SUPPORTING BRIEF #4: LIMITATIONS OF FEDERAL POWER - THE DRED SCOTT DECISION OF 1857, Page 1
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More and more people are studying the law on their own. Many of us have been gored by the government and wonder what gives the government such power over our daily lives. Also, many others, like myself, do not feel that many attorneys who charge extravagant legal fees properly represent our interests; for their primary interest is mammon, not our Rights.
I don't see how it can be denied that the federal government has made significant inroads into the lives of every individual living in America today. Just what type of government does the federal government resemble? Does it reflect the Constitution and the principles of the great men who founded the Republic?
The recent federal law which is directed at domestic violence is but another example of the federal government governing within the states at her own pleasure. The question is: Does the federal government, by the Constitution, have this power. If it does, then what type of government does it resemble?
We have already seen in SUPPORTING BRIEF #3 how the economic relations of the German people with the central government had a profound effect upon their decay as a democracy.
The Dred Scott decision was probably the most controversial Supreme Court decision in American history. The Dred Scott decision can be found in the Supreme Court Reporters at 19 How. 393-633 and also in Cotton is King and Pro-Slavery Arguments (Augusta, Ga.: Pritchard, Abbott & Loomis, 1860) on pages 741-804. It was in this case that the court ruled that "Declaration of Independence does not include slaves as part of the people" 19 How. 393. This case established in law that there was property in slaves.
It is true that it was the framers belief that, when they left the earthly scene, slavery was on the road to ultimate extinction. However, many of those exercising political power after the framers had died did the exact opposite of what the framers intended and were attempting to make slavery universal and perpetual across America. Lincoln saw this and sprang into action and exposed this political conspiracy to make America into a Slave Nation. Lincoln believed the Dred Scott decision to be erroneous. He stated:
"...but when they look through that old Declaration of Independence, they find that those old men say that 'We hold these truths to be self-evident, that all men are created equal,' and then they feel that the moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principles in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh, of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.
Now, sirs, for the purpose of squaring things with this idea of 'don't care if slavery is voted up or voted down,' for sustaining the Dred Scott decision, for holding that the Declaration of Independence did not mean anything at all, we have Judge Douglas giving his exposition of what the Declaration of Independence means, and we have him saying that the people of America are equal to the people of England. According to this construction, you Germans are not connected with it. Now I ask you, in all soberness, if all these things, if indulged in, if ratified, if confirmed and endorsed, if taught to our children, and repeated to them, do not tend to rub out the sentiment of liberty in the country, and transform this government into a government of some other form? Those arguments that are made, that the inferior race are to be treated with as much allowance as they are capable of enjoying; that as much is to be done for them as their condition will allow- what are these arguments? They are the arguments that kings have made for enslaving the people in all ages of the world. You will find that all of these arguments in favor of kingcraft were of this class; they always bestrode the necks of the people- not that they wanted to do it, but because the people were better off being ridden. That is their argument, and this argument of the judge is the same old serpent that says, You work and I eat, you toil and I will enjoy the fruits of it. Turn it whatever way you will- whether it come from the mouth of a king, an excuse for enslaving the people of this country, or from the mouth of men of one race as a reason for enslaving the men of another race, it is all the same old serpent, and I hold if that course of argumentation that is made for the purpose of convincing the public mind that we should not care about this should be granted, it does not stop with the negro. I should like to know- taking this old Declaration of Independence, which declares that all men are created equal upon principle, and making exceptions to it,- where will it stop? If one man says it does not mean a negro, why not say it does not mean some other man? If that Declaration is not the truth, let us get the statute-book in which we find it, and tear it out! Who is so bold as to do it? If it is not true, let us tear it out [cries of 'No, no']. Let us stick to it, then; let us stand firmly by it, then." The Complete Works of Abraham Lincoln (New York: The Tandy-Thomas Co., 1905), Vol. III, pp. 47-50
Lincoln was indeed correct when he stated that slavery would not stop with the negro. In his Cooper Institute Address, Lincoln mentioned "Helper's book". The book Lincoln was referring to was Hinton R. Helper's book Impending Crisis of the South: How to Meet it (New York: A.B. Burdick, 1860). Helper was a North Carolinian and stated the following on page 103 of his book:
"No time is to be lost; his fanatical adorers, the despotic adversaries of human liberty, are concocting schemes for the enslavement of all the laboring classes, irrespective of race or color. The issue is before us; we cannot evade it; we must meet it with firmness, and with unflinching valor."
There are many federal laws which indicate that the federal government is governing within the states at her own pleasure. It is common knowledge that federal gun laws, tax laws that operate directly upon the people's labor, FAA regulations, OSHA regulations, EPA regulations, and a host of other federal laws and regulations operate upon the people in the several states. The question is: Does the federal government, by the Constitution, have this power. If it does, then what type of government does it resemble? A Constitutional Republic or a Colonial Empire?
I will now present the constitutional arguments against federal laws that effect the internal concerns of the states. The key to the argument is Article IV, § 3 of the Constitution. The purpose of this provision in the Constitution is brought out very clearly in the case of Dred Scott decision. The case is very extensive and is 104 pages long. It goes into great detail on many constitutional issues, including the limitations of federal power.
This same case ruled the Missouri Compromise unconstitutional and void. The provision in the act that was unconstitutional was found in 8th section of the act of March 6, 1820. This provision prohibited slavery in the new territory. Chief Justice Taney delivered the majority opinion in the case. He was very clear that the federal government was limited in the exercise of its powers over both the territories and the states. He stated:
"For although it is sovereign and supreme in its own sphere of action, yet it does not possess all the powers which usually belong to the sovereignty of a nation. Certain specified powers, enumerated in the Constitution, have been conferred upon it; and neither the Legislative, Executive nor Judicial Departments of the Government can lawfully exercise any authority beyond the limits marked out by the Constitution. Dred Scott v. Sanford, 19 How. 393, 401.
If the federal government can govern in all of the fifty states at their own pleasure, what does this mean? Chief Justice Taney clarifies this point.
"There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation from Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and of the Federal Government. But no power is given to acquire a territory to be held and governed permanently in that character." supra., 446. (Note that once a territory becomes a state, the governing of the federal government ceases.)
If the federal government can govern in all fifty states at their own pleasure, then the states do not resemble states at all, but resemble colonies under colonial rule. I thought we got rid of King George over 200 years ago.
Chief Justice Taney stated that Congress had only a limited power of legislation in a territory.
"The Act of Congress, upon which the plaintiff relies, declares that slavery and involuntary servitude, except as punishment for crime, shall be forever prohibited in all that part of the territory ceded by France, under the name of Louisiana, which lies north of thirty-six degrees thirty minutes north latitude, and not included within the limits of Missouri. And the difficulty which meets us at the threshold of this part of the inquiry is, whether Congress was authorized to pass this law under any of the powers granted to it by the Constitution; for if the authority is not given by that instrument, it is the duty of this court to declare it void and inoperative, and incapable of conferring freedom upon one who is held as a slave under the laws of any one of the States." supra., 432.
If Congress can only exercise limited powers of legislation in a territory, then how can it claim to have the power to exercise unlimited powers of legislation in the fifty states?
"We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a state upon an equal footing with the other States, must rest upon the same discretion. It is a question for the Political Department of the government, and not the judicial; and whatever the Political Department of the government shall recognize as within the limits of the United States, the Judicial Department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to maintain in the territory the authority and rights of the government; and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the general government may exercise over the person or property of a citizen in a territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decisions must be governed.
"Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the general government, and to be governed by any laws it may think proper to impose. The principle upon which our governments rest, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a general government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the general government to obtain and hold Colonies and dependent Territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the Union in the exercise of the powers specifically granted." supra., 447-448.
Chief Justice Taney goes further:
"But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of government. The powers of the government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a territory of the United States, put off its character, and assume discretionary and despotic powers which the Constitution has denied it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The territory being a part of the United States, the government and the citizens both enter it under the authority of the Constitution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved." supra., 449-450.
Nor can Congress delegate powers to others that violate the Constitution.
"And if Congress itself cannot do this- if it is beyond the powers conferred on the Federal Government- it will be admitted, we presume, that it could not authorize a territorial government to exercise them. It could confer no power on any local government, established by its authority, to violate the provisions of the Constitution." supra., 451.
It is interesting that, in the State of Colorado, the criteria for determining whether or not an individual is required to file a state income tax return is based on whether or not the individual is required to file a federal income tax return.
"For abolishing the free System of English Laws in a neighboring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies..." The Declaration of Independence.
And:
"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. ibid.
Let us now go into more detail regarding the provisions of Article IV, § 3. In doing this, we will see that this constitutional provision's main purpose was to prevent the federal government from doing the very thing they are attempting today, that being, trying to join all of the fifty states together into one great Federal State.
Federal Laws that operate upon the domestic relations within the several states, displaces state law and replaces it with federal law. This violates Article IV, § 3 of the Constitution.
Justice Wayne, in his concurring opinion stated:
"If Congress possesses the power, under the Constitution, to abolish slavery in a territory, it must possess the like power to establish it. It cannot be a one sided power, as may suit the convenience or particular views of the advocates. It is a power, if it exists at all, over the whole subject; and then, upon the process of reasoning which seeks to extend its influence beyond the territory, and within the limits of a state, if Congress should establish, instead of abolish, slavery, we do not see but that, if a slave should be removed from the territory into a free State his status would accompany him, and continue, notwithstanding its laws against slavery. The laws of the free State, according to the argument, would be displaced, and the Act of Congress, in its effect, be substituted in their place. We do not see how this conclusion could be avoided, if the construction against which we are contending should prevail. We are satisfied however, it is unsound, and the true answer to it is, that even conceding, for the purpose of the argument, that this provision of the Act of Congress is valid within the territory for which it was enacted, it can have no operation beyond its limits, or within the jurisdiction of a state. It can neither displace its laws nor change the status or condition of its inhabitants." Dred Scott v. Sanford, 19 How. 393, 464-465.