This is the nineteenth in a series outlining where our elected lawyer politicians have themselves ignored or emasculated the limits on their power as given them by the Constitution of the United States.
Article 1 Section 10 of the Constitution sets out the limits that State governments have agreed to abide by as a consequence of their mutual agreement to join together for their mutual defense and welfare. It is reproduced in its entirety below:
“No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States.
No State shall, without the consent of the Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.”
It was Benjamin Franklin who, in 1789 in a letter to a friend wrote, “Our Constitution is in actual operation; everything appears to promise that it will last; but in this world, nothing is certain but death and taxes”. It was another who also said “the power to tax is the power to destroy”. The framers of the Constitution allowed that government could only tax for certain things and all for the defense of people’s lives, liberties and property. It was for this reason, and this reason alone Congress and the legislatures of the States were given the power by the people to exact the cost of that service through taxes.
The States derived their government’s income directly from their citizens mostly through poll and property taxes. It was imposed on so-called freemen, those who owned property, because they were the only ones who had the gold or silver to pay them. The States relied on these capitation taxes for their revenue, including the southern States. They did not agree to this method to fund the federal government or account for the State’s representation in the Congress because the northern, or mercantile states, would get unequal representation in exchange for paying more of the tax burden. This dilemma was temporarily solved, at least as far as representation was concerned, but not the taxing issue. The federal government was required then to derive its income solely through tariffs, excises, impost and the like that could be imposed on anything other than people as individuals. At the same time, the federal government was the sole recipient of such funds and the section of the Constitution cited above clearly spells out that the States could not utilize these types of taxes to fund their governments as they had when they had to fund the protection previously provided by the English government.
The house of cards they built by this compromise could never have survived, no matter how the federal government chose to fund its operations because the natural wealth distribution was always going to be unequal and the addition of new States altered that inequality in favor of the mercantilists who being in favor of big government would ultimately take complete control. If you doubt this, I ask you to examine the policies of both the Republican and Democrat parties and you will confirm that the only difference between the two is how fast they want the country to evolve into a party dictatorship.
The house of cards did not take long to begin tottering when in the very first Congress Alexander Hamilton, the treasury secretary succeeded in getting President Washington to sign into law the National Bank Act, thereby grabbing hold of the nation’s purse strings, in essence controlling its economy through taxation. The act was clearly beyond the powers yielded to the Congress but was never challenged. Thomas Jefferson the secretary of state and Edmond Randolph the attorney general obviously thought so because they both advised Washington against signing it. Jefferson and even James Madison thought this issue unresolved and prepared resolutions (Virginia and Kentucky Resolutions 1798-1799) passed by both State legislatures citing a States right to challenge the authority of the federal government. The mercantile north, then in control of the Congress, did not agree and the challenge was never brought to the Supreme Court. The argument was raised over the passage of the Alien and Sedition Act but the passage of the National Bank Act was not lost on the memory of those who drafted these resolutions.
A system whereby a law may be passed and enforced and then found unconstitutional cannot last. It is a system destined to dictatorship, whether by an individual or group representing 51%. The clear example is the recent passage of the Affordable Care Act (Obamacare). When challenged by the States, the law had been passed and was being implemented while the suit brought by the States was delayed and detoured by the Executive Branch until the Supreme Court was able to find a way to justify the law that was unconstitutional on its face. The Congress has no power to require individuals to buy anything, let alone pay for someone else because they cannot afford it. Mandating people pay to educate someone else’s children is another example.
The very first revenue generator was a tax on imports. The amount charged varied by commodity and was therefore a bill of attainder, prohibited by the Constitution because it singled out certain goods for lower tariffs in order to placate the domestic producers of equal or similar goods. Every tax law passed since has the same character, that of favoring one group or domestic producers or a segment of the population given the exception of non-payment.
State constitutions, like that of the federal government are compacts between the freeholders of the State and its elected government for the sole purpose of the protection of their lives, their liberties and their property. Like the feudal background from which they came, the American colonists divided their territory into counties and then into towns in order to provide government, or better, their enforcing power through its police as close to the people as possible. The reason, no longer applicable, was distance and time of response. Like the States are to a federal entity, the counties are to the State, wherein the State has jurisdiction over those living outside a county on State land, the State’s only constituency are the counties themselves and those living in unincorporated territories and for the sole purpose of protecting them from foreign encroachment and residents of the State from outside the unincorporated land. In Maine, there is no land outside of the jurisdiction of delineated counties except for that owned by the federal government. It is why crimes committed on federal land such as the robbery of a U. S. Post Office is a federal and not a state crime. Also, the robbery of a bank is a state crime that the federal government has made a federal crime although it takes place on privately-owned premises.
These laws and kidnapping, the selling and transportation of drugs and other crimes that can conceivably be committed in one state by a person fleeing to another, the federal government has usurped and actually thwarted the ability of state law enforcement to enforce the law outside their jurisdictions. It merely requires the mutual cooperation that implies you catch my criminals and I’ll catch yours. The ultimate in this move is already underway with federal FBI operations in every State and major metropolitan area. I agree that law enforcement is necessary but I hasten to add that if the punishment proscribed by God in the law as given to Moses and adopted by Christians and Muslims alike were applied there would perhaps be far less crime. That punishment, for murders and thieves was stoning to death. You need not believe me, just read the book of Deuteronomy.