The Kiss of Judice: The Constitution Betrayed–Table of Contents for Volumes 1-4

Volume 1

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Declaration of Independence

Constitution of the United States

Précis for Volumes 1-End

Prologue: The Day the Constitution Died

Section 1. Rediscovering the Unadulterated Constitution and its Natural Rights’ Pedigree

§1:0. Beginning the coroner’s inquest: some general principles to navigate through the fog of constitutional law

§1:00. How to understand the Constitution

§1:000. A law like the Constitution is the best expositor of itself

§1:001. Common error is never law, even when repeated many times

§1:002. The court cases ‘interpreting’ the Constitution are not themselves the law

§1:003. Federal powers are ‘few and defined’―Mr. Madison

§1:004. Individual rights and states’ powers are numerous and open-ended

§1:005. How to determine the legitimacy of claimed federal power

§1:0050. Is the power listed?

§1:0051. Is the law implementing the power necessary?

§1:0052. Is the law proper?

§1:006. The Constitution has few, if any, ambiguities

§1:007. Partem aliquam recte intelligere memo potest, antequam totem, iterum atque iterum: ‘No one can rightly understand any part until he has read the whole over again’

§1:008. When there is doubt and interpretation of the Constitution may be necessary, the Federalist Papers are the Gospels, and other consistent writings of the Federalist authors and others are the Epistles

§1:009. Potestas strict interpretur: In cases of doubt, federal power should be strictly interpreted

§1:0010. When there is doubt about the text and apparent conflict between Hamilton and Madison over meaning, Madison’s views prevail

§1:0011. When there is conflict between the text of the Constitution and any of the founders’ writings, the text prevails except where it leads to an absurd result

§1:0012. Where the supreme court or any other court has no jurisdiction over the subject matter of a case, then the court’s ruling may rightly be disregarded

§1:1. A partial list of the Constitution’s power clauses corrupted by the supreme court

§1:2. Searching for the Constitution’s genomes

§1:20. Our expert witness-genealogists

§1:200. Madison: Early Nationalist, father of the Constitution, author of many of the Federalist Papers, and constitutionalist

§1:201. Jefferson: Libertarian author of the Declaration of Independence and ultra-Constitutionalist

§1:202. Hamilton: Constitutionalist only as an author of the Federalist; otherwise High Federalist-Royalist and ultra-Latitudianarist

§1:203. Story: Nationalist-Centralist, moderate Latitudinarianist supreme court judge and legal treatise writer

§1:204. Blackstone: English judge and author of commentaries on the common law1

§1:205. Locke: Libertarian Muse of the Constitution

§1:30. Why have government?

§1:30. To protect property

§1:4. What is ‘property’?

§1:40. Property: Broad definition: Property is one’s person, labor, and fruits of labor

§1:41. Property: Narrow definition: ‘the free use, enjoyment, and disposal of all his acquisitions, without any control or diminution, save only by the laws of the land’—Mr. Justice Blackstone

§1:42. Property: Broader definition: Property, in its larger sense, is ‘everything to which a man may attach a value and have a right; and which leaves to every one else the like advantage’—Mr. Madison

§1:43. Property: Broadest definition: ‘As a man is said to have a right to his property, he may be equally said to have a property in his rights’—Mr. Madison

§1:5. Property in a state of nature

§1:50. How property was acquired in a state of nature

§1:500. From God: ‘Originally, [t]he earth . . . and all things therein, [were] the general property of all mankind . . . .’—Mr. Justice Blackstone

§1:501. How labor created separate property rights

§1:51. How natural law itself prevents waste of property

§1:510. Nothing was made by God for man to spoil or destroy

§1:511. How labour could at first begin a title of property in the common things of nature, and how the spending it upon our uses bounded it

§1:52. How long rights to property lasted in a state of nature

§1:520. During physical occupancy

§1:521. Title until physical abandonment

§1:522. Title until abandonment-by-death

§1:6. Property rights’ deficiencies in the state of nature

§1:60. The enjoyment of property was ‘uncertain and constantly exposed to the invasion of others . . . .’—Mr. Locke

§1:61. Other deficiencies in a state of nature

§1:610. No settled, known law

§1:611. No unbiased judges

§1:612. No law enforcement power

§1:613. Impermanence and non-transferability

§1:614. Increasing scarcity of property

§1:7. Emerging from the savage state of vagrant liberty into civil society

§1:70. Man combines with others for the mutual preservation of property through law

§1:71. Legitimate law in civil society is ‘made by established standing laws, promulgated and known to the people [not by extemporary decrees], and enforced by indifferent and upright judges’―Mr. Locke

§1:72. ‘[T]he public good is in nothing more essentially interested, than in the protection of every individual’s private rights . . . .’―Mr. Justice Blackstone

§1:73. ‘Civil law is natural liberty . . . secured by the sanctions of civil society’―Mr. Hamilton

§1:74. The establishment of civil society made rules for the transfer of property possible

§1:740. The civil solution to loss of rights by abandonment: transfer of property by deed

§1:741. The civil solutions to abandonment-by-death: transfer by will, transfer by law, or transfer by escheat to the state

§1:8. Government’s duties with respect to property

§1:80. Prevent arbitrary seizures

§1:81. Prevent monopolies and promote free choice of occupations

§1:82. Impose equal taxes

§1:9. Why a Constitution?

§1:90. To establish the form of government

§1:91. To protect person and property from the government—to govern the governors

§1:910. No legislative act contrary to the Constitution can be valid

§1:911. ‘[B]ind [politicians] down from mischief by the chains of the Constitution’—Mr. Jefferson

§1:912. To establish ‘a government of laws, not men’—Mr. Adams

§1:913. Constitution is ‘a law for rulers and people, equally in war and peace’—Justice David Davis

§1:10. The relationship between the Declaration of Independence and the Constitution

§1:100. ‘Need for frequent recurrence to fundamental principles . . . as a necessary safeguard to liberty’―Mr. Madison

§1:101. The Declaration is an integral part of the Constitution

§1:102. ‘[The Declaration is the] holy bond of our Union’—Mr. Jefferson

§1:103. Even the Constitution itself is subject to higher law

§1:104. The Declaration overrides the rest of the Constitution in cases of inconsistency

§1:11. Fundamental political principles and basic individual rights protected by the Declaration (and the Constitution)

§1:110. Equality—‘All men are created equal’

§1:111. Natural rights may not be given up or taken away—‘[Men] are endowed by their Creator with certain unalienable rights’

§1:112. Basic rights endowed—‘among these are Life, Liberty and the Pursuit of Happiness’

§1:1120. Right to life

§1:1121. Right to liberty

§1:1122. Right of pursuit of happiness

§1:113. Purpose of government—‘to secure these rights, Governments are instituted among men’

§1:114. Government powers originate from consent—deriving their just powers from the consent of the governed

§1:115. Right of revolution

§1:116. Right of representation

Section 2: The Preamble: ‘Better recognition of popular rights than volumes of aphorisms’

§2:0. Why the Preamble? What it reveals about the Constitution

§2:00. Preamble: ‘a seamless weld’ between the Declaration and the Constitution—Dr. Eaton

§2:01. Preamble: ‘key to open the mind of the makers’―Mr. Justice Story

§2:02. The meaning of the Constitution is furnished by the evils to be cured or benefits to be obtained—Mr. Madison

§2:03. Preamble: not to be used to augment constitutional powers―Mr. Justice Story

§2:1. What the Preamble’s parts mean

§2:10. ‘We, the People of the United States’―a very contentious clause. Who created the Constitution? The people or the states? Why it matters: a national or a federal government?

§2:100. Justice Story: Government is national. ‘We, the people’ reveals that the Constitution is an act of the people, not of the states, and not a compact

§2:101. Mr. Madison: Government has a mixed nature, neither purely federal, nor purely national. The eight relevant factors to consider. The Madison-Taylor debate over those factors

§2:1010. Factor 1: Establishing the Constitution

§2:10100. Mr. Madison: Establishing the Constitution was a federal, not national, act

§2:10101. Col. Taylor’s reply: Establishing the Constitution was a federal act, but not for the reasons Mr. Madison gives

§2:1011. Factor 2: The sources of the ordinary powers of government—for the House of Representatives

§2:10110. Mr. Madison: House derives powers from the people. In that attribute, government is national, not federal

§2:10111. Col. Taylor’s reply: No powers are conveyed to government by election or representation, which are only the means for selecting the persons by whom the powers vested in the federal government are to be exercised

§2:1012. Factor 3: The sources of the ordinary powers of government—for the Senate

§2:10120. Mr. Madison: Senate derives powers from states. In that attribute, government is federal, not national

2:10121. Col. Taylor’s reply: Right conclusion, but again, no powers are conveyed to the federal government by election or representation

§2:1013. Factor 4: The sources of the ordinary powers of government—for the President

§2:10130. Mr. Madison: President has mixed federal-national attributes

§2:10131. Col. Taylor’s reply: The president has no national attributes: again, no powers are conveyed to the federal government by mode of election or representation

§2:1014. Factor 5: The direct operation of the government powers on individuals

§2:10140. Mr. Madison: Direct operation of government powers on individuals is a national attribute

§2:10141. Col. Taylor’s reply: the powers of the federal government are not defined by the mode of nominating its officers but by the Constitution

§2:1015. Factor 6: The extent of government powers

§2:10150. Mr. Madison: Federal power is over enumerated objects only; leaving states with a residuary and inviolable sovereignty over all other objects; those are federal, not national, attributes

§2:10151. Col. Taylor’s reply: Agrees

§2:1016. Factor 7: Disputes between states and the federal government

§2:10160. Mr. Madison: In controversies between the general government and the states, the tribunal ultimately to decide is under the general government. a national characteristic

§2.10161. Col. Taylor’s reply: No federal judicial supremacy, only constitutional supremacy

§2:1017. Factor 8: The constitutional amendment process

§2:10170. Mr. Madison: Constitutional amendment process is mixed federal and national

§2:10171. Col. Taylor’s reply: Constitutional amendment process is purely federal

§2:1018. Summary of Mr. Madison’s national vs. federal arguments: A mixed federal-national government

§2:102. Col. Taylor’s direct case: Why the government is federal, not national

§2:1020. Federal because Declaration establishes that government is federal, not national and supreme

§2:10200. ‘Consolidated’ means a fusion of state sovereignties into one mass

§2:10201. ‘Federal’ is a league between sovereign nations

§2:1021. Federal because an American nation able to make a national Constitution never existed

§2:1022. Federal because Constitution was only obligatory upon states that ratified; and because each state comprised a sovereign people, and no people existed, invested with a sovereignty over thirteen states

§2:1023. Federal because the mere establishment of state governments demonstrated the existence of state nations

§2.1024. Federal because of the federal convention’s rejection of a resolution calling for a national legislature with a veto over state legislation

§2:1025. Federal because the word ‘supreme’ used twice in the Constitution does not in either case confer supreme national power. In the one case, it refers to the supremacy of the highest federal court over the inferior federal courts; and in the other the supremacy of the Constitution and laws made in pursuance thereof over all other law

§2:1026. Federal because national jurisdiction now claimed for federal courts was rejected

§2:1027. Federal because of conditional ratifications of the state conventions

§2:1028. Federal because of the 10th Amendment

§2:1029. Federal because states were explicitly sovereign under Declaration, states voted by states at the convention, states ratified Constitution as states, states amended the Constitution as states, states reserved power of amendment as states, each state had equal representation in the senate, and states vote for president as states

§2:1030. Federal because union, unlike states, has no innate sovereignty; union is subordinate to states because states had formed union, and can ‘unform’ it

§2:1031. Federal because of Federalist assurances

§2:10310. Federalist assurance that states may use force to oppose federal usurpation

§2:10311. Federalist assurance that states retain all power except when union given exclusive authority. States have concurrent authority to exercise delegated union powers unless union power is exclusive

§2:10312. Federalist assurances that exclusive union authority only exists in three cases

§2:103120. Specific illustrations of the three cases of exclusive federal power

§2:1031200. Case 1. Where Constitution in express terms granted an exclusive authority to the union

§2:1031201. Case 2. Where it granted in one instance an authority to the union, and in another prohibited states from exercising like authority

§2:1031202. Case 3. Where concurrent state power is expressly prohibited

§2:10313. Federalist assurance that ‘necessary and proper’ clause does not give government a wide range of sovereignty

§2:10314. Federalist assurance that if the government make a tyrannical use of powers, the people, whose creature it is, may take such measures to redress the injury done to the Constitution as exigency may suggest and prudence justify

§2:10315. Federalist assurance that a coordinate federal-state authority exists

§2:1032. Federal government supremacy does not arise from the supremacy clause; clause only confers supremacy on the Constitution. Therefore, state laws within their reserved powers, are equally supreme with those of union within its delegated powers

§2:1033. Mr. Madison’s view of federal judicial supremacy and his attempt to reconcile it with his doctrine of interposition

§2:11. ‘To form a more perfect union’

§2:12. ‘Establishjustice’

§2:13. ‘Ensure domestic tranquility’

§2:14. ‘Provide for the common defence’

§2:15. ‘Promote the general welfare’

§2:16. ‘Secure the blessings of liberty’

Section 3: Federal Legislative Power: ‘Shall Extend to Certain Enumerated Cases’

§3:1. The powers of congress—a catalogue

§3:2. The nature of legislative power

§3:3. Article 1, §8, powers of congress

§3:31. Taxing power

§3:311. Need for a taxing power

§3:312. Limited purposes for taxes

§3:313. Consumption tax uniformity

§3:314. Direct tax uniformity

§3:32. Borrowing power

§3:33. Commerce power

§3:331. Commerce = trade

§3:332. Foreign trade

§3:333. Domestic trade

§3:334. Trade with tribes

§3:34. Naturalization and bankruptcy law powers

§3:341. Naturalization

§3:342. Bankruptcy

§3:35. Monetary and weights and measures power

§3:351. Monetary power

§3:352. Weights and measures power

§3:36. Counterfeiting law power

§3:37. Postal power

§3:38. Copyright and patent power

§3:39. Court-creating power

§3:310. High seas and international crimes power

§3:311. War, reprisals, and captures powers

§3:3111. The war power

§3:3112. Letters of marque and reprisal and captures power

§3:312. Armies power

§3:313. Navy power

§3:314. Military rules power

§3:315. Militia calls power

§3:316. Militia regulation power

§3:317. Federal property power

§3:318. Lawmaking power

§3:4. Other original legislative powers

§3:41. Treaties power

§3:42. Census power

§3:43. Treason power

§3:44. State relations power

§3:45. Admitting states power

§3:46. Territorial power

§3:47. Amendment proposal power

§3:5. Additional powers granted by amendments

§3:51. Anti-slavery/servitude powers (1865)

§3:52. Anti-discrimination powers (1868)

§3:521. Citizenship clause—no discrimination by states in state citizenship

§3:522. Privileges or immunities clause—no discrimination in state legislation

§3:523. Due process clause—no discrimination in judicial proceedings

§3:524. Equal protection clause—no discrimination in law enforcement or administration

§3:53. The other sections of the 14th Amendment

§3:531. Repeal of the 3/5ths rule

§3:532. Punishment of confederate civil and military officers, validation of union debt and repudiation of rebellion debt

§3:533. The remaining power-granting amendments

§3:5331. Voting rights: no race, sex, age, or wealth discrimination

§3:5332. Direct taxes without apportionment

§3:6. Summary of legislative powers

Section 4: Federal Executive Powers: ‘Carefully Limited’

§4:0. Preface

§4:11. Executive power: the administration of government

§4:12. The general subjects of executive power

§4:2. The reasons for an executive power

§4:21. Need for perpetual execution of and attendance to the law

§4:22. Need for a discretionary executive power to meet unforeseen circumstances

§4:22. Need for independence in the executive and separation of executive and legislative power

§4:3. Particular executive powers

§4:31. Law veto power

§4:311. The English and American roots of the American executive’s veto power

§4:312. How the president’s veto power works

§4:313. The president’s veto power compared with the veto powers of state councils of revision and governors

§4:314. The reasons for the president’s veto power

§4:3141. Veto checks the propensity of the legislature to strip executive authority

§4:3142. Veto a security against improper laws

§4:3143. The unlikelihood of the president abusing the veto

§4:315. The advantages of the American qualified veto over the English absolute

§4:32. Commander-in-chief power

§4:321. The need for a single hand in the direction of war

§4:322. The commander-in-chief power is not a power to declare war

§4:323. The commander-in-chief power is itself subject to congressional regulation

§4:33. Opinions power

§4:34. Reprieves and pardons powers

§4:341. Reprieves and pardons are indispensable tools of justice

§4:342. Why the president is given the sole powers of reprieves and pardons

§4:3421. The quality of mercy is more often found in a single hand than in a committee

§4:3422. In treason cases, the timing of a reprieve or pardon cannot often await the legislative process

§4:343. Why reprieves and pardons are not allowed in impeachment or legislative contempt cases

§4:35. Foreign affairs powers: treaty and diplomat power

§4:351. The treaty-making power

§4:3511. The English king’s treaty power is exclusive

§4:3512. The American treaty power is a joint executive-legislative power

§4:35121. Treaty power is an intermixture of powers

§4:35122. Neither president or senate ought to have the sole treaty-making power

§4:35122. Why the house of representatives was excluded from the treaty ratification process

§4:35123. Why treaties require approval by a supermajority of the senate

§4:3513. Treaties are the supreme law of the land and are not repealable at pleasure but may be altered or cancelled only by the consent of both parties

§4:3514. The senate’s role in the initial formation of a treaty

§4:352. The diplomat power

§4:3521. The defects in the articles’ power concerning sending and receiving diplomats

§4:3522. The case of the misbehaving ambassador

§4:36. Nominations and appointments power

§4:361. The English King’s nearly absolute appointment prerogatives

§4:362. The American executive’s shared appointments power

§4:3621. The president has only the power of nomination. the senate must approve the nomination for an appointment to occur

§4:3622. Senate approval is a check on presidential abuse of the nomination power

§4:3623. The nomination-confirmation process promotes stability in government

§4:363. Why the house of representatives was excluded from the appointment process

§4:364. The appointment of lower-ranking officers

§4:365. Who has the power of removal of federal appointments

§4:366. When an appointment takes effect

§4:367. How the president fills vacancies in offices when congress is not in session

§4:37. State of the union and recommendations power

§4:38. Convening and adjourning power

§4:39. Faithful execution of laws and commission powers

§4:310. Does the president have any implied or incidental powers?

§4:4. Summary of presidential powers


Selected Bibliography


Volume 2

Available @

Section 5: Federal judicial powers: ‘Carefully Restricted’

§5.0 Preface

§5.1 The nature of and reasons for a judicial power

§5.2 The need for an independent judiciary

§5.21 Judicial power must be separated from executive and legislative powers

§5.22 How the judiciary’s independence is constitutionally protected

§5.221 By the manner of appointment

§5.222 By life tenure (on good behavior)

§5.223 By the adequacy of judicial compensation

§5.23 The controls on the abuse of judicial power—impeachments of judges

§5.231 Mr. Jefferson on the sins of the federal judiciary

§5.3 Particular judicial powers: ‘The judicial power shall extend . . . ’

§5.31 ‘To all cases, in law and equity . . .’

§5.311 Cases

§5.312 Law cases

§5.313 Equity cases

§5.314 The effect of state sovereign immunity on federal judicial power

§5.315 Table summarizing federal judicial power

§5.32 ‘[Cases] arising under the Constitution

§5.33 ‘[Arising under] the laws of the United States . . .’

§5.34 ‘And [arising under] treaties made, or which shall be made, under their authority;’

§5.35 ‘—To all cases affecting ambassadors, other public ministers and consuls’

§5.36 ‘—To all cases of admiralty and maritime jurisdiction’

§5.37 ‘—To controversies to which the United States shall be a party’

§5.38 ‘—To controversies between two or more states

§5.39 ‘—Between a state and citizens of another state; [but not to] any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state;’

§5.310 ‘—Between citizens of different states;’

§5.311 ‘—Between citizens of the same state claiming lands under grants of different states;’

§5.312 ‘—And between a state, or the citizens thereof, and foreign states, citizens or subjects [but not to] any suit in law or equity commenced or prosecuted against one of the United States by citizens or subjects of any foreign state.’

§5.4 Concurrent or exclusive jurisdiction

§5.5 Original jurisdiction. ‘In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the supreme court shall have original jurisdiction’

§5.6 Federal appellate jurisdiction. ‘In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the congress shall make’.

§5.7 May the federal judiciary hear disputes between state and federal governments?

§5.8 Jurisdiction-setting powers of congress

§5.9 The controversy over appeals as to matters of fact: Did the original Constitution abolish trial by jury in civil cases?

§5.10 Trial by jury required in federal criminal cases

§5.11 Special rules for treason cases

§5.12 Territorial judges

§5.13 Summary of section’s conclusions

Section 6. Bill of Rights’ and Other Explicit Restrictions on Federal Power

§6.1 Article 1, §9, limitations on federal power

§6.11—No suspension of Habeas Corpus

§6.12—No Bills of Attainder or Ex Post Facto Laws

§6.13—No direct taxes unless apportioned according to population

§6.14—No tax on exports

§6.15—No port preferences

§6.16—No money to be taken from treasury unless for lawful appropriation

§6.17—No titles of nobility to be granted or accepted; no gifts or other titles from foreign nations

§6.18—No denial of right to jury trial in criminal cases

§6.19—Oaths; no religious test for public office

§6.2 Bill of Rights’ limitations on legislative power

§6.21 Bill of Rights catalogued

§6.211 Am. 1—No laws respecting an establishment of religion or prohibiting its free exercise

§6.212 Am. 1—No laws abridging the freedom of speech, press, rights of peaceable assembly and petition

§6.2121 The freedoms of speech and press

§6.212  Right to petition for redress

§6.213 Am. 2—No laws infringing right to bear arms

§6.214 Am. 3—No laws forcing quartering of soldiers

§6.215 Am. 4—No laws allowing unreasonable searches and seizures

§6.216 Am. 5—No laws allowing indictments in felony cases without grand jury approval except in certain military or militia cases

§6.217 Am. 5—No laws allowing double jeopardy

§6.218 Am. 5—No laws compelling ‘self-incrimination’

§6.219 Am. 5—No laws depriving life, liberty or property without due process

§6.2110 Am. 5—No laws confiscating private property

§6.2111 Am. 6—No laws denying right to speedy, public jury trial, or right to information on charges and to confront witnesses

§6.2112 Am. 6—No laws denying right to summon witnesses and have counsel

§6.21121 Compulsory process

§6.21122 Right to counsel

§6.2113 Am. 7—No laws abridging right to jury trial in civil cases

§6.2114 Am. 8—No laws imposing excess bail or fines or cruel and unusual punishment

§6.21141 Excessive bail

§6.21141 Excessive punishments

§6.3 ‘Net federal power’ preliminarily defined

§6.5 Restraints on federal power summarized

§6.51 The taxing power and how it is limited

§6.52 The defense powers and how they are limited

Section 7: Reservation of a Universe of Individual Rights

§7.0 Preface

§7.1 How the 9th Amendment came to be

§7.2 Some incorrect views on the meaning of the 9th

§7.3 The correct view: the Barnett view that the 9th  Amendment incorporates unenumerated substantive rights

§7.4 The Barnett ‘Presumption of Liberty’

§7.5 A partial list of 9th Amendment rights

Section 8: An ‘Immense Mass’ of State Powers: the 10th Amendment

§8.0 Preface

§8.1 The scope and purpose of the 10th Amendment

§8.2 An examination of the specific powers of states

§8.21 Except where cessions have been made, the territory covered by the Constitution is owned by the individual states in its separate character and not to the United States in its aggregate character

§8.22 The United States are not a consolidation of state governments

§8.23 The State Powers summarized and compared with federal power

§8.231 Federal powers summarized

§8.3 The wisdom of federal-state division of powers

§8.4 State rights to interpose against unauthorized federal powers

§8.41 The states are the parties to the constitutional compact; the Constitution was submitted to the states and the states ratified it

§8.42. Federal powers are ‘limited by the plain sense and intention of the instrument constituting that compact,’ and ‘as no farther valid than they are authorized by the grants therein enumerated.’

§8.43. Duty of interposition

§8.431. When interposition arises: in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact

§8.432 Where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated

§8.433 For interposition to be proper, the breach of the compact must be willful and material

§8.434 The meanings of ‘dangerous’, ‘palpable’, and ‘deliberate’ usurpations

§8.435 The object of the interposition must be solely that of arresting the evil of the usurpation

§8.436 Federal judicial authority is not the sole or final authority on the question of usurpation; the states as parties to the compact are

§8.437 The federal judiciary’s decisions are the last resort only in relation to the departments of the federal government

§8.438 The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind

Section 9: Powers Denied to States

§9.1 Prohibition against treaties, alliances, and confederations

§9.2 Prohibition against states granting letters of marque and reprisal

§9.3 Ban on coining

§9.4 Prohibition on bills of credit

§9.5 Ban on making anything but gold and silver legal tender

§9.5 Ban on bills of attainder, ex post facto laws, and laws impairing contracts?

§9.6 Ban on titles of nobility

§9.7 Ban on imposts or duties on imports, exports, and tonnage

§9.8 Other powers denied to states: powers exclusively federal

§9.9 Other powers denied to states: 14th Amendment and some other amendments

§9.10 Limits on state judicial powers

Section 10: Separation of Federal Powers: Necessary for the Preservation of Liberty

§10.1 Constitution doesn’t explicitly provide for separation of powers

§10.2 The importance of a separation of powers

§10.3 A complete separation of powers is not possible in good government

§10.4 Why separation is critical

§10.5 In representative government, the great danger to separation is from the legislative branch

§10.6 Separation of powers applies also to separation of federal and state functions

§10.7 Separation of powers is a structural principle of the Constitution

§10.8 The non-delegability of legislative (and other) powers


Useful internet links



Volume 3

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Section 11. The General Welfare Clause: Mutation of Restraint into Power

§11.1 Review

§11.2 The General Welfare clause: Most abused of all in the Constitution

§11.3 United States v. Butler: Supreme court changes our form of government

§11.4 Why Butler and subsequent rulings were wrong

§11.5 Alger Hiss and the Butler case

§11.6 General Welfare and Common Defence are words of limitation

§11.7 The Uniformity Clause: All duties, imposts, and excises must be uniform throughout the United States

§11.71 Consumption Taxes

§11.72 Direct Taxes

§11.8 The uniformity clause scuttled

Section 12: Federal Commerce Power: Leviathan’s Dragnet

§12.1 Commerce power: Introduction

§12.11 Review

§12.111 Commerce = Trade

§12.1111 Foreign trade

§12.1112 Domestic trade

§12.1113 Trade with tribes

§12.2 How the commerce power has been tortured

§12.3 The real meaning of ‘commerce’: ‘commerce’ is trade which is the sale and purchase of merchandise

§12.4 The purpose of the interstate commerce clause: to prevent a multiplicity of taxes on goods shipped from one state to another

§12.5 Gibbons, Blackbird Creek, and the ‘dormant’ commerce power; Cooley and the doctrine of ‘selective exclusiveness’

§12.6 Is the federal interstate commerce power exclusive or may the states also regulate interstate commerce

§12.7 Commerce-related powers denied states—No export or import duties except as necessary for inspection

§12.71 The meanings of the terms, ‘imposts’, ‘duties’, ‘imports’ and ‘exports’

§12.72 State inspection fees allowed

§12.8 States may nonetheless impose excise taxes (sales and use taxes) on goods imported from another state

§12.9 U.S. Government and states prohibited from any export tax on articles exported from one state to another or to a foreign nation

§12.10 Do states have power to prohibit interstate commerce within their borders?

§12.11 Congress has no power to prohibit interstate commerce

§12.12 Summary of Coroner’s findings and conclusions

Section 13: ‘Necessary and Proper’: ‘Any Expedient Will Do’

§13.1 Review

§13.12 How to determine the legitimacy of claimed federal power

§13.121 Is the power listed

§13.122 Is the law implementing the power necessary

§13.123 Is the law proper

§13.13 Fears over the scope of the necessary and proper power

§13.14 How the power works

§13.15 The power grants the power to enact the means by which an express power is carried out

§13.16 The necessary and proper power—a tautology with a purpose

§13.17 Why the form of the clause? Best of all alternatives

§13.18 The meaning of ‘necessary’; the meaning of ‘proper’

§13.2 On the unconstitutionality of the National Bank—Mr. Madison

§13.3 On the constitutionality of the National Bank—the debate between Mr. Jefferson and Mr. Hamilton

§13.31 Summary of Mr. Jefferson’s arguments and Mr. Hamilton’s replies

§13.4 Judge Tucker’s essay on the clause

§13.5 McCulloch v. Maryland gives sweeping effect to the clause

§13.6 President Andrew Jackson on McCulloch and on the clause

§13.7 The Story-Taylor debate on the scope of the ‘necessary and proper’ clause

§13.8 The Louisiana Purchase question

§13.9 The constitutionality of embargoes

§13.10 Other cases in which the necessary and proper clause was invoked

§13.101 In general

§13.102 Definition of punishment and crimes

§13.103 Chartering of banks

§13.104 Currency regulations

§13.1041 Prohibitive taxes on notes of state banks are unconstitutional

§13.105 The U.S. issuance of paper money is unconstitutional

§13.1051 The Legal Tender (Paper Money) Cases are unconstitutional

§13.1052 Legal tender cases: the background and the decisions

§13.1053 Mr. J. Field dissects the paper money decision

§13.10531 Field on the misuse of congressional power to declare war and borrow money

§13.10532 Field on the power to coin money

§13.10533 Field on federal laws which impair contracts

§13.10534 Field on C J Marshall’s view of paper money

§13.10535 Field’s parting shot

§13.106 The gold clause cases are unconstitutional

§13.1061 History of the Gold Clause Legislation

§13.107 Power to charter corporations

§13.108 Courts and judicial proceedings

§13.109 Special acts concerning claims

§13.110 Maritime law

Section 14 Delegation Run Riot: Exorcism of Separation of Powers and Ordination of Presidential Lawmaking

§14.1 Review—Separation of powers in general

§14.11 Constitution doesn’t explicitly provide for separation of powers

§14.12 The importance of a separation of powers

§14.13 A complete separation of powers is not possible in good government

§14.14 Why separation is critical

§14.15 In representative government, the great danger to separation is from the legislative branch

§14.16 Separation of powers applies also to separation of federal and state functions

§14.17 Separation of powers is a structural principle of the Constitution

§14.18 The non-delegability of legislative (and other) powers

§14.2 Background of separation of powers

§14.3 Separation in relation to executive powers

§14.32 Separation of powers: The rule as it applies to executive power

§14.321 How the court invested the president with fictitious plenary power where, as with congress, his only real powers are those enumerated

§14.3211 Cases ruling the president has inherent foreign affairs powers

§14.3212 Cases upholding executive agreements

§14.3213 Case upholding presidential authority to terminate treaties unilaterally

§14.3214 Cases upholding presidential powers to set tariffs

§14.3215 Cases on grants of legislative power to executive branch agencies

§14.3216 Cases on appointments and removals of executive personnel

§14.3217 Cases on independent counsel

Section 15: ‘Rambo’ Power Rampant

§15.1 Review

§15.11 War, reprisals, and captures powers

§15.12 Commander-in-chief power

§15.121 The need for a single hand in the direction of war

§15.122 The commander-in-chief power is not a power to declare war

§15.123 The commander-in-chief power is itself subject to congressional regulation

§15.21 Declared wars

§15.22 Undeclared wars

§15.221 Any armed hostilities are, by definition, war

§15.222 Congress has not the power to ratify, retroactively, the president’s initiation of any armed hostilites

§15.223 The Prize Cases: The supreme court hands Lincoln a blank check to start a war

§15.224 20th Century undeclared wars

§15.225 The ‘Declarations’ in the two gulf wars were invalid, because they gave the president unbridled discretion in deciding whether to go to war

§15.2251 The second Gulf War

§15.2252 The first Gulf War

§15.2253 The Gulf wars were also unconstitutional because based on the unconstitutional ‘War Powers Act’

§15.23 Truman’s Korean Wartime seizure of American steel mills held a violation of separation of powers doctrine

§15.3 Summary

Section 16: The 14th Amendment Amended: Voodoo Jurisdiction

§16.1 14th Amendment ‘interpretation’: The Janus-faced judiciary

§16.11 Judicial retreat, passivism, and dereliction

§16.12 Application of the 14th: The court switches from comatose to hyper

§16.2 Review

§16.3 The elements of the 14th

§16.31 State action requirement

§16.32 Citizenship clause—To prohibit discrimination in state citizenship rules

§16.33 The privileges or immunities clauses—To prohibit discrimination in state law

§16.331 The Article 4 privileges clause: Predecessor to the Amendment 14 privileges Clause

§16.332 Definition of privileges and immunities

§16.3321 Corfield v. Coryell (1823)

§16.333 The ambiguity of the Articles of Confederation privileges and immunities clause led to the enactment of the Article 4 clause

§16.334 The purpose of the 14th’s privileges and immunities clause—No state discrimination against the state’s citizens in state legislation and other state law

§16.335 Slaughterhouse Cases—Nullifying the privileges or immunities clause

§16.336 A survey of supreme court decisions on privileges and immunities

§16.3361 Survey of Article 4 privilege cases

§16.3362 Survey of 14th Amendment privileges cases

§16.33621 Colgate, Madden, Edwards, and Saenz

§16.34 Due process clause—No discrimination in judicial proceedings

§16.341 Reading the due process clause, as the court has, turns the bill of rights into an absurdity

§16.3411 The Bill of Rights: Reconstructed by the supreme court’s incorporation doctrine

§16.3412 A survey of supreme court decisions on due process

§16.34121 Procedural due process

§16.34122 ‘Substantive’ due process—A myth

§16.341221 Munn v. Illinois: Beginnings of the illegitimate doctrine of private ‘property affected with a public interest’

§16.341222 Allgeyer v. Louisiana: Substantive due process commands a majority

§16.341223 Lochner v. New York: Freedom of contract enshrined for a while

§16.341224 The Lochner dissents: Denying liberty of contract

§16.341225 Other cases striking down economic legislation

§16.341226 The end of liberty of contract: Nebbia and West Coast Hotel

§16.341227 The deferential approach to state legislation abandoned in voting rights and other non-economic cases: substantive due process reborn

§16.341228 Voting rights cases

§16.3412281 Minor v. Happersett: Women and the ‘right’ to vote

§16.3412282 The voting rights amendments and the abandonment of no right of suffrage doctrine

§16.3412283 The reapportionment cases

§16.34122831 Reynolds v. Sims

§16.3412284 Harper v. Virginia State Board of Elections

§16.3412285 Bush v. Gore

§16.342 A new kind of substantive due process formed: privacy and abortion

§16.343 A good word (mostly) for ‘Laissez-Faire Constitutionalism’

§16.3431 Pollock: The income tax unconstitutional

§16.3432 Plessy: the ‘legal’ segregation case

§16.3433 In Re Debs and Loewe v. Lawlor: Labor injunction cases

§16.35 Equal protection clause—to prohibit discrimination in law enforcement and administration

§16.351 A survey of supreme court decisions on equal protection

§16.352 The invented doctrines of ‘strict scrutiny’, ‘intermediate scrutiny’, and ‘rational basis scrutiny’

§16.4 Summary of 14th Amendment Powers

Section 17: R.I.P. Federalism

§17.1 Federalism officially declared dead: Garcia v. San Antonio Metropolitian Transit Authority

§17.2 The precedents leading to federalism’s death

§17.21 The 10th Amendment scrapped as a mere truism: United States v. Darby

§17.22 The Warren Court’s complicity in the crime: building an edifice of anti-federalism

§17.221 The Reapportionment Cases: First blow

§17.222 The religion cases: Judicial verbicide

§17.2221 Engel v. Vitale: School prayer banned

§17.2222 Jefferson’s ‘wall of separation’ examined: Law by metaphor

§17.2223 The illicit use of the 14th Amendment Clause to prohibit school prayer

§17.2224 Blaine Amendment prohibiting state religious establishments rejected

17.2225 Jefferson’s support of religion in schools

§17.2226 The court’s religion decisions: a collective ‘mess’

§17.223 The supreme court’s takeover of state governments

§17.2231 True Federalism: Barron v. Baltimore: Bill of Rights binding only on federal government

§17.2232 The incorporation debacle: Barron v. Baltimore and federalism trashed piecemeal

§17.2233 Supreme takeover of state criminal procedure

§17.22331 Miranda v. Arizona & Mapp v. Ohio

§17.2234 The abortion cases: Abortion on demand—A new constitutional right to murder

§17.2235 Pornography held freedom of speech

§17.2236 Flag-burning held freedom of speech: Texas v. Johnson

§17.22361 Mr. J. Rehnquist’s elegant dissent in Texas v. Johnson

§17.3 Early history of federalism

§17.31 United States v. Hudson & Goodwin: No federal common law crimes

§17.32 Federal court adherence to state court precedents common law precedents: Elmendorf v. Taylor

§17.33 Lip service to federalism: Cohens v. Virginia

§17.34 More lip service to federalism: Gibbons v. Ogden and Willson v. Blackbird Creek

§17.35 True federalism upheld: Barron v. Baltimore

§17.36 The supremacy clause: not a source of federal power

§17.37 Contracts clause: A restraint on states and also not a matter of federalism

§17.38 Federalism and the mayhem of McCulloch v. Maryland

§17.39 Commerce clause: When properly implemented by congress is not a matter of federalism

§17.391 People are not commerce: New York v. Miln

§17.392 The Passenger Cases: No commerce involved

§17.310 Federalism and the Fugitive Slave Act

§17.3101 Ableman v. Booth: Wisconsin Supreme Court rightly defies U.S. Supreme Court

§17.311 Tarble’s case: Another blow to federalism

§17.312 ‘Nationalism’ overtakes federalism in admiralty cases

§17.313 The invented doctrine of federal common law: Swift v. Tyson

§17.314 Federalism revived in part: Swift overruled: Erie RR v. Tomkins

§17.4 Federalism: Post Civil War drift

§17.41 Pensacola Telegraph Co. v. Western Union: Federalism fares badly

§17.42 Wabash, St. Louis & Pacific Railway Co. v. Illinois: State railroad regulation held constitutional

§17.43 Pure Food and Drug Act: Unconstitutional federal intervention

§17.5 The New Deal: Beginning of the end of federalism

§17.51 Warning signals that the court was wavering on the New Deal

§17.512 Nebbia v. New York and Home Building and Loan Association v. Blaisdell

§17.52 Schechter Poultry Corp. v. United States: Federalism’s last gasp

§17.53 United States v. Butler: End of limited government

§17.54 The ‘constitutional revolution’ of the New Deal

§17.55 The welfare state born

§17.56 The non-existent presumption of constitutionality of congressional legislation

§17.6 The Warren Court Era

§17.61 The 14th Amendment and Brown v. Board of Education

§17.62 Reapportionment Cases: Restructuring the Constitution with game theory

§17.63 The end of the 14th Amendment’s state action requirement

§17.64 Civil Rights Act of 1964 and Heart of Atlanta Motel v. U.S.: Ugly uses of the commerce clause

§17.65 Katzenbach v. McClung: Ollie’s Barbeque—into the pit of intergalactic commerce

§17.7 The Burger Court: Little Sir Echo of the Warren Court

§17.71 Roe v. Wade: The Burger Court’s legacy of infanticide

§17.72 Supreme court’s 60 year crusade against federalism

§17.8 The Rehnquist Court and the ‘Federalism Revival’

§17.81 Printz v. United States: Most principled decision in modern times

§17.82 State Sovereign Immunity for certain suits against it in federal court: The Rehnquist Court falls into a crevice

§17.821 Chisholm v. Georgia: How sovereign immunity came to be

§17.822 Cohens v. Virginia: Denied state sovereign immunity and upheld federal court intervention in state criminal cases

§17.823 Sovereign immunity abrogated in New Hampshire v. Louisiana and New York v. Louisiana

§17.824 Establishing ‘general’ sovereign immunity: Hans v. Louisiana

§17.825 Sovereign immunity denied: Ex Parte Young

§17.826 Warren court upholds congressional legislation denying state sovereign immunity

§17.83 The Rehnquist Court expands the constitution’s original sovereign immunity

§17.831 Seminole Tribe of Florida v. Florida: Rebirth of state sovereign immunity

§17.832 Alden v. Maine:An unwarranted expansion of state sovereign immunity

§17.84 Rehnquist Court limits federal commerce power

§17.841 United States v. Lopez: Court holds no commerce involved

§17.842 United States v. Morrison: Court again holds no commerce involved

§17.85 Employment Division v. Smith: States may prohibit religion-related drug use

§17.86 Boerne v. Flores: Court rightly limits congress’s authority to enforce constitutional rights under the 14th Amendment

§17.87 The Rehnquist Court misfires on the general welfare clause

§17.88 Romer v. Evans: Law forbidding preference to homosexuals held unconstitutional

§17.89 Lawrence v. Texas: Sodomy legalized

§17.810 Nevada Department of Human Resources v. Hibbs: Court upholds Family Leave Act

§17.811 Buckley v. American Constitutional Law Foundation: On limiting state referendum process to residents

§17.812 Saenz v. Roe: California’s attempt to limit welfare to long term residents only


Useful internet links


Volume 4 (in progress) (Below is the partially-completed Table of Contents)



Declaration of Independence

Constitution of the United States

Table of powers of congress

Notes to table

Table of restraints on federal legislation

Table of federal executive powers

Table of federal judicial powers

Notes to table

Summary of conclusions on federal judicial power

Section 18: The Assault on Contract

Section 19: Full Faith and Credit

Section 20: The 9th Amendment: An ‘Inkblot’ (Except in Abortion Cases)

Section 21: Roe and “Progeny”

Section 22: Other Jurisdictional Usurpations by the Court for Itself

Section 23: Ashcroft Hearings: ‘Pyrrhus Testifies’

Section 24: Field Test № 1: The Government and Major League Baseball vs. the Taxpayers—Into the Judicial Bull-Pen

Section 25. Field Test #2: Joan of Arc vs. Irs—Of Hamster Nostrils, Hexing Studies, and the Government’s Official Renunciation of The Federalist

Section 26. Field Test #3. Anatomy of a Judicial Murder: Of Beanbags, Unnatural Acts With Sheep, and a Judicial Pardon for a Governor

Section 27: Ex-Cathedra: Perpetuity of Infallible Error

Section 28. Two Constitutions: The Court’s vs. the Founders’

Section 29. Judici Officium Suum Excedenti Non Paretur. Constitutional Convention Anyone?


Useful Internet Links


Published in: on December 18, 2012 at 6:50 am  Leave a Comment  

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