From: Jim Choate <ravage@ssz.com>
Date: Mon, 5 Feb 1996 16:24:15 +0800
To: cypherpunks@toad.com
Subject: Question of Congressional Lawmaking Power (fwd)
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>From owner-ctlug@ssz.com Mon Feb  5 01:59:09 1996
From: Jim Choate <ravage@ssz.com>
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Subject: Question of Congressional Lawmaking Power
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Date: Mon, 5 Feb 1996 01:59:02 -0600 (CST)
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Hi all,

To those with no interest I apologize. To those who were at the meeting this
evening discussing the limitations of Congress and the purported 'elastic
clause', this is what I found:


---------------------------------------------------------------------------
  
				ARTICLE I. 
 
	[Powers of Congress.] 
 
Section 8.  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; 
	To borrow Money on the credit of the United States; 
	To regulate Commerce with foreign Nations, and among the several 
States, and with the Indian Tribes; 
	To establish a uniform Rule of Naturalization, and uniform Laws 
on the subject of Bankruptcies throughout the United States; 
	To coin Money, regulate the Value thereof, and of foreign Coin, 
and fix the Standard of Weights and Measures; 
	To provide for the Punishment of counterfeiting the Securities 
and common Coin of the United States; 
	To establish Post Offices and post Roads; 
	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; 
	To constitute Tribunals inferior to the Supreme Court; 
	To define and punish Piracies and Felonies committed on the high 
Seas, and Offences against the Law of Nations; 
	To declare War, grant Letters of Marque and Reprisal, and make 
Rules concerning Captures on Land and Water; 
	To raise and support Armies, but no Appropriation of Money to 
Use shall be for a longer Term than two Years; 
	To provide and maintain a Navy; 
	To make Rules for the Government and Regulation of the land and 
naval forces; 
	To provide for calling forth the Militia to execute the Laws of 
the Union, suppress Insurrections and repel Invasions; 
	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 and Militia according to 
the discipline prescribed by Congress; 
	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 
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 
	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. 

---------------------------------------------------------------------------

I believe that the section that was refered to is the last sentence
regarding the making of all laws necessary for carrying out the powers
detailed here and elsewhere in the Constitution. This article clearly states
that it is not an open ended empowerment. It covers only those items
specificaly covered in the body of the Constitution. At the time it was
written it was clear that the founding fathers did not want a federal
government which was not hampered or constrained in its ability to pass laws
and carry out duties. If a court or body makes the assertion that this
article empowers Congress to make any law then they are sadly misinformed
and possibly intentionaly misrepresenting the intent of the founding fathers
and the limitations on Congress placed there by them.

This article no more authorized (for example) the creation of the DEA, FDA,
or EPA than it authorizes them to take property without just compensation.
If this was taught you either through a textbook or a public school then
feel cheated and lied to, you were (possibly with premeditation).

---------------------------------------------------------------------------

And in regards to the limitation of federal lawmaking and questions of
jurisdiction covered in the 10 amendments...

----------------------------------------------------------------------------

 
				ARTICLE IX. 
 
	The enumeration of the Constitution, of certain rights, shall 
not be construed to deny or disparage others retained by the people. 
 
 
 
				ARTICLE X. 
 
	The powers not delegated to the United States by the Constitution, 
nor prohibited by it to the States, are reserved to the States respectively, 
or to the people. 
 
------------------------------------------------------------------------------

The intent is clear. If there is a question of jurisdiction then it will
ALWAYS fall to the states or the people, and NEVER to the federal
government. In short, the federal government and the Supreme Court are not
and were never intended to be the last word on anything in this country. The
10th clearly leaves that to the states and the people.

Neither of these Amendments have been tested or used in a court in this
country for 200 years. This is a telling tale. The courts and legislative
bodies (as well as any reasonable person) will see immediately that the
federal government has usurped powers and duties not theirs to execute short
of a constitutional amendment. This not only includes laws allowing the
seizing of private property for public use without just compensation
(irrespective of the source of that private property) but drug laws, food
regulation laws, environmental laws, etc. The last time Congress acted in a
constitutional manner regarding this was the amendments dealing with
prohibition and its repeal. Since that time Congress and the courts have
taken powers reserved for the states and the people and acted upon them
without authorization. In short the Congress of the US has acted in a manner
assuming exemption from constitutional limitations since the late 20's. What
this country needs is a legal test of both the 9th and 10th amendments.

Questions regarding Internet and free speech are immediately resolved as
non-issues on the federal level. It also makes jurisdictional extensions
such as Tennessee arresting and prosecuting a person in California for
downloading files (whatever they might contain) a non sequitar unless money
is exchanged (in which case Congress may tax it, not prohibit it). It also
clearly prohibits outside entities such as Germany from prosecuting anyone
in the US for their actions on the Internet. If Germany wishes to constrain
the content of Internet that is fine. It is between Germany and its people.
Another example is gun ownership. It is not a federal issue. It is a state
issue and should be resolved on a state by state level. Congress has no more
authority vested by the Constitution to limit a persons ownership of a
water pistol or a atom bomb, and this is the way it should be. The issue is
one of a state level unless Congress wishes to propose a constitutional
amendment changing or revoking the 2nd. (again as it should be).

I personaly refuse to support any political party which does not support and
intend on testing both of these amendments. At this time there is not one
political party (even the Libertarian) who will touch this issue. I strongly
suggest that you demand support for these two amendments from any legislator
that you might support.


                                                  Jim Choate
                                                  ravage@ssz.com