| "The constitution was
ordained and established by the people of the United
States for themselves, for their own government, and not
for the government of the individual states… This court,
therefore, has no jurisdiction of the cause, and it is
dismissed." — U.S. supreme court,
Barron v. Baltimore (1833) |
Summary: The anger is palpable amongst
property rights proponents throughout America. The U.S.
Supreme Court has refused to protect citizens from having
their property stolen (i.e. confiscated) for frivolous
reasons. But is the indignation over this decision focused in
the right direction?
Topics:
1. "The Supremes" Leave this
Particular Issue to States
2. Should Feds
Enforce Bill of Rights over States?
3. How Could
Rights be (constitutionally) Secured from States?
Conclusion: Point Your Finger in the Right Direction
1. "The
Supremes" Leave this Particular Issue to States
Let's set aside the convoluted rationale used
by the majority of supreme courtiers for a moment. What
precisely did the
Kelo v. City of New London decision do? In a
nutshell, the federal government is not going to interfere
much with a state's decision to confiscate, or not confiscate,
private property. According to the majority opinion,
"This Court's authority, however, extends
only to determining whether the City's proposed
condemnations are for a ‘public use' within the meaning of
the Fifth Amendment to the Federal Constitution. Because
over a century of our case law interpreting that provision
dictates an affirmative answer to that question, we may not
grant petitioners the relief that they seek." (pages 19-20)
Ok, the opinion did go on to give all sorts of
reasons as to why property confiscation is acceptable behavior
under the federal constitution (example: most forms of
government theft apparently do not violate the "takings
clause"). But if the states have sweeping confiscation powers,
the opinions of these judges are really only important as they
relate to federal confiscation schemes — which the supreme
court has essentially given a wink and nod to for years.
Top
2. Should Feds Enforce Bill
of Rights over States?
Let's get straight to the point. We can all
agree that the Bill of Rights was intended to curtail the
power of the founders' new federal government. But was it
likewise intended to curtail the powers of the various states?
Take a look at the
first 12 articles recommended for the Bill of Rights,
presented by James Madison to congress. The third article is
today's first article — covering the restriction on congress
to not meddle in the right of free speech or the press.
Now, consider James Madison's speech, wherein
he proposed amendments to these twelve articles. In it, he
clearly intended to add two clauses to the Bill of Rights that
specifically placed restrictions on the states. These
restrictions already existed, or were already proposed, with
regard to the federal government (i.e. bill of attainder, ex
post facto law, freedom of speech, and trial by jury).
In fact, these two clauses appear to be the
only amendments congress utterly rejected from Madison's
proposals. Madison was no idiot. He recognized clearly that
the Bill of Rights were restrictions on the federal government
and not on the states. From
Madison's speech:
"I wish also, in revising the constitution,
we may throw into that section, which interdict the abuse of
certain powers in the State Legislatures, some other
provisions of equal, if not greater importance than those
already made. The words, 'No State shall pass any bill of
attainder, ex post facto law,' &c. were wise and proper
restrictions in the constitution. I think there is more
danger of those powers being abused by the State Governments
than by the Government of the United States. The same
may be said of other powers which they possess, if not
controlled by the general principle, that laws are
unconstitutional which infringe the rights of the community.
I should therefore wish to extend this interdiction, and
add, as I have stated in the 5th resolution, that no State
shall violate the equal right of conscience, freedom of the
press, or trial by jury in criminal cases; because it is
proper that every Government should be disarmed of powers
which trench upon those particular rights. I know, in
some of the State constitutions, the power of the Government
is controlled by such a declaration; but others are not. I
cannot see any reason against obtaining even a double
security on those points; and nothing can give a more
sincere proof of the attachment of those who opposed this
constitution to these great and important rights, than to
see them join in obtaining the security I have now proposed;
because it must be admitted, on all hands, that the State
Governments are as liable to attack the invaluable
privileges as the General Government is, and therefore ought
to be as cautiously guarded against." [bold added]
The concept that the Bill of Rights was
designed to curtail federal power was clearly understood years
later. In 1833, another citizen sought redress from the
supreme court against the city of Baltimore, which had
apparently destroyed his property in a more roundabout
fashion. Read a portion of the majority opinion in
Barron v. City of Baltimore (just read the bold if you
are short on time):
"The constitution was ordained and
established by the people of the United States for
themselves, for their own government, and not for the
government of the individual states. Each state
established a constitution for itself, and in that
constitution, provided such limitations and restrictions on
the powers of its particular government, as its judgment
dictated. The people of the United States framed such a
government for the United States as they supposed best
adapted to their situation and best calculated to promote
their interests. The powers they conferred on this
government were to be exercised by itself; and the
limitations on power, if expressed in general terms, are
naturally, and, we think, necessarily, applicable to the
government created by the instrument. They are limitations
of power granted in the instrument itself; not of distinct
governments, framed by different persons and for different
purposes.
"If these propositions be correct, the fifth
amendment must be understood as restraining the power of the
general government, not as applicable to the states. In
their several constitutions, they have imposed such
restrictions on their respective [32 U.S. 243, 248]
governments, as their own wisdom suggested; such as they
deemed most proper for themselves. It is a subject on which
they judge exclusively, and with which others interfere no
further than they are supposed to have a common interest.
"The counsel for the plaintiff in error
insists, that the constitution was intended to secure the
people of the several states against the undue exercise of
power by their respective state governments; as well as
against that which might be attempted by their general
government. It support of this argument he relies on the
inhibitions contained in the tenth section of the first
article. We think, that section affords a strong, if not a
conclusive, argument in support of the opinion already
indicated by the court. The preceding section contains
restrictions which are obviously intended for the exclusive
purpose of restraining the exercise of power by the
departments of the general government. Some of them use
language applicable only to congress; others are expressed
in general terms. The third clause, for example, declares,
that 'no bill of attainder or ex post facto law shall be
passed.' No language can be more general; yet the
demonstration is complete, that it applies solely to the
government of the United States. In addition to the general
arguments furnished by the instrument itself, some of which
have been already suggested, the succeeding section, the
avowed purpose of which is to restrain state legislation,
contains in terms the very prohibition. It declares, that
'no state shall pass any bill of attainder or ex post facto
law.' This provision, then, of the ninth section, however
comprehensive its language, contains no restriction on state
legislation.
"The ninth section having enumerated, in the
nature of a bill of rights, the limitations intended to be
imposed on the powers of the general government, the tenth
proceeds to enumerate those which were to operate on the
state legislatures. These restrictions are brought together
in the same section, and are by express words applied to the
states. 'No state shall enter into any treaty,' &c.
Perceiving, that in a constitution framed by the people of
the United States, for the government of all, no limitation
of the action of government on [32 U.S. 243, 249] the people
would apply to the state government, unless expressed in
terms, the restrictions contained in the tenth section are
in direct words so applied to the states.
"It is worthy of remark, too, that these
inhibitions generally restrain state legislation on subjects
intrusted to the general government, or in which the people
of all the states feel an interest. A state is forbidden to
enter into any treaty, alliance or confederation. If these
compacts are with foreign nations, they interfere with the
treaty-making power, which is conferred entirely on the
general government; if with each other, for political
purposes, they can scarcely fail to interfere with the
general purpose and intent of the constitution. To grant
letters of marque and reprisal, would lead directly to war;
the power of declaring which is expressly given to congress.
To coin money is also the exercise of a power conferred on
congress. It would be tedious to recapitulate the several
limitations on the powers of the states which are contained
in this section. They will be found, generally, to restrain
state legislation on subjects intrusted to the government of
the Union, in which the citizens of all the states are
interested. In these alone, were the whole people concerned.
The question of their application to states is not left to
construction. It is averred in positive words.
"If the original constitution, in the ninth
and tenth sections of the first article, draws this plain
and marked line of discrimination between the limitations it
imposes on the powers of the general government, and on
those of the state; if, in every inhibition intended to act
on state power, words are employed, which directly express
that intent; some strong reason must be assigned for
departing from this safe and judicious course, in framing
the amendments, before that departure can be assumed. We
search in vain for that reason.
"Had the people of the several states, or any
of them, required changes in their constitutions; had they
required additional safe-guards to liberty from the
apprehended encroachments of their particular governments;
the remedy was in their own hands, and could have been
applied by themselves. A [32 U.S. 243, 250] convention could
have been assembled by the discontented state, and the
required improvements could have been made by itself. The
unwieldy and cumbrous machinery of procuring a
recommendation from two-thirds of congress, and the assent
of three-fourths of their sister states, could never have
occurred to any human being, as a mode of doing that which
might be effected by the state itself. Had the framers of
these amendments intended them to be limitations on the
powers of the state governments, they would have imitated
the framers of the original constitution, and have expressed
that intention. Had congress engaged in the extraordinary
occupation of improving the constitutions of the several
states, by affording the people additional protection from
the exercise of power by their own governments, in matters
which concerned themselves alone, they would have declared
this purpose in plain and intelligible language.
"But it is universally understood, it is a
part of the history of the day, that the great revolution
which established the constitution of the United States, was
not effected without immense opposition. Serious fears were
extensively entertained, that those powers which the patriot
statesmen, who then watched over the interests of our
country, deemed essential to union, and to the attainment of
those unvaluable objects for which union was sought, might
be exercised in a manner dangerous to liberty. In almost
every convention by which the constitution was adopted,
amendments to guard against the abuse of power were
recommended. These amendments demanded security against the
apprehended encroachments of the general government-not
against those of the local governments. In compliance with a
sentiment thus generally expressed, to quiet fears thus
extensively entertained, amendments were proposed by the
required majority in congress, and adopted by the states.
These amendments contain no expression indicating an
intention to apply them to the state governments. This court
cannot so apply them.
"We are of opinion, that the provision in the
fifth amendment to the constitution, declaring that private
property shall not be taken for public use, without just
compensation, is intended solely as a limitation on the
exercise of power by the [32 U.S. 243, 251] government of
the United States, and is not applicable to the legislation
of the states. We are, therefore, of opinion, that there is
no repugnancy between the several acts of the general
assembly of Maryland, given in evidence by the defendants at
the trial of this cause, in the court of that state, and the
constitution of the United States. This court, therefore,
has no jurisdiction of the cause, and it is dismissed."
This entire decision presents a fascinating
look into the minds of those who better understood the checks
and balances purposely designed to curtail the explosive
federal leviathan we suffer under today. It appears to have
retained some limited force even after the "Civil War" — when
the federal government assumed new powers in order to destroy
state sovereignty and federalism. But these opinions were
eroded in recent decades as the federal government grew to
assume power over every aspect of our lives.
In the
Kelo decision, for instance, judge Stevens is
comfortable making the argument that the Fourteenth Amendment,
passed after the "Civil War" (on July 9, 1868), makes the
entire Bill of Rights applicable to the states (see page 1 —
he simply references an 1897 supreme court decision).
Is judge Stevens correct? Did the passage of
the Fourteenth Amendment make all the restrictions in the Bill
of Rights suddenly apply to the states? Consider a few words
from the same court in
Bartkus v. Illinois, 359 U.S. 121 (1959):
"Prior cases in this Court relating to
successive state and federal prosecutions have been
concerned with the Fifth Amendment, and the scope of its
proscription of second prosecutions by the Federal
Government, not with the Fourteenth Amendment's effect on
state action. We are now called upon to draw on the
considerations which have guided the Court in applying the
limitations of the Fourteenth Amendment on state powers.
We have held from the beginning and uniformly that the Due
Process Clause of the Fourteenth Amendment does not apply to
the States any of the provisions of the first eight
amendments as such. The relevant historical materials have
been canvassed by this Court and by legal scholars. These
materials demonstrate conclusively that Congress and the
members of the legislatures of the ratifying States did not
contemplate that the Fourteenth Amendment was a short-hand
incorporation of the first eight amendments making them
applicable as explicit restrictions upon the States.
"Evidencing the interpretation by both
Congress and the States of the Fourteenth Amendment is a
comparison of the constitutions of the ratifying States with
the Federal [359 U.S. 121, 125] Constitution. Having regard
only to the grand jury guarantee of the Fifth Amendment, the
criminal jury guarantee of the Sixth Amendment, and the
civil jury guarantee of the Seventh Amendment, it is
apparent that if the first eight amendments were being
applied verbatim to the States, ten of the thirty ratifying
States would have impliedly been imposing upon themselves
constitutional requirements on vital issues of state
policies contrary to those present in their own
constitutions. Or, to approach the matter in a different
way, they would be covertly altering provisions of their own
constitutions in disregard of the amendment procedures
required by those constitutions. Five other States would
have been undertaking procedures not in conflict with but
not required by their constitutions. Thus only one-half, or
fifteen, of the ratifying States had constitutions in
explicit accord with these provisions of the Fifth, Sixth,
and Seventh Amendments. Of these fifteen, four made
alterations in their constitutions by 1875 which brought
them into important conflict with one or more of these
provisions of the Federal Constitution. One of the States
whose constitution had not included any provision on one of
the three procedures under investigation adopted a provision
in 1890 which was inconsistent with the Federal
Constitution. And so by 1890 only eleven of the thirty
ratifying States were in explicit accord with these
provisions of the first eight amendments to the Federal
Constitution. Four were silent as to one or more of the
provisions and fifteen were in open conflict with these same
provisions. [359 U.S. 121, 126]
"Similarly imposing evidence of the
understanding of the Due Process Clause is supplied by the
history of the admission of the twelve States entering the
Union after the ratification of the Fourteenth Amendment. In
the case of each, Congress required that the State's
constitution be ‘not repugnant' to the Constitution of the
United States. Not one of the constitutions of the twelve
States contains all three of the procedures relating to
grand jury, criminal jury, and civil jury. In fact all
twelve have provisions obviously different from the
requirements of the Fifth, Sixth, or Seventh Amendments. And
yet, in the case of each admission, either the President of
the United States, or Congress, or both have found that the
constitution was in conformity with the Enabling Act and the
Constitution of the United States. Nor is there warrant to
believe that the States in adopting constitutions with the
specific purpose of complying with the requisites of
admission were in fact evading the demands of the
Constitution of the United States.
"Surely this compels the conclusion that
Congress and the States have always believed that the Due
Process Clause brought into play a basis of restrictions
upon the States other than the undisclosed incorporation of
the original eight amendments…
"Some recent suggestions that the
Constitution was in reality a deft device for establishing a
centralized government are not only without factual
justification but fly in the face of history. It has more
accurately been shown that the men who wrote the
Constitution as well as the citizens of the member States of
the Confederation were fearful of the power of centralized
government and sought to limit its power. Mr. Justice
Brandeis has written that separation of powers was adopted
in the Constitution ‘not to promote efficiency but to
preclude the exercise of arbitrary power.' Time has not
lessened the concern of the Founders in devising a federal
system which would likewise be a safeguard against arbitrary
government. [359 U.S. 121, 138] The greatest self-restraint
is necessary when that federal system yields results with
which a court is in little sympathy."
From these statements, one fact is evident: As
the federal monster has grown, the intent of those who created
it was destroyed and supplanted with a new rationale and
motive.
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3. How Could Rights be
(constitutionally) Secured from States?
The original intent of the federal constitution
was to allow sovereign states to remain that way. States
surrendered only those powers specifically enumerated in the
federal constitution. States, for example, continued to fund
and endorse specific religions (many did so years after
ratifying the federal constitution). States could even
continue to subject other human beings to the injustices of
slavery.
Did states have a right to do
these things? Of course not. No government, majority, or
person has a right to stomp on rights our Creator granted to
each of us. As James Madison warned:
"There is no maxim in my opinion which is
more liable to be misapplied, and which therefore needs
elucidation than the current one that the interest of the
majority is the political standard of right and wrong.... In
fact it is only reestablishing under another name a more
specious form, force as the measure of right...." — James
Madison, letter to James Monroe, October 5, 1786 (see The
Founders Almanac, by Matthew Spalding, The Heritage
Foundation, 2002, p. 177)
The federal government, however, was
powerless to interfere in state matters. Why? Because the
states and people did not grant the federal government any
such authority in the constitution that created it.
So, how could the people, who are the ultimate
sovereigns, reign in a renegade state government? The answer
was simple: They could reform or destroy it — all without
federal interference.
If a state or local government was stealing
property, any sovereign citizen would be within his right (and
still is frankly) to defend his property by shooting the
thieves. The theory goes that, so long as the conflict did not
spill over to other states or involve other nations, those
involved could carry on their activities without insertions
from the FBI, CIA, or ATF.
In this way, the individual was the ultimate
sovereign, his natural rights were pre-eminent, and he was at
complete liberty to support or attack his immediate
government. If an individual state was grieved, and it didn't
enjoy a majority or two-thirds majority of states on its side,
its only real recourse was to endure the grievance or leave
the federal union (until the "Civil War"). But if the
individual of a state is grieved by the state, and he did not
enjoy a majority or super-majority on his side, he could
endure, leave, or go directly to war against the state.
This is a frightening concept today. The
thought of leaving it up to the individual to determine what
his natural rights are, and when he should violently rebel to
protect them, is a course of thought entirely unknown and
repulsive to our current, effeminate culture.
But, like it or not, this brand of federalism
once existed, and was a lot like the free market: full of risk
at the state and local level. The federal constitution could
perhaps be better viewed as a detailed treaty or pact between
separate nations — and each nation-state was to remain a
sovereign, independent entity.
Note: Some also point to
Article 4, Section 4 of the federal constitution as
evidence of federal power over the government structure and
activities of each state: "The United States shall guarantee
to every State in this Union a Republican Form of Government,
and shall protect each of them against Invasion; and on
Application of the Legislature, or of the Executive (when the
Legislature cannot be convened) against domestic Violence."
However, this statement appears to mean the following: "The
United States shall guarantee to every State in this Union
that the federal government will remain a Republican Form of
Government."
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Conclusion: Point Your Finger in the Right
Direction
The problem with the
Kelo decision is not that states now have more power
to determine whether or not they will pursue property
confiscation. They had that power (and more) before and after
they ratified the federal constitution. The problem is that
these nine federal courtiers selectively exercise other powers
over the states that they were never granted. They are enabled
to do so by the federal congress, president, the
not-so-sovereign state governments, and those around us who
have been conditioned to accept it.
Why be angry over a few judges who rearrange
the deck chairs of the sinking ship in a manner that does not
suit us? Why continue to throw our hopes and resources at
their corrupt, robed feet?
Instead, let us turn our anger to the fact that
we lost our Republic long ago. Let us realize that it has been
many years since we possessed a limited federal government,
sovereign states, and individuals with ultimate power and
authority.
Were the sovereign citizens of Connecticut to
rightfully stand up and kill those who came to steal their
property under the pretense of state or local government,
these robed federal tyrants and their cohorts in congress
would quickly send in armies of soldiers and bureaucrats to
destroy them. That sad fact is far more worthy of our
indignation and attention.
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