Under the Tower of Babel
Copyright ©1995 by Dean Isaacson : All rights reserved - ISBN 1-887008-00-4
Chapter Eleven :: Solutions Within The States Rights Movement
Our best protection against bigger government in Washington is better government in the States.[1]
The landslide re election of President Franklin Roosevelt in 1936 was a serious setback to the Supreme Court. Coupled with the looming threat that his court packing scheme[2] might pass Congress, the Supreme Court began to double back on their anti New Deal decisions. Since that time, the Court has done little to restrict the taxing and spending powers of the federal government.
Upon re inauguration Franklin Roosevelt said, "I see one third of a nation ill housed, ill clad, ill nourished."[3] Thus he set the agenda for legislation by crisis that continues to this day. However, it became soon apparent that this nation did not have the financial resources to promote every individual and family out of poverty and into the middle class.
Rather than reassess the economy from the perspective of individual responsibility, the lawmakers have chosen to place that obligation more and more upon the States. This kills two birds with one stone, if you will. The congressmen are still empowered to champion the causes of the underprivileged during the election cycle, but are not held accountable for producing the funds necessary to accomplish their goals. Their designs are accomplished by mandating to the lower government bodies and by trampling entrepreneurial freedoms.
Conference of the States A Dangerous Plan
These continual encroachments upon the sovereignty of the people and the local jurisdictions are fostering a growing unrest toward the federal government. In 1991, the city of Columbus, Ohio tried to pave a parking lot. They were told by the EPA that they would have to spend $2.1 million to clean it up because some paint solvent was found in the soil. The tests conducted showed that the solvent created no danger. So the city's environmental health director became upset with the EPA's overweening and did the nation's first study on the costs of federal mandates.
Between 1991 and 1995 the yearly cost to the city rose from $60 million to $100 million. The State of Ohio's cost rose from $150 million to $400 million between 1992 and 1995.[4] People are becoming upset about the federal mandates being placed upon State and local governments by Washington DC. This is real money, local money and it strips the communities of their ability to satisfy local needs.
This has been a growing problem for State and local governments. Even the establishment news media is finally calling attention to the inequities of mandating without funding. However, little attention has been focused on the unconstitutionality of the mandates themselves, regardless of funding.
It is obvious we have a constitutional problem that needs to be addressed. Throughout the last three decades there have been numerous calls for a Constitutional Convention. However, it has become well known that there are those who are anxious for such a convention that would allow them to restructure our government's foundation. Because of this danger most people are convinced that it would be better to plod through the mire than risk tampering with our Constitution.
Now the call has gone out, apparently from conservative circles, for a Conference of the States. The rallying cry is centered upon unfunded mandates and the potential of passing federal budget problems down to the States. The organizers view this as a danger to the 'balanced competition' of the various government bodies. They claim that local governments, "must step up to our constitutional obligation and compete for power in the federal system."[5]
This competition for power between the governments is sprinkled throughout the call. Clearly they are not aiming to solve a constitutional crisis because they do not see their roles as limited by constitutional enumeration. They are hoping to take advantage of the growing conservative movement and rising anti federalist sentiment. All they want is to gain their market share of unconstitutional authority.
One of the proposed outcomes of this convention will be, "a new instrument of American democracy called a States' Petition."[6] According to the organizers a States' Petition would have no force of law or binding authority. However, they admit that its authority would be from the "sheer power of the process."[7] It is their hope that this 'sheer power' would be enough to make Congress take notice.
My question is simple. Did Congress take notice when the Confederate States seceded? Our Constitution has long ago been tossed in the dung heap. We are ruled by de facto autocrats.
If we believe that we can resort to any means peaceful to reassert that document to its proper authority, we too if victorious, are de facto. If the Conference of the States is successful, this will be at the expense of article 1, section 10.1 of the Constitution.[8] It is forbidden for the States to form an alliance of this sort.
If they are successful by 'sheer power' we will have a new de facto government. The problems will be the same. For these people do not happen to be lovers of the Constitution. The conference supporters have proposed several amendments and they also claim to be seeking "fundamental, long term, structural change."[9] Their intent is to modify it and to give States the power to revise it on a regular basis through a tool called "process amendments."
My claim that these people are no lovers of the Constitution is not unfounded. First, they have already acknowledged that their intent is to wrest their share of power from the feds, rather than to hold the feds accountable to the Constitution. Then they claim that, "No one is smart enough to assign specific programs and tasks to one level of government or the other, and make the system balance."[10] This is a direct assault upon the structure of the Constitution.
Our Constitution is not irrelevant, nor has it failed. We have failed. We have failed to maintain the separation of powers between the executive, legislative and judicial branches. Furthermore, we have failed to maintain the separation of powers between civil government, family, church, business and school.
There could be much more said to warn against the Conference of the States. Nonetheless, my final caveat is about their proposal to amend the tenth amendment. The supporters have proposed to insert a sentence, "stating that the courts have responsibility to adjudicate the boundaries between national and state authority."[11] Don't they know that the courts have no intention to award what is fair, much less constitutional? The courts recognize power, not law. They will award to the side that has proven to hold the most de facto authority.
Even if we could be assured of a sympathetic Court, what will protect us when the makeup of the bench should change? Will our nation be caught on that pendulum that will swing endlessly between State and national sovereignties? Furthermore, as these governments wrestle against and amongst themselves, will the people be caught hopelessly in the midst of ever encroaching tyrannies the fruit of this competition for power?
Judicial Resistance to States' Rights
We commonly quote Lincoln's paraphrase of the republic, that our government is "of the people, by the people and for the people." This is an extension of the "deriving their just powers from the consent of the governed" clause of the Declaration of Independence. Those who signed that document understood the principle that governments are instituted among men to secure their God given rights.[12] Within this context the most dominant jurisdiction is a local one, where the threat of danger and the responsibility for protection is most imminent.
The purpose of instituting the federal government was "to form a more perfect Union. . . provide for the common defense,"[13] and other such matters that the smaller States would be unable to accomplish independently. The Founding Fathers understood the necessity of a limited national government. That is why the Constitution is specific as to the limits of the grants of power.
The State is not an extension of the federal government. It is responsible for the protection of the people and their assets, from threats and oppression including an overweening national bureaucracy.
The checks and balances of the three fold republican construction have been torn down through judicial precedent and legislative activism. Power to the government is like blood to a dog; having tasted, it will stop at nothing to get more. Just short of reverting to outright fascism, our leaders have stripped us of about all the blood that we can put out. It does not know when it is a good time to stop, it just wants more and more.[14] It is time that the people put an end to federal tyranny and domination.
The only practical means to accomplish this is for the States to put their collective foot down and diminish the federal government to be the limited institution that it was designed to be. This means that States must put an end to federal agencies within their borders who are confiscating their peoples' assets and revenue.
This will not be an easy task. We can expect to find strong resistance from the federal courts. At the close of the Roosevelt Franklin presidency, the Supreme Court declared that, "The tenth amendment does not operate as a limitation upon the powers, expressed or implied, delegated to the national government."[15] The Court holds that the States cannot act to restrain an overweening federal bureaucracy. This is antithetical to the written word of the Constitution.
Furthermore, the federal government is acknowledged by the courts to have the ability to usurp State sovereignty through international treaties. The eminent law professor and court advocate, Laurence Tribe, wrote that, "Under the supremacy clause, it is indisputable that a valid treaty overrides any conflicting state law, even on matters otherwise within state control."[16] The "constitutionality" of both aspects rests solely upon precedent, as Tribe illustrates in his footnotes, and not upon the instrument of the Constitution itself.
Justice Oliver Wendell Holmes laid the foundation for the President to overcome States' rights through treaties that could not otherwise be accomplished through statute. In 1916, President Wilson entered into a treaty with Great Britain for the protection of several migratory bird species. The State of Missouri contended that US game wardens enforcing the Migratory Bird Treaty Act of 1918 was an unconstitutional interference of the tenth amendment.[17] Justice Holmes decided that,
It is said that a treaty cannot be valid if it infringes the Constitution, that there are limits. . . . Acts of Congress are the supreme law of the land only when made in pursuance of the Constitution, while treaties are declared to be so when made under the authority of the United States. We do not mean to imply that there are no qualifications to the treaty making power; but they must be ascertained in a different way. . . Here a national interest of very nearly the first magnitude is involved. It can be protected only by national action in concert with that of another power. . . . It is not sufficient to rely upon the States. The reliance is in vain, and were it otherwise, the question is whether the United States is forbidden to act. We are of the opinion that the treaty and the statute must be upheld.
You may notice that in typical Holmes' fashion, he got around the Constitution while upholding it at the same time. He affirmed that statutes must be made in pursuance to the Constitution but denied that treaties must be held to the same standard. Then he declared that an overarching 'national interest' could usurp local authority. Thus he allowed States' rights to be overrun by treaty, even if the provisions of that treaty do not stand up to constitutional mettle.
This set the standard for the courts until the 1950s when Senator Bricker led the effort to pass a constitutional amendment that would overrule Justice Holmes' opinion. The senator and his supporters wanted to make all treaties answerable to the Constitution. "The proponents feared not only that a treaty could enlarge federal power over the states, but that it could be self enforcing."[18]
In the early 1950s, widely voiced concerns that the treaty power was the Achilles' heel of the Constitution, that any and all constitutional limitations could be overridden via the international agreement route, spurred efforts to amend the Constitution. Justice Holmes' broad statements in Missouri v Holland proved popular and frequently quoted sources for those anxious to demonstrate the substantiality of the threat to constitutional restrictions. Moreover, the fears that generated popular support for the Bricker Amendment were fed by occasional arguments made in American courts that relied on United Nations provisions.[19]
In view of this, the Bricker Amendment included a provision that would nullify unconstitutional treaties and another that provided that federal powers could not be enlarged through treaties.[20] In other words, if Congress or the President are unable to make a law because of constitutional restraints, they cannot make a treaty to effectively overcome this hurdle. This amendment eventually died (1954) because it was unable to garner the two thirds majority vote necessary for a constitutional amendment. Several other amendments and measures were attempted in the following years.
Though the efforts to amend the Constitution failed, they were ultimately successful in turning the opinion of the Supreme Court. It is important to remember that no matter how avant garde the Court may appear to be, it has never been known to intentionally buck the political tide of popular opinion, as we illustrated earlier.[21] In 1957 Justice Black effectively reversed Justice Holmes' premise that treaties are not subordinate to the Constitution by stating that,
[It is] clear that the reason treaties were not limited to those made 'in pursuance' of the Constitution was so that agreements made by the United States under the Articles of Confederation [would] remain in effect. . . . It would be manifestly contrary to the objectives of those who created the Constitution, as well as those who were responsible for the Bill of Rights. . . . to construe Article VI as permitting the United States to exercise power under an international agreement without observing constitutional prohibitions.[22]
In other words, he clarified that the confusing syntax of article VI, section 2 of the Constitution was for the protection of treaties that were already made prior to the ratification of the Constitution. It would be contradictory to presume that the founders had meant for future treaties to usurp the document that they were writing. It would be absurd to conclude that they would allow an international agreement to annul the rights that they had just regained by blood. Justice Holmes cannot justify his position based upon the document nor the intent of the founders.
Along with the recent demise of the 'cold war,' the President and Congress appear to be consumed with treaty mania. Some of these documents are so large[23] that it is impossible for any of the lawmakers to read them. The bench is riddled with justices whose legal perspectives are antithetical to the Constitution and whose focus is upon a social justice that leads to socialistic ends.[24] This is why it is even more important to elect qualified statesmen, not career politicians, to represent us in Congress and State legislatures.
We need people who understand the Constitution and are willing to stand up for the rights of the individuals and States that are contained therein. However, in order for us to elect these qualified people, it is important to get a copy of the Constitution and the Declaration of Independence. Everyone of us must read and study these documents so that we;
- will understand what is 'constitutional' and what is not. After all, do we base our interpretation upon gut feeling, as many of us suspect the courts of doing, or do we know the document?
- will understand constitutional issues. Once we have this knowledge, candidates take on a whole different perspective for us and it is easier to see who, or what, we are voting for.
Legislative Opportunities For States' Rights
All of us have had some frustrations from dealing with our government agencies. We can agree with most of the arguments that it must be brought under control. Nonetheless, many view the government as largely benevolent. So we disagree about the methods and the scope to bring this control. The Founding Fathers were not so ignorant; they had an honest mistrust of government.[25] They also feared that a republic, without due vigilance, could revert to a socialist democracy.[26]
We have learned the history of our land, yet we take for granted the Declaration of Independence, the Revolutionary War and the blood that was spilled to severe our communities from all ties to oppressive government. We are glad for the freedoms that were won, but we have relaxed under the umbrella of a sheltering national bureaucracy. We consider those who still retain this honest mistrust of government to be radical. We fear radicals more than we fear the government.[27]
There are still a few people who have that honest mistrust. They believe in the Constitution and their right to self-government. The people of Catron County, New Mexico are a good example. They have set the standard for the States and counties of our nation. This small town depended upon grazing and resource extraction for their very survival, which was being threatened by the ever increasing regulations of an overweening federal bureaucracy. When faced with extinction they became radical and issued a 'declaration of independence' in the form of two county ordinances and one amendment.[28]
- They adopted sections of the Civil Rights Act that secured constitutional rights and protected the local citizen from federal intimidation.
- They allowed for the criminal prosecution of any federal, State or local agent that violates the constitutional protections of the citizens. Furthermore, it provided for local venue for such prosecutions, removing them from the federal courts.
- They allowed for civil prosecution for those convicted of violating an individual's constitutional rites.
- They increased the penalties for bureaucrats convicted of conspiring to usurp anybody's constitutional rights. If the conspiracy resulted in death, a life sentence would be imputed.
- They affirmed the holding of the Supreme Court in Lynch v Household Finance Corp.,[29] that "Property does not have rights. People have rights. The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right.
- They called for the federal government to comply with the Constitution of the United States, specifically to stay within the confines of article one, section 8.17 which limits their jurisdiction to specific lands.
- They affirmed the rights enumerated in the Declaration of Independence and acknowledged the limited scope of government.
- They called for a net reduction of federally owned properties and what could be termed a 'no net loss' of private property. All property issues are locally controlled and the State and federal agencies are required to file their proposals through the county commission.
- They affirmed the local rights to water resources, acquisition and production. State and federal agencies had to clear all water issues through the county commission.
- They prohibited the federal and State governments from obstructing agricultural opportunities and provided incentives for ranchers to improve grazing lands.
- They defined sustainable timber harvesting as, "continued at levels consistent with custom and culture and as affected by prevailing market conditions."
- They called for local control of the Endangered Species Act.
- They supported a return to the 1872 Mining Law.
- Regarding the extraction of natural resources, they called for economic opportunity, reliance on self determination, ensuring open market conditions and the protection of private property.
- They adopted emergency provisions on these ordinances and called for the State legislature to codify them into State law.
In order for them to come to these resolutions they had to understand one important principle of the Common Law construction of the Constitution: local government has primary supremacy on local issues. Therefore, local issues cannot be construed to have national significance in order to bring them under the umbrella of the federal bureaucracy.
The Constitution grants specific powers to the federal government. They do not have any rights that are not enumerated in that document, period. Furthermore, the ninth and tenth amendments clearly affirm that enumerating these powers "shall not be construed to deny or disparage others retained by the people," and all powers not delegated "are reserved to the States respectively, or to the people."[30]
When US Forest Service law enforcement officials attended a County Supervisor meeting, they threatened to arrest the whole board. The head superintendent countered with a threat to convene a Grand Jury on the spot and have the Sheriff arrest the lot of them. The feds left in defeat. No longer do they conduct their business in Catron County without the knowledge and approval of the local authorities. No longer do they intimidate and harass local citizens.[31]
During the 1994 session of the Colorado legislature, State legislators Charles Duke and Jim Roberts introduced a resolution for State sovereignty based upon the tenth amendment. It was passed by both houses and signed by the governor. They based the resolution upon a now famous case, New York v United States.[32] This case decided that Congress may not simply commandeer the legislative and regulatory powers of the States. By this action, the State of Colorado has lead the charge for the reactivation of the tenth amendment. We are beginning to reverse years of abuse by President Roosevelt's 'New Deal' policies.[33]
This is hard for us to understand at first glance because we have been programmed to believe from an early age that we are citizens of the United States. We have been instructed that we live within respective States that are a subordinate agency of the national government. What we have been taught in our government schools, however, is antithetical to the principles contained in the Constitution.
Despite all this, there are statutes still in force that continue to protect local autonomy. We just need to elect local officials that have the guts to go against the political powers that have been nationalizing, regionalizing and socializing our society for the last sixty years.
This is a good example of the importance of issues during local elections. It is difficult to avoid popularity because we may even know the local candidate through neighborhood, business, service club, church, or school affiliations. Next election remember this, good old boys got us into this mess. We need the radical James Madisons and Thomas Jeffersons who have that honest mistrust of government to steer us back out. The more local the election, the more important this admonition is.
Footnotes:
[1]Dwight D. Eisenhower, Speech to the NGC, Cleveland, OH, 08 Jun. 1964, quoted in Policy Review, no. 66 (Fall 93), p. 4 19
[2]President Roosevelt was frustrated with the anti New Deal Supreme Court which had been striking down his major programs and the essential elements of the New Deal. So he proposed to Congress to add one new justice for every judge over the age of seventy. This was couched as an attempt to facilitate caseload as the justices were getting old but could not be retired involuntarily without cause according to the Constitution. This would have immediately added six new justices to the bench. The scheme was obvious to most observers as a power grab and a few members of Congress accused him of dictatorial intent. Franklin Roosevelt's attempt failed, but it was successful in putting the 'fear of god (government)' into the justices. This mindset of civil government being a sacred institution has carried forward to the current bench. This explains the proclivity of the Court to rule with the government when the decision strengthens statist ideals, and ruling against the government when an affirmative ruling would serve to enhance individualistic freedoms.
[3]The New Book of Knowledge (1991 ed.), Grolier Inc., vol. 16, p. 323.
[4]ed. cit., "Federal Paydirt," World magazine, vol. 9, no. 32 (21 Jan 95), citing statistics from USA Today.
[5]Conference of the States: An Action Plan For Balanced Competition in the Federal System, "Draft concept paper to be proposed at the Council of State Governments annual meeting. Dec. 2-6, in Pinehurst, NC. Nov. 14, 1994." No publisher or author cited, excepting an annotation to contact Gov. Mike Leavitt's office for more information.
[6]op. cit., Conference of the States: An Action Plan... p. 2.
[7]op. cit., Conference of the States: An Action Plan... p. 3.
[8]The Constitution of the United States, art. 1, sec. 10.1: "No State shall enter into any Treaty, Alliance, or Confederation. . ."
[9]op. cit., Conference of the States: An Action Plan... p. 3.
[10]op. cit., Conference of the States: An Action Plan... p. 7.
[11]op. cit., Conference of the States: An Action Plan... p. 8.
[12]"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. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed. . ." The Declaration of Independence, paragraph 2.
[13]The Constitution of the United States, Preamble: "We, the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, 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."
[14]They will make more of us poor. With more of us to help out, they will have more dependents. After we are all reduce to penury, where will the money come to bail us out?
[15]Fernandez v Wiener, 326 US 340 (1945).
[16]Laurence Tribe, American Constitutional Law, 2nd ed., The Foundation Press, Inc., (1988), p. 226. He footnotes: "See Ware v Hylton, 3 US 199 (1796) (Treaty of Peace between United States and Britain voids state law confiscating British property). See also Hauenstein v Lynham, 100 US 483 (1880) (treaty providing inheritance rights for aliens prevails over state law disqualifying aliens from inheriting). Although the power to make treaties with the Indian tribes is constitutionally coextensive with the power to make treaties with foreign nations, Holden v Joy, 84 US 211, 242 (1872); Worcester v Georgia, 31 US 515, 558 (1832), and although states may not undermine such treaties, The New York Indians, 72 US 761 (1867), a rider inserted in an 1871 Indian appropriation act provided that 'no Indian nation or tribe within the territory of the United States' would thereafter be acknowledged. . . as an independent nation. . . with whom the United States may contract by treaty." 16 Stat 566, Rev Stat 2079, now codified as 25 USC § 71. After 1871, United States Indian relations were instead embodied in bilateral agreements which have also been given supremacy status over conflicting state law. See Antoine v Washington, 420 US 194, 203 05 (1975).
[17]Missouri v Holland, 252 US 416 (1920).
[18]John E. Nowak & Ronald D. Rotunda, Constitutional Law, 4th ed., West Publishing (1991), p. 213.
[19]Gerald Gunther, Cases and Materials on Constitutional Law 10th ed., Foundation Press, (1980), p. 252 3. He includes a footnote regarding a 1950 California case, Sei Fujii v State, 217 P2d 481. A California District Court held an alien land law invalid on the ground that the UN Charter was self executing. Fortunately, the California Supreme Court [242 P2d 617 (1952)] reversed this ruling, resting their decision on the fourteenth amendment, after finding the UN Charter was not self executing.
[20]Bricker Amendment, Sec 1: "A provision of a treaty which conflicts with the Constitution shall not be of any force or effect." Sec 2: "A treaty shall become effective as internal law in the United States only through legislation which would be valid in the absence of treaty."
[21]Some may contend that the Dred Scott decision was an exception, but it is important to remember that the majority of the justices were from the South. Their ruling was contemporary to the popular Southern opinion of their day. This 'popular will' aspect was affirmed in a recent article entitled "Abortion Before Roe," by Russell Huttinger. First Things magazine (Oct 94), p. 14. He points out that Justice Ruth Bader Ginsburg claimed that Roe was unnecessary because society was moving in that direction. Justice Harry Blackmun [the author of Roe] said that Roe was not a revolutionary opinion. Whether we agree with their claims or not, they do reveal something of their mindset. Robert G. McCloskey, in his book, The American Supreme Court, [University of Chicago Press (1960), p. 224] wrote, "it is hard to find a single historical instance when the Court has stood firm for very long against a really clear wave of public demand."
[22]Reid v Covert, 354 US 1 (1957).
[23]GATT was reported to be over 22,000 pages and stood over eight feet tall.
[24]Furthermore, the Court sees the United States' role as that of leading a multiculturally diverse world. For the sake of retaining our position of world leadership, they will often trample individual rights in the name of diversity.
[25]James Madison, Journal of the Federal Convention, vol. 1, pp. 241f. CD Sourcebook of American History (1992). Mr. MADISON: "In order to judge of the form to be given to this institution, it will be proper to take a view of the ends to be served by it. These were, first, to protect the people against their rulers, secondly, to protect the people against the transient impressions into which they themselves might be led. A people deliberating in a temperate moment, and with the experience of other nations before them, on the plan of government most likely to secure their happiness, would first be aware, that those charged with the public happiness might betray their trust. An obvious precaution against this danger would be, to divide the trust between different bodies of men, who might watch and check each other. In this they would be governed by the same prudence which has prevailed in organizing the subordinate departments of government, where all business liable to abuses is made to pass through separate hands, the one being a check on the other."
[26]Samuel Adams, 1768: "It is observable that though many have disregarded life and condemned liberty, yet there are few men who do not agree that property is a valuable acquisition. Those who ridicule the ideas of right and justice, faith and truth among men will put a high value upon money. Property is admitted to have in existence, even in the savage state of nature and if property is necessary for the support of savage life, it is by no means less so in civil society. The utopian schemes of leveling and a community of goods are as visionary and impractical as those which vest all property in the crown are arbitrary, despotic and, in our government, unconstitutional." Thomas Jefferson: "I place economy among the first and most important virtues, and public debt as the greatest of dangers to be feared. To preserve our independence, we must not let our rulers load us with perpetual debt. If we run into such debt, we must be taxed in our meat and drink, in our necessities and in our comforts, in our labor and in our amusements. If we can prevent the government from wasting the labor of the people, under the pretense of caring for them, they will be happy."
[27]Our nation has lost it courage. We fear David Koresh more than we fear the government that destroyed him and his followers. [Didn't Janet Reno send the tanks down there to protect the children?] We fear Randy Weaver more than we fear the government that shot to death his innocent wife and juvenile son. We fear those who think differently than ourselves more than we fear a government that tells us what to think, will punish us for hate and tells us whether we can pray and display Christmas and Hanukkah decorations. We are willing to sacrifice our first amendment rights to constrain radical opinions.
[28]Catron County Ordinance: No. 002 91 (21 Aug. 90, amended 16 Oct. 90); No. 004 91 (21 May 91).
[29]Lynch v Houshold Finance Corp., 405 US 538 (1972).
[30]The Supreme Court has a long history of ignoring the constitutional limitations upon the powers enumerated to Congress in art. I, sec. 8, especially clause 17. In Kleppe v New Mexico, 426 US 529 (1976) the Court, upholding the sovereignty of Congress over federal lands, stated that "Congress exercises the powers of both a proprietor and of a legislature over public domain" (at 540). However, they opened a window for this to be partially reversed in the future by conceding that, "absent consent or cession a state undoubtedly retains jurisdiction over federal lands within its territory." (at 543).
[31]As this book goes to press, I have just received unconfirmed reports that Janet Reno has filed suit against the people of Nye County, Nevada for a similar situation. If this is true, this suit should be of interest to everyone. This suit is not exclusive. She has sued everyone of us to remove our Bill of Rights.
[32]New York v United States, 120 L.Ed 2 120, 140 (1992).
[33]US v Darby, 312 US 100 (1941). Roosevelt's Solicitor General, Mr. Biddle, argued that "the plain purpose of the tenth amendment has been recognized by more than a century of litigation. . . . The court has repeatedly recognized the tenth amendment adds nothing to the Constitution." The Court replied in agreement, but in terms more palatable to the States and the citizens: "From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adopted to the permitted end."