through due process of law; taxation is important to keep the jural society functional. Without taxation, the jural society lacks the ability to maintain the trained, skilled specialists necessary to due process of law. Taxation allows the average citizen to live a normal life, relying on these specialists to keep the peace. It stands to reason that every human being within the geographical jurisdiction of the given jural society has a duty, under the bloodshed mandate, to pay taxes for this specific purpose. Such taxation is inherently non-consensual. Consent is NOT a prerequisite to such taxation. As long as the jural society confines itself to its legitimate function – protecting property rights – and does so without becoming a violator of property rights, and as long as a given human being lives within the geographical jurisdiction of the given jural society, taxation is non-negotiable, and prior consent is negligible. — But does every human being within the geographical jurisdiction of the given jural society have a duty to pay taxes for programs and personnel that are inherently non-jural? — No! The latter form of taxation does NOT have a foundation that supersedes consent. It is therefore inherently consensual.

One of the rarely spoken assumptions in the united States is that the concept that governments derive "their just Powers from the consent of the governed" pertains to majority rule. In other words, "Governments are instituted among Men, deriving their just Powers from the" consent of the majority. The problem with this assumption is that it is nowhere confirmed in Scripture. A majority is as capable of perpetrating bloodshed as an individual criminal, or an individual tyrant. The framers of this nation’s organic documents weren’t stupid. They knew this. They may not have had a theology fleshed out adequately to make the distinctions that we’re making here, but it’s probable that the Bible-believing among them had at least some inkling about these distinctions. 5 The obvious fact to us, today, is that "consent of the governed", in order to be consistent with Scripture, might have two different meanings. One meaning pertains to the consent accorded to an ecclesiastical society. The other pertains to the consent accorded to a jural society. In both cases it’s true that governments derive their "Powers from the consent of the governed". But this is true for two different reasons. 6

(1)A permanent jural society is formed through agreements, contracts, and covenants that define the forms that due process takes, the ways that offices are filled, the rules of court, etc. The "governed", under such circumstances, consent, or acquiesce, with regard to these due process mechanisms. But if they refuse to consent to the basic impetus behind the jural society, namely, the protection of rights (especially property rights and the right to contract), then the jural society has a duty / privilege / obligation, under Genesis 9:6, to remind the "governed" of the latter’s obligation to enforce against bloodshed, and even to use confiscatory methods of taxation. As long as the jural society confines itself to its Scripturally legitimate purpose and function, it has a lawful power and authority to tax. This is because the bloodshed mandate applies to all human beings, regardless of whether they like it or not, and regardless of whether they consent, or not. Consent between individuals forms the jural society, defines its due process mechanism, defines the mechanisms by which it is maintained, and establishes its geographical jurisdiction. As long as the jural society confines itself to its Scripturally legitimate purpose and function, all people within its geographical jurisdiction who are able are duty-bound to pay taxes to keep the jural society functional.

(2)A permanent ecclesiastical society is also formed through agreements, contracts, etc. But the purpose of the ecclesiastical society is very different from that of a jural society. This is because its purpose is not to curb bloodshed, protecting unalienable Rights, but to enforce the terms of agreements and contracts. Consent in this latter sense applies only to people who are party to such agreements, contracts, etc. — The Declaration is speaking of securing "unalienable Rights". It is therefore speaking of consent as it pertains to a jural society (At least from a reliable Scriptural perspective, that’s the meaning.). It is emphatically NOT speaking of consent as it pertains to an ecclesiastical society, because ecclesiastical societies do not secure unalienable Rights, but alienable privileges. But because of the nature of the items mentioned in Article I § 8 clause 1 of the Constitution, there is no way we can make the same claim about this clause.

Since "The Congress shall have Power To lay and collect" practically any kind of taxes, the absolutely crucial question we need to ask is this: For what purpose? — If Congress collects taxes to support the jural society within its legitimate functions, then those of us within the geographical jurisdiction of this jural society are duty-bound to acquiesce in the payment of such taxes. If Congress charges a user’s fee to anyone who uses the ecclesiastical courts within this geographical jurisdiction, then such users are duty-bound to pay. But if Congress attempts to collect taxes for boondoggles, free lunches, give-away programs, and other vote procurement enterprises, citizens are duty-bound to refuse. But if a citizen receives a benefit, then that benefit is a sign that there is probably a contract between such beneficiary and some other party. If the other party is Congress, by way of some agency of the general government, then one’s reception of the benefit is a sign that the recipient has obligations related to that benefit. Such obligations may well be the payment of some form of tax. — But none of this is spelled out yet. It’s essential to see what the Constitution says these "Taxes, Duties, Imposts and Excises" are for. It’s essential to see what they’re supposed to pay for.

(1)The first thing mentioned that these taxes are for, is "to pay the Debts". OK! A jural society might run up some debts. If they’re doing a good job otherwise, we, "the governed", would be well-advised to pay their debts. — If an ecclesiastical society runs up debts, then the people who use the facilities of that ecclesiastical society should pay those debts. For the government to force people to pay for a benefit that they do not receive is for the government to perpetrate bloodshed against its people, thereby becoming a violator of their property rights. All people within the geographical jurisdiction of the social compact are obligated to pay taxes to support its legitimate jural society. This is according to the bloodshed mandate. But not all people benefit directly from the existence of the social compact’s ecclesiastical society. The latter society adjudicates contractual disputes. A party to the given social compact may be involved in numerous contracts that fall within the jurisdiction of the ecclesiastical society. But such a party might never, throughout his entire life, be involved in a contractual dispute that needed to be adjudicated by this ecclesiastical society. It therefore makes no sense for this party to be mandated to pay for the upkeep and maintenance of this system of ecclesiastical courts. To put such a burden on such a party would be to violate this party’s property rights. From a Scriptural perspective, the legitimate way for the ecclesiastical society to be supported is through user’s fees. — We need to conclude that when paying these "Debts", and when collecting "Taxes, Duties, Imposts and Excises" to pay these "Debts", it’s necessary to collect them in accord with the two different types of consent delineated above. 7

(2)The next thing mentioned that these taxes are for is to "provide for the common Defence". The protection against foreign encroachment is a perfectly legitimate function of a jural society. So we’d be well-advised to pay for it. This "common Defence" is a purely jural function. The jural society might contract with munitions manufacturers and other defense contractors, and if there were related contractual disputes, such disputes would naturally fall within the jurisdiction of the ecclesiastical compact. Under such circumstances, tax revenues would naturally be paid by the jural society as a user’s fee to the ecclesiastical society. But generally, "common Defence" is a purely jural function. Payment of taxes for such a function, like payment of taxes for all jural functions, is mandatory for all that live within the geographical jurisdiction of the jural compact.

(3)The next thing mentioned that these taxes are for is to "provide for the . . .  general Welfare of the United States". Here is where we’re getting into serious trouble. This is because "general Welfare of the United States" is inherently so open-ended. It could be limited to purely jural functions, or it might entail turning the government into some kind of "big brother" that snoops into otherwise private kitchens, bathrooms, bedrooms, etc., making sure that the "general Welfare" of every human being within the social compact’s geographical jurisdiction is cared for assiduously. If every human being within the social compact’s geographical jurisdiction desires this kind of "general Welfare", then this kind of "general Welfare" might be an overall good thing. But if there is even a single human being who refuses to have anyone, including the government, encroach upon his private property in this manner, then if the government does it anyway, then the government thereby makes itself a perpetrator of bloodshed. If the government functions by majority rule, then the entire population is culpable, excluding this one victim. — We have to conclude that the taxes to pay for the "general Welfare of the United States" might be bloodshed, and it might not. It depends entirely upon how this "general Welfare" is defined.

Since the united States under the Articles of Confederation were a confederacy, it’s clear that if "general Welfare" was something defined within those Articles, then "general Welfare" was, in the framers’ minds, by definition something intended for a confederation. In fact, the 3rd Article of Confederation said that the thirteen States "hereby severally enter into a firm league of friendship with each other, for their . . .  general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.". 8 This is obviously primarily about common defense against a foreign invader. The 8th Article says, "All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, . . .  shall be defrayed out of a common treasury, . . . .". 9 It’s clear that "general welfare" in both the Articles of Confederation and the Constitution is a legal term of art that pertains to the welfare of a confederation. It has absolutely nothing in common with the modern conception of "general Welfare". "[G]eneral Welfare" defined within the context of a confederation is radically different from "general Welfare" defined within the context of a consolidated nation. Since the framers collectively desired to combine features from the Confederation with features of a consolidated nation, the fact that they lifted "general welfare" from the Articles of Confederation indicates that the meaning in the Constitution was intended to be very similar to the meaning in the Articles. It was a relatively limited concept of "Welfare". It was emphatically NOT the megalomaniacal concept of "Welfare" envisioned by exponents of the modern Welfare State. 10

Like the 3rd and 8th Articles of Confederation, the Common Defense and General Welfare Clauses in the Preamble and Article I § 8 clause 1 identify the general purposes for the Constitution, and for taxation. It makes sense that if a secular government is not limited by a clear definition of purpose – and a rigorous linkage between taxation and spending – such secular government might be inclined to collect taxes for purposes well beyond the scope of legitimacy. This is precisely the problem with Article I § 8 clause 1. "Many anti-federalists maintained that the Common Defence and General Welfare Clause in Article I, Section 8 was sure to be used as a pretext by usurpation-minded politicians to assert a predominant and sweeping power of Congress . . . . Furthermore, they said that, not only would a general power of legislation be claimed by Congress, but soon inherent limits of republican government would be exceeded.". 11 This is precisely what happened as early as 1798, in the Alien and Sedition Acts. Even though the latter two acts were soon repealed, the abuse of this General Welfare Clause continued, and eventually morphed into a platform for national American socialism in the 20th century. It tends to make one wonder: If the original intent of the framers was for Congress to have plenary power to legislate on whatever they wanted, why did the framers go to the trouble of enumerating the powers of Congress in Article I § 8?

The primary legislation passed by Congress for the establishment of the welfare state, was the Social Security Act. It was passed in August, 1935. The preamble of this Act says this: "An Act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws. . . . " 12 "[G]eneral welfare" in the Social Security Act is obviously not the same thing as "general Welfare" in Article I § 8 clause 1. This is verified by looking at what James Madison said when he vetoed a bill for "internal improvements" in 1817: "To refer the power in question to the clause ‘to provide for the common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the limited one hitherto understood to belong to them." 13 — If the Social Security Act were solitary and insignificant, we might overlook it as a fluke in constitutional history. But it is not solitary, and it is not insignificant. In fact, it is the linchpin that allows the modern American Welfare State to keep rollin’ on. 14

After the Social Security Act became law, the States generally set up welfare departments in all their counties for the sake of administering parts of this act. 15 This is more evidence of the consolidation of government. It is evidence that the States were turning more and more into little more than administrative provinces, 16 and the confederation side of the Great Compromise was being abandoned. The framers envisioned a confederate republic, in keeping with the teachings of Baron de Montesquieu. 17 Instead, in the 20th century, after the War Between the States, the system created by the framers morphed into a consolidated nation, definitely not a confederacy, and hardly a republic. 18

Under the guise of a national emergency created by the Great Depression, 19 the "New Deal" administrations of President Franklin D. Roosevelt were able to push not only the Social Security Act, but also "the greatest reform surge in history", 20 through Congress and into de facto law. Like the modern concept of "general Welfare", these laws have marginal constitutional authority, at best. In other words, that the laws generated by the New Deal Welfare State are de jure is highly unlikely. Nevertheless, they are de facto because all the guns and jails in American government support them, even if the Constitution doesn’t, and even if the global covenant doesn’t. The Great Depression created such confusion and insecurity that New Deal laws that circumvented the Constitution were passed without a single amendment being proposed, much less ratified. The courts responded in 1935-1936 with voluminous repudiations of New Deal legislation: "In the course of those years some 1600 injunctions against the application of New Deal laws were issued by lower court judges.". 21 In those years, the supreme Court also nullified New Deal legislation. Chief Justice Charles E. Hughes, in Schechter Poultry Corp. v. United States, delivered the unanimous decision that, "Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate . . . , but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extraconstitutional authority were anticipated and precluded by the explicit terms of 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.’". 22 This was the supreme Court’s response – sometimes – to the government’s argument that extraordinary legislation was "justified by the national economic emergency". 23 This decision in Schechter certainly appears to be consistent with the framers’ original intent. Even so, the Court’s constitutional opposition to the New Deal’s "reform surge" was short lived.

After having much of his socialist legislation nullified by the judicial branch, Roosevelt submitted a Court Reorganization bill to Congress, his notorious court-packing plan. In essence the legislation would allow up to six more judges to be added to the supreme Court, thereby allowing Roosevelt to appoint more justices, and gain support for his schemes. "[T]he President’s policies were being thwarted by the Court, and he proposed to get enough men on the bench to alter the character of the decisions.". 24 Congress rejected Roosevelt’s plan, but the justices were apparently so dismayed by the whole episode that some of them retired, and others decided to go along with the President’s "emergency" program. In short, all opposition from the judicial branch, to this massive circumvention of the Constitution, was eliminated by 1937. "New Deal legislation went through the Court without difficulty after 1937.". 25

The huge changes in the American legal system during and since the Great Depression may not appear, at first glance, to be at odds with the global covenant. But if we recall that the only function of the jural compact is to render justice against bloodshed, and non-consensual taxation is justified for this purpose, and for this purpose alone, then it’s evident that any non-voluntary taxation for any other purpose, including every form of "general welfare" that became positive law during the Great Depression, is itself bloodshed. Such non-voluntary taxation is essentially theft. The fact that the government perpetrates the theft makes such theft no less a form of bloodshed. — All the apparently good things that such legislation was designed to do, are the lawful province of social compacts that are based entirely upon agreement and consent, especially ecclesiastical compacts. They are never within the scope and purview of a legitimate jural society. — These "general Welfare" boondoggles continue to be nothing more than a renewed effort at building the Tower of Babel. Even so, it’s important to wonder how we got into this situation in the first place. Although the "general Welfare" clause has provided an easy rationale for exponents of a consolidated national government, the real constitutional mechanism has been the Commerce Clause. 26

Whatever the means of its birthing, the Welfare State has been a radical departure from the original intent of the framers. Admittedly there was disagreement among the framers about the meaning of "general Welfare". Madison and Jefferson, representing the majority view, believed that it should be understood to be nothing more than a "summary or general description of the specific powers" enumerated in Article I § 8, and that it gave Congress no additional powers. But Alexander Hamilton – the most outspoken voice for national consolidation at the Constitutional Convention – contended that it was another enumerated power. Another possible view was that it gave Congress unlimited power to legislate. The latter view violates the contention among federalists that the Constitution was limited. In the final analysis, Hamilton’s view also violates the limited Constitution. This is because there is no rigorous definition of "general Welfare". All views other than the strict constructionist view of Madison and Jefferson violate the global covenant by making a claim that it’s valid to tax for whatever government may claim is "general Welfare". 27

The supreme Court never ruled on this issue until 1936. In United States v. Butler the Court endorsed Hamilton’s view. At the same time that it ruled the Agricultural Adjustment Act of 1933 unconstitutional, the Court opened the door wide to the Welfare State by explicitly accepting Hamilton’s view, and claiming authority to judge on a case-by-case basis whether "general Welfare" legislation really was in the general welfare of the consolidated nation. 28 But long before 1936, the Court had allowed Congress to exercise powers not explicitly found in the Constitution. Congress created a national bank – a dubious act, at best, in light of the global covenant – and the Court approved of the bank in McCulloch v. Maryland (1819). Congress emitted bills of credit and made such paper money legal tender – another dubious act – and the Court approved in the Legal Tender Cases (1871). Congress controlled the value of paper money by making it legal tender in private contracts, as well as public – another dubious act – and the Court approved in the Gold Clause Cases (1935). 29 These acts of the general government laid parts of the legal foundations for the Welfare State.

The Welfare State would not be the Welfare State without administrative agencies. — Article I delegates powers to the legislative branch. Article II delegates powers to the executive branch. Article III delegates powers to the judicial branch. The framers deliberately separated these powers for the sake of minimizing corruption. Administrative agencies do the opposite. They bring these powers together within inadequately checked bureaucracies that are by nature breeding grounds for corruption. The Welfare State has circumvented the intent of the framers by having all three constitutional powers exercised within a single entity, with the approval of the Court, Congress, and the President. "Law promulgated by the agencies now occupies an importance equal to statutory law in regulating every aspect of American society." 30 Such laws are not only promulgated by the agencies, but also enforced and adjudicated by the agencies. — The monarchy of King George has been replaced with an entrenched, monolithic bureaucracy. The former and the latter yield the same results – tyranny on both counts.

"The most fundamental challenge to the administrative state focused on whether this delegation of power is permissible." 31 The Court’s affirmative marks a seismic shift away from respect for human rights. In cases like Field v. Clark (1892), United States v. Grimaud (1911), and J.W. Hampton Jr. & Co. v. United States (1928), the Court allowed Congress to delegate lawmaking powers to the executive branch. Under the pressure of the Great Depression, 32 this delegation of lawmaking power to the executive increased exponentially. The Court at first invalidated such delegation in cases like Schechter Poultry Corp. v. United States (1935). But after the court-packing scheme, the Court gave in to pressure and put their stamp of approval on the creation of such all-in-one agencies in cases like American Power & Light Co. v. SEC (1946) and Yakus v. United States (1944). In cases like Crowell v. Benson (1932) and Commodity Futures Trading Commission v. Schor (1985), the Court approved Congress’s delegation of adjudicative powers to administrative agencies.

People who lack scruples, or who are satisfied playing the money-making game by Hamiltonian rules, 33 run to lobby Congress about their pet issue. When Congress isn’t able to make a clear decision, it often delegates the lobbyist’s problem to an administrative agency. Then "the political clashes avoided by Congress [are] played out again in the context of the agency’s decision-making process. Agency decisions [are] not simply the result of applied expertise, but [are] in reality political decisions.". 34

The supreme Court continues to claim judicial review powers over administrative agencies. But the Court has also adopted the "rule of exhaustion". The rule of exhaustion demands that an aggrieved person exhaust all administrative remedies by pursuing all avenues of relief within the agency before the Court will grant judicial review. 35 So any aggrieved person who is convinced that such administrative agencies have no lawful right to impose regulatory takings or any other type of takings, is left with almost no lawful source of relief within government. — Since cases like Marchetti v. United States (1968) hold that taxation may be unconstitutional if it "infringes on a specific constitutional prohibition", like the Free Exercise Clause of the 1st Amendment or the 5th Amendment’s protection against self-incrimination, 36 it may be possible to avoid an administrative court on such grounds, assuming that one can find a sympathetic federal judge. But finding such judges is increasingly difficult as America optimistically assumes the ancient role of Tower of Babel redux.

In summary, Article I § 8 cl 1 is now a huge source of government-perpetrated bloodshed.

Footnotes

1"[T]here was nearly a breakup of the Philadelphia Convention over the question of how the several States should be represented in Congress. On June 28, 1787, Benjamin Franklin made a remarkable speech. . . .  Dr. Franklin turned his eyes to General Washington in the chair, and spoke" these words. "In concluding his remarks . . . , Dr. Franklin supposed that perhaps a clergyman in Philadelphia might be engaged to offer prayers each morning, then sat down. ‘Never did I behold a countenance at once so dignified and lighted,’ recounted Jonathan Dayton some years later, ‘as that of General Washington at the close of this address.’ . . .  Alexander Hamilton fretted about what the general public might think if they knew the convention was so desperate as to ask for prayers,–and Hugh Williamson was anxious because the convention had no money to pay a good reverend! As young men stumbled all over themselves, the proceedings were quietly adjourned for the day by George Washington, with courtly bow to Dr. Franklin, who nodded and smiled in response. What most students overlook is that Dr. Franklin’s speech . . .  was itself a most eloquent and beautiful appeal to nature’s God. The prayer was answered, and very shortly, as Dr. Franklin presented the Great Compromise to the Philadelphia Convention on July 5, 1787." — From Graham’s Principles of Confederacy, pp. 531-533.

"The circumstances surrounding the speech of Dr. Franklin, and the words he spoke, are set forth in a number of places, but the best accounts can be found in 5 Elliot’s Debates 253-255, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​274&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed005176%29%29%3A%230050145&​linkText=1; Tansill’s Documents 295-297; 1 Ferrand’s Records 450-452, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​001/​llfr001.db&​recNum=​479&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0012%29%29%230010003&​linkText=1 (Madison’s Notes, June 28, 1787); and 3 Ferrand’s Records 467-473, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​003/​llfr003.db&​recNum=​470&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0032%29%29%230030003&​linkText=1 (Letter of William Steele to his son, Jonathan D. Steele, September 1825, recapitulating the account of Jonathan Dayton)." — From Principles of Confederacy, p. 564, endnote 17. [hyperlinks added and punctuation changed]

2URL: ./0_2_0_Art_I_Sec_1-7.htm​#Art1Sec2Cl3.

3"Before 1895, the Court’s precedent suggested that only taxes on real estate and poll (or capitation) taxes were direct taxes subject to the requirement of apportionment. In Pollock v. Farmers’ Loan & Trust Co. (1895) [Pollock], however, the Court struck down the Income Tax Act of 1894 as an unapportioned direct tax because it taxed income that derived from real estate and personal property. This opinion ultimately prompted the 1913 adoption of the Sixteenth Amendment, giving Congress the power to impose income taxes without apportionment." — The Oxford Companion to the Supreme Court of the United States, p. 303, "Fiscal and Monetary Powers", by James May.

The crucial issue here might not be whether a tax is direct or indirect, but whether it is apportioned or "uniform". The form of taxation was evidently linked in the minds of the framers with the type of representation. As Jefferson put it, "[T]he people are not to be taxed but by representatives chosen immediately by themselves." (Selected Writings of Thomas Jefferson, p. 404, a letter to James Madison dated December 20, 1787). The Senate was designed originally to be composed of people who represented their respective States. The House of Representatives was originally designed to be elected through capitation and apportionment, so that they were immediate representatives of their constituents. In the case of Representatives, taxes would be collected through capitation and apportionment by each respective Representative. In the case of the Senate, a bill would be given to each Senator, and the bill would be the same, "uniform", for each State. — When Alexander Hamilton became the first Secretary of the Treasury, he collected revenues primarily through customs agencies that he created. The whole concept of revenue collection through representation was thereby sidestepped for most of the rest of American history.

4See Maxims of the Global Covenant.

5This is probable because the distinctions between law and equity were well known then, and were even recorded in the Constitution itself (See Article III § 2, URL: ./0_4_1_0_0_Art_III_Sec_2_Cl_1_(Intro).htm​#LawEquity.). In modern America, the distinctions between law and equity have become blurred, especially with the help of modifications to due process entailed in things like the Federal Rules of Civil Procedure. Though there may be some distinctions with respect to details, the basic impetus behind this Article III § 2 "Law" is the same as the impetus behind what we’re calling the jural compact, and the basic impetus behind this Article III § 2 "Equity" is the same as the impetus behind what we’re calling the ecclesiastical compact. — In other words "Law" in 18th century Anglo-American jurisprudence dealt primarily with gross and subtle delicts; and "Equity" dealt primarily (though not absolutely and rigorously) with contracts. See Article III § 2 cl 1, URL: ./0_4_1_0_0_Art_III_Sec_2_Cl_1_(Intro).htm​#LawEquity, for more on this.

6Compare consent with consent.

7See (i)"TwoConsents" on this page, URL: #TwoConsents, and (ii)Preface, URL: ./#TwoTypesOfConsent.

8See Articles of Confederation, Article III, URL: http://www.law.ou.edu/​hist/​artconf.html. It’s absolutely critical to understand that the Articles of Confederation have been incorporated into the Statutes-at-Large, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llsl&​fileName=​001/​llsl001.db&​recNum=127, and are therefore American positive law, even if in some ways superseded.

9See Articles of Confederation, Article VIII, URL: http://www.law.ou.edu/​hist/​artconf.html. It’s absolutely critical to understand that the Articles of Confederation have been incorporated into the Statutes-at-Large, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llsl&​fileName=​001/​llsl001.db&​recNum=127, and are therefore American positive law, even if in some ways superseded.

10"The debates in Philadelphia immediately relevant to the Common Defence and General Welfare Clause in Article I, Section 8 can be traced in 1 Elliot’s Debates . . .  253-254, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​001/​lled001.db&​recNum=​268&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed0011%29%29%230010001&​linkText=1, 264, 283, 284, 300; 2 Ferrand’s Records 176, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​002/​llfr002.db&​recNum=​181&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1, 352, 408, 493, 495, 569, 594, 555 (Journal, August 6, 21 and 25, September 4, 10, 12, and 17, 1787); 5 Elliot’s Debates 378, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​399&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed0051%29%29%230050001&​linkText=1, 451, 475-477, 506, 507, 536, 560; Tansill’s Documents 475, 580-581, 614-616, 659-660, 561, 706; 2 Ferrand’s Records 181, URL: http://memory.loc.gov/​cgi-bin/​ampage?​collId=​llfr&​fileName=​002/​llfr002.db&​recNum=​186&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1, 355-356, 412-414, 497, 499, 569, 594, 655 (Madison’s Notes, August 6, 21, and 25, September 4, 10, 12, and 17, 1787)." — Principles of Confederacy, p. 320, endnote #2. [hyperlinks added and punctuation changed]

11Principles of Confederacy, p. 320.

12Carson’s Basic History of the United States, Vol. 5, pp. 61-62, quoting Henry Steele Commager, Documents of American History, vol. II, p. 326.

13Carson’s Basic History of the United States, Vol. 5, pp. 61-62, quoting James D. Richardson, A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, 1897), pp. 569-70.

14"The Social Security program, begun in 1935, was the first of the social ‘entitlement’ programs of national scope—the foundation stone of the modern national welfare system." — The Oxford Companion to the Supreme Court of the United States, pp. 284-285, "Federalism", by Harry N. Scheiber.

15Carson’s Basic History of the United States, Vol. 5, pp. 61-62.

16See Article II § 2, URL: ./0_3_Art_II.htm​#AdministrativeProvinces.

17"Montesquieu taught that an extensive territory can be governed by a strong autocracy, but there is an alternative, which, if rightly constructed, can capture the benefits of both centralized and diversified government, viz., a well conceived association of states called a confederate republic, . . . . The notion so fascinated Hamilton that he jettisoned the imperial design he had proposed in Philadelphia, and in the Federalist he quoted at length from a translation of Montesquieu as describing principles which underlie the United States Constitution, including the precept that a confederacy of this kind ‘may be dissolved, and the confederates preserve their sovereignty.’ " — Principles of Confederacy, p. 51. Graham is here quoting Hamilton’s "Federalist Paper" #9 (See The Federalist Papers, p. 75.) — Also see Montesquieu’s Spirit of Laws, URL: http://www.constitution.org/​cm/​sol.htm.

18Whether it’s a "republic" or not depends entirely upon how "republic" is defined. In Anglo-American jurisprudence, it has never been defined with rigor. Here, we adhere to the standards set by the global covenant. So our definition of "republic" is rigorous. A prerequisite to the existence of a republic is the "consent of the governed". Another prerequisite is recognition of the radical distinction between jural and ecclesiastical compacts. The equation of "majority rule" with consent ignores the fact that majorities are imminently capable of committing bloodshed, thereby violating the consent that is foundational to our definition of "republic". So the equation of "republic" with a monolithic "democracy" is an inherently flawed and inadequate definition. — We mark our special concept typographically: republic.

19See Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#GreatDepressionCause.

20Carson’s Basic History of the United States, Vol. 5, p. 81.

21Carson’s Basic History of the United States, Vol. 5, p. 81.

22Find this quote in the online opinion via Schechter in "Cited Cases", and via a find in the opinion on "Extraordinary".

23The Oxford Companion to the Supreme Court of the United States, p. 757, "Schechter Poultry Corp. v. United States", by C. Herman Pritchett.

24Carson’s Basic History of the United States, Vol. 5, p. 88.

25Carson’s Basic History of the United States, Vol. 5, p. 89.

26Even more profoundly than the Commerce Clause, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#Article1Sec8Cl3, it has been fiat money and fractional reserve banking. Because money and banking are so poorly understood by the legal profession, the judiciary, and politicians in general, adequately addressing these issues requires another book aimed specifically at them. Happily, such a book already exists. We heartily recommend The Creature from Jekyll Island.

27The Oxford Companion to the Supreme Court of the United States, p. 335, "General Welfare", by William Lasser.

28The Oxford Companion to the Supreme Court of the United States, p. 335, "General Welfare", by William Lasser.

29For a brief but more thorough treatment of the history of American "money", see "Memorandum of Law: The Money Issue", URL: http://home.hiwaay.net/​~becraft/​MONEYbrief.html. For a very thorough and understandable treatment of money and banking, see The Creature from Jekyll Island.

30The Oxford Companion to the Supreme Court of the United States, pp. 10-11, "Administrative State", by Nicholas S. Zeppos.

31The Oxford Companion to the Supreme Court of the United States, pp. 10-11, "Administrative State", by Nicholas S. Zeppos.

32See Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#GreatDepressionCause.

33"Hamilton was not only a monarchist, but for a monarchy bottomed on corruption. In proof of this, I will relate an anecdote, for the truth of which I attest the God who made me. . . .  Some occasion for consultation arising, I [(as Secretary of State)] invited [Secretary of Treasury Hamilton, Secretary of War Knox, Vice President Adams, and Attorney General Randolph] to dine with me, in order to confer on the subject. After . . .  our question agreed and dismissed, conversation began on . . .  the British constitution, on which Mr. Adams observed, ‘purge that constitution of its corruption, and give to its popular branch equality of representation, and it would be the most perfect constitution ever devised by the wit of man.’ Hamilton paused and said, ‘purge it of its corruption, and give to its popular branch equality of representation, and it would become an impracticable government: as it stands at present, with all its supposed defects, it is the most perfect government which ever existed.’" — Selected Writings of Thomas Jefferson, p. 117, "The Anas".

34The Oxford Companion to the Supreme Court of the United States, p. 14, "Administrative State", by Nicholas S. Zeppos.

35The Oxford Companion to the Supreme Court of the United States, pp. 14-15, "Administrative State", by Nicholas S. Zeppos.

36See URL: ./0_8_0_Am_I_(Intro_-_Orig_Intent).htm​#AmendI and URL: ./0_A_0_Am_V_(Intro).htm​#FifthAm, respectively.

 
 
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