Characteristics of Government

 


From: Committee to Restore the Constitution <comminc@webaccess.net>

Part 1

Part 2


CHARACTERISTICS OF GOVERNMENT - Part 1

Testimony, Attorney T. David Horton, before State Senate Committee on the Judiciary, Topeka, Kansas, 23 August 1979.

Mr. Horton, member, District of Columbia, Virginia and Nevada State Bar, and member, United States 9th Circuit Court of Appeals for the District of Columbia, is Counsel, Committee to Restore the Constitution, Inc. He may be contacted at Post Office Box 2107, Carson City, Nevada 89702.

 

If we study the Constitutional history and the principles of agencies that are involved in this agreement called the Constitution of the United States, we'll see that the ... States are in fact the principal. Each of the specified agencies in Washington is just that: a special or limited agency, not a general agent. For example, the legislative power of this body (Kansas Interim Judiciary Committee) is a general legislative power. A State legislature has authority to do anything it sees fit as long as it is not prohibited by either the state or the federal constitution. This distinction is very clearly spelled out in the Virginia Blue Book of the Virginia Legislature if you want to get a broader view, or broader statement, of it. But, the federal legislature on the other hand has to look at that Agreement and that Agreement alone to find specific authorization for what it does. They haven't been doing that as everybody knows. That's part of the problem. And along with the problem comes a question of what to do about it. But in order to see more clearly what the nature of the Agreement is and who's responsibility it is in the constitutional sense, to cure infractions, I think it is sometimes important to look at what some of the framers of the Agreement thought about it. If anybody knows what that Agreement said and what it meant, it ought to be the people who wrote it.

We have here for example a statement from James Madison whose role in the formation of the agreement between the states is very well known. He says, "The ultimate right of the parties to the constitutional compact to judge whether that compact has been dangerously violated must extend to violations by one delegated authority as well as another. By the judiciary as well as by the executive, or the legislature." That particular quote you will find reprinted in the little pamphlet called Nevada's Public Lands, copies of which have been distributed to the Committee.

In addition, we have the further consideration that something else is happening in connection with how things are run and we have a lot of people trying to have somebody else make our decisions for us. It's very easy copout to say "Well we've got a problem. Why don't we have somebody else come in here and decide the problem for us. That way we won't have the responsibility of making the decision ourselves." Of course, the Constitution doesn't provide for things to be run that way, but until we find out a better way, that's generally the way it goes.

If we look to some very capable attorneys, one of whom was Abraham Lincoln, we'll find a quotation from him that examines one of the processes of the law that has been developed, or misdeveloped, to substitute for Constitutional government, and that is the process whereby we expect the Myrmidons on the Potomac every Monday morning to pronounce from Olympus some new rules for us to go by. And all lawyers offices are filled with volumes of this stuff. We are kept poor keeping the legal publishers in business, by necessarily having copies of all this material. However, the scope that is being given to what goes on in Washington, particularly with regard, let's say, to the Supreme Court, is much broader than the Constitution provides, and much broader than any member to this Constitutional Compact ever agreed to. We find Mr. Lincoln saying in his first Inaugural Address:

"I do not forget the position assumed by some, that constitutional questions" (of course, the word used in the Constitution is cases, not questions. We start playing games with our terminology and frequently we find our ability to accurately gain concepts of what we are dealing with is compromised) Lincoln says: "that constitutional questions are to be decided by the Supreme Court. Nor do I deny that such decisions must be binding in any case upon the parties of a suit, as to the object of that suit, while they are also entitled to a very high respect and consideration in all parallel cases by all other departments of the government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effects flowing from it, being limited to that particular case with a chance that it may be overruled and never become a precedent in other cases, can better be borne than the evils of a different practice. At the same time" continues Lincoln, "the candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court the instant they are made in ordinary litigation between parties and personal actions, then the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that emminent tribunal."

"Nor is there in this view" concludes Lincoln, "any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decision to political purposes."

Political purposes, of course, have to do with policy. And if we are to allow members of the court, who have only judicial power not legislative power, to assume a role of telling us what to do in the legislative area, then we will be doing precisely what Lincoln was warning us against, namely, resigning our government into the hands of the members of the Court. They can't act as a Court if they go beyond the authority specifically granted. But the members of the Court can do anything they see fit, and they can get the Clerk to put the seal of the Court on it, and to the casual observer it might appear to be what the Court has done. However, if they lack authority, just as was found in the case of Marbury v. Madison with regard to a purported statute, what the Court attempts to do that is beyond its authority is void and it is just as void as an unauthorized statute or act of the administration would be.

When it comes to deciding what kind of remedy to apply, again, I think that we can find some interesting and instructive material in considering the conclusions of those who were a little closer than we are today to the framers of the agreement. We have for example, this passage out of the report of the Kentucky Legislature of November 19, 1799, which says:

"Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force. That to this contract (that is the Constitution) each State acceded as a State and is an integral Party, its co-States forming as to itself the other Party. That government created by this Contract was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion and not the Constitution the measure of its powers. But that, as in all other cases of compact among parties having no common judge, each Party has an equal right to judge for itself as well of infraction as of the mode and measure of redress."

Returning to President Madison we find in Mr. Madison's Report specific reference to the judiciary and the manner in which we may be departing from the heritage that most of us have been taught to believe is a good one. Mr. Madison said in his report:

"If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution" (of which Kansas is one) "the decisions of the other departments not carried by the forms of the Constitution before the judiciary must be equally authoritative and final with the decisions of that department. However true, therefore, it may be that the judicial department is, in all questions submitted to it by the forms of the Constitution to decide in the last resort, this resort must necessarily be deemed the last in relation to the authority of the other departments of the government, not in relation to the rights of the parties to the Constitutional Compact, from which the judicial, as well as the other departments, hold their delegated trust. On any other hypothesis" continues Madison, "the delegation of the judicial power would annul the authority delegating it, and the concurrence of this department with the others in usurped powers, might subvert forever and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve."

So if we see what the Parties to the Constitutional Compact had to say about it, we find that they understood where the Constitution began much better than we do. And that shouldn't surprise us because they figured out the Constitution. If we look at the text itself, we'll see a number of things that frequently escape our notice. For example, the fact that it is an agreement between sovereignties. We sometimes say that sovereignty inheres in the State and that all legitimate power, all power, whether legitimate (or illegitimate for that matter) originates in the State, both the power that is delegated to county governments and municipalities and the power that is lawfully exercised by the common agents of the States in Washington, Also, illegitimately exercised power arises from these sovereignties, and when usurpation occurs, it is the State power that is being seized ordinarily. Sometimes (and we'll get to it in another quotation from Judge Pine on this subject) sometimes there are encroachments by one branch on the functions of another.

But the principal problem that we are dealing with today is the overall grab for power by the agencies in Washington, most of it being exercised by nameless and faceless bureaucrats where even the President can't find out who is exercising the power. We have a little anecdote about that that I can regale you with if you are interested with regard to Nevada's public lands. But the first thing I'd invite your attention to with regard to the Constitution itself would be the signatures themselves that appear at the end of the Agreement. The first signature here, for example, is George Washington, and he is described as President. He was selected President of the Constitutional Convention. But the rest of his title is what shows he had any authority to be there at all. And that language is, "and Deputy from Virginia". Now if Virginia had not been willing to agree to the Constitutional Compact or agree to send a representative to the Convention, George Washington would never have made it.

Likewise, we find in the text of the Agreement itself, in Article VII, "the ratification of the conventions of nine states shall be sufficient for the establishment of this constitution between the states so ratifying the same." In other words, unless and until they had nine states agree to it they didn't have any Constitution. And each of the states up to that point, even those that had ratified, retained their complete and independent sovereignty, that was recognized by the Treaty of Paris that concluded the Revolutionary War, each of them having power to declare war; and each of them having the supreme prerogative of government, the power to issue its own money, which many of them did, prior to the formation of this Agreement. And it was only the signature of the ninth state, the agreement of the ninth state, that made it operable with regard to those nine. It happened, of course that the other four agreed.

However, this makes it unmistakably clear that this is an agreement between sovereignties. And when Kansas or Nevada comes in on an equal footing with the thirteen original Nations, it means that the only entity that the Congress has authority to admit to this union is a sovereignty. And in the constitutional sense, the term State, remember what Louis the Fourteenth said, "I etat ce moi," I am the State. The term State means sovereignty. And, we have tended to get away from this concept some with the passage of time because we have such free communication between the various Parties. We have lost sight of the fact that each of the Parties to the Constitutional Compact is just that - a principal under the Constitution. So, we find basically that the text that is frequently quoted, namely the Ninth and Tenth Amendments of the Constitution, is what we lawyers sometimes refer to as mere surplusage. It doesn't add anything to what's already there. The fact that you have an Agreement between the sovereign Parties to begin with would basically mean everything that I have referred to in the Constitution itself. But in addition, the fact that you had representatives of the sovereignties there drafting the agreement; and you have the individual sovereignties ratify for themselves and no one else. These things indicate that it is an Agreement between sovereignties. It makes it (the ninth and tenth amendments make it) much more difficult for those who don't want to be bound by this principle of limited government to pretend that those limitations aren't there.

One of the principal limitations that was incorporated into the Agreement was the limitation that, number one, it is an agreement between Sovereignties. What the agents have as any legitimate authority, had to come from those sovereignties by specific and limited delegation for authority.

There are some other points that I think sometimes have an effect to clarify our thinking of the matter. For example, on pages three through five on this little pamphlet that has been distributed entitled, Stop Usurpation, with State Action, you will see the report of the New York Legislature of 1833. It goes on to some considerable extent and I won't quote it to you, but it will point out I think that the language that some of us as school kids even memorized in the Preamble of the Constitution, We the people of the United States, does not mean all the peoples, the several peoples in the United States, but it refers to the individual States and the political societies within those particular states, each acting in it's highest sovereign capacity, which it must do in forming an Agreement with a sister State. I believe it was the Virginia Commission on Constitutional Government that some years ago brought out a rather thick volume on documents relating to the formation of the Union and they entitled this volume, interestingly enough, We the States. James Kilpatrick was the editor of that volume. And he was at that time unaware of the strong support for that interesting selection of title that is to be found in the report of the New York Legislature of 1833 which also approves a similar finding made by the Virginia Legislature.

TO BE CONTINUED

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Case Law

The Undoing of Both True Law and Common Sense

 

Countesy "R. J. Tavel, JD" <rj@freedomlaw.com>

 


CHARACTERISTICS OF GOVERNMENT - Part 2 (conclusion)

Testimony, Attorney T. David Horton, before State Senate Committee on the Judiciary, Topeka, Kansas, 23 August 1979.

Mr. Horton, member, District of Columbia, Virginia and Nevada State Bar, and member, United States 9th Circuit Court of Appeals for the District of Columbia, is Counsel, Committee to Restore the Constitution, Inc. He may be contacted at Post Office Box 2107, Carson City, Nevada 89702.

So if we look at all the historical authorities, we'll see that there is a position that the state can and should assume that it is being neglected and that is the position of a sovereign Party to this Agreement. This blindness on our part, a number of people have come up with different theories as to how we come to ignore sometimes the most simple of truths. I suppose we lawyers are the most guilty of anyone, because we are looked at as the gurus of the law, and they say, "We have a legal problem here - the Constitution seems to be dismantled - what are you lawyers going to do about it?" Those who have been spared the humiliation of a law school education find it considerably difficult to understand that the course that we get taught in law school called 'Constitutional Law' has very little to do with the Constitution. I nearly got thrown out of my first course in Constitutional Law for having the temerity to suggest to the professor that because this was advertised in the catalog as a course in constitutional law maybe we ought to read the Constitution. I was told in unmistakable terms that Dowling on Constitutional Law, the case book, is this course, and anybody who doesn't like it is at liberty to leave. Well, I wasn't about to leave. I wanted to see what they were up to. But this was the process that was used in the graduate school and in the law school - all of these various areas where they teach courses in constitutional law. They would be amazed, the professors themselves would be amazed, to find how far they are going from the Constitution in the process of pretending to teach constitutional law.

There is an anecdote that comes from the recently deceased Dean Clarence Manion that points this out very clearly. I won't burden you with it but in summary it shows that even Clarence Manion, who taught constitutional law for 22 years, blew a basic question on it when he was asked, because he was dealing with case books. He wasn't dealing with the Constitution. He was straightened out interestingly enough by Louis Budenz, a former Communist, who had studied our institutions to the point where he knew what the Constitution was all about and it's rather an interesting side light that many of us in the legal profession where we answer legal questions all the time find ourselves as babes in the woods when it comes to dealing with basic constitutional principles.

That's what the movement for state action to enforce the Constitution is all about. Because this is where the power started and this is where corrections of the Constitution have to take place if they are to be corrected and there is a very interesting reason for this. That is summarized in greater detail in this little pamphlet, Stop Usurpation. I will review it briefly for you. If the party or a particular party that has jurisdiction over a given State - and that means the state legislature - if the party does not correct an infraction that is committed through usurpation, by one or another of its common agents in Washington, then the agent that starts out having no authority whatever under the Constitution can end up bossing the citizens around - even in violation of the Constitution - because the Party to the Constitutional Compact did not correct the unlawful act of its agent.

Sometimes we use a rather homely analogy (which can be rather dangerous, analogies frequently are) but it points up this particular relationship. We say "Farmer Brown sends his hired hand to market with a load of potatoes to sell the potatoes and the hired hand sells the team and wagon." We have a specific or limited agency, that the hired hand ignores. Another hired hand can say "Charlie, you knew that was Farmer Brown's favorite team and wagon, you shouldn't have sold it." But all such scoldings are ineffectual if Farmer Brown doesn't do anything about it. And that agent starts out having no authority whatever to begin with ends up with giving good title to that team and wagon, that is good even against the Farmer himself.

The farmer has three options. (1) He can do the obvious thing and repudiate. (2) He can find out how much Charlie got for the team and wagon and if it was a good enough price, he can ratify and get a bill of sale, and even though the hired hand didn't start out having any authority, the deal is perfected and consummated by the later authorization of the principal. (3) Or he can do a third thing. And this is what the States have been doing. It is not really a third separate thing because it results in one of the other two things happening, and that is he can do nothing.

If he does nothing, he implicitly ratifies the unauthorized act of his agent. Some of us get confused when we talk about ratification, and we think that since we've left this thing go on so long, maybe we can't undo it. But I invite your attention to the fact that the State, being a sovereign, is never estopped. It is the state legislature that determines what your statute of limitations shall be, for example. On murder, frequently there is no statute; on a written contract it might be four years or six years; on a personal injury action it might be one or two years. But these are decisions that are made by the sovereign power of the Legislature and any estoppel that is worked by an inaction is good only insofar as what has happened. It cannot be prospective. You cannot bind, as you are frequently told, you cannot bind the acts of a subsequent Legislature. Even by inaction, this can't be done. So the option remains open to any State Legislature that wishes to do so to use it's legislative powers to correct constitutional infractions whether this comes from the Congress or from the executive or the judiciary.

With regard to how this is done and why don't we let somebody else do it, and "can't we bring a suit and have somebody else decide it for us," I'm afraid the answer to this last question is, no, we really can't, no matter how convenient that might be. It is nevertheless, our responsibility, and there is the good news and the bad news. As Pogo says, "We has met the enemy and they is us." If this is the case we may have to take the blame for things going wrong that we've previously tried to slough off onto someone else. But there is good news there. That good news is - that if it really is our fault, then we can fix it. It is only if it is our fault that we have the power to fix it. And we find that as we study more deeply into the subject, that we have almost unlimited power to fix these infractions - if we dig far enough.

Judge David Pine is a district judge in Washington, D.C. You may remember him - he is the one who decided when Harry Truman tried to grab the steel companies that Pine was the district judge who said, "No, you're not allowed to do that." And he was sustained by the United States Supreme Court (by a vote of 6 to 3) but nevertheless, it shows that he gave a certain amount of attention to this question of constitutional limitation. In a speech that was printed by the American Bar Association in November of 1954, he points out a number of things that deal with this general subject of usurpation. He starts by quoting from Washington's Farewell Address which is read on the floor of each House every February 22nd and regarded by most as very sound advice. (How much it is followed by the people who are supposed to listen to it is anybody's guess.) It is nevertheless, very sound advice - particularly insofar as it deals with the subject of usurpation. Washington says, "the spirit of encroachment, tends to consolidate all powers of governments in one and thus to create, from whatever the form of government, a real despotism." Then Pine quotes from Madison and the Federalist Papers, "The accumulation of all powers, legislative, executive, and judicial, in the same hands whether of one, a few, or many, whether hereditary, self-appointed or elective, may just be pronounced the very definition of tyranny." In Nevada it is a very express violation of our Constitution - Article 3 is unmistakable in its terms. It says, if you exercise legislative authority, you may not exercise either executive or judicial authority with such exceptions as the Constitution, and only the Constitution, may provide. These exceptions would include such things as the Governor's legislative veto which does have something to do with the legislative power. He does have this authority - to veto a legislative bill. It is not a complete or uncontrolled legislative authority, but is an authority that we have entrusted to our state executive. It is nevertheless specified in the Constitution and therefore, it is lawfully exercised. However, we find in Nevada we are doing what maybe you have done here and adopted in the State a so-called "Administrative Procedures Act".

Under the Federal Administrative Procedures Act, nameless and faceless bureaucrats, if they don't have any success in using our tax money to lobby their bills through our legislature to give them power over us, they have another expedient. That is to stick it into the Federal Register record. That is what the federal bureaucrats did with the duplicate mining regulations in Nevada. They were shot down in Congress and on the 23rd of December, shortly before Christmas, here these same regulations came full blown, published out in the Federal Register and as I mentioned, even Jimmy Carter can't find out who did it. If we find in administrative procedures that by use of the Federal Register bureaucrats are making policy making decisions, they are exercising legislative power.

They even have such anomalous sounding offices as "administrative law judges." In those three words they have succeeded in contradicting themselves twice. Because if it is law, it has to come from the legislature. If it's administrative, they are not allowed to exercise it if they happen to be a member of the legislature or a member of the judiciary. And further, if they are judges, then they are not allowed to be either administrative or policy making. Yet, they have with considerable boldness combined into one title one of the very problems that Judge Pine is concerned with. He says:

"The moral to which I said I would point before concluding my remarks is this. Follow the example of the founding fathers and be as alertly fearful as they were of usurpation of power, and forerunner of tyranny and oppression. When you say that that is seeing ghosts, the Constitution stands in the way - it is in no jeopardy, and is held in such high esteem and reverence as to be immune from destruction, I agree, if you refer to a frontal attack. But what I ask you to fear are attacks on the flanks, made in the cause of expediency and supported by vast popular demand at the moment." (Witness Davy Crockett)

The technique of the subverters will be the argument that the Constitution is a living thing and therefore susceptible to "growth" and must be adaptable and flexible enough to allow for changes in the social and economic life of the country.

Judge Pine continues:

"In recent years there has been a trend toward enhancement of the powers of the federal government. Now all of us are aware of this. This has been accomplished by the expansion of what was formerly believed to be the limits of the interstate commerce power and the taxing and spending powers and the federal government has thereby taken over the control of great fields of activity formerly considered the province of the states. There has also been a disposition in the federal government itself toward encroachment by one department upon the other. Particularly the executive upon the legislative and the judicial. That is not to say that the legislative has not cast covetous eyes toward the executive nor that the judicial has been demurely free from flirtations with the legislative powers. But at the moment, as I see it, the executive advances predominate."

That is an interesting comment to be coming from a pretty well versed gentleman in the affairs of Washington. He concludes that, "I am aware that the view I expressed has vocal opponents. But on consideration of their argument I detect that beneath their reasoning a predisposition to authoritarian government. So often, such people are willing to exchange liberty for efficiency, and freedom for temporary security or reward".

I don't think that we lawyers are completely absent in our contributions to a solution to this. More often, our reported remarks are likely to be confined to an examination of a problem rather than an examination of a solution and that's one reason why I think this committee is to be particularly commended for having the opportunity to inquire into this basic question of "Is regional government constitutional?" and to possibly make some recommendations as to the course that the Kansas legislature might take in the event that they find, as a number of other committees have found in a similar study of the subject, that there are indeed numerous and flagrant infractions of the Constitutional Agreement.


Transform 'spectatorship' to 'participation' in the patriotic struggle to restore, defend and preserve freedoms of person and property guaranteed to you by the Constitution of the United States.

To begin, send self-addressed, stamped 4X9 envelope. Ask for, "APPLICATION FORM" to establish a CRC county chapter as an affiliate of national Committee to Restore the Constitution, Inc.

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COMMITTEE TO RESTORE THE CONSTITUTION, Inc.

Post Office Box 986 Fort Collins, Colorado USA 80522

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