Basic Jurisdictional Principles
A Theological Inventory of American Jurisprudence
Article I § 8 clause 1
"In this situation of this assembly, groping in the dark to find political truth,
and scarce able to distinguish it when presented to us, how has it happened,
sir, that we have not hitherto once thought of humbly applying to the Father
of Lights to illuminate our understandings? In the beginning of the contest with Great
Britain, when we were sensible of danger, we had daily prayer in this room
for divine protection. Our prayers, sir, were heard, and they were graciously answered.
All of us who were engaged in the struggle must have observed frequent instances
of a superintending Providence in our favor. To that kind Providence we owe this
happy opportunity of consulting in peace on the means of establishing our future and
national felicity. And have we forgotten that powerful Friend? Or do we imagine
that we no longer need His assistance? I have lived, sir, a long time,
and, the longer I live, the more convincing proofs I see of this truth,
that God governs the affairs of men. And if a sparrow cannot fall to
the ground without His notice, is it probable that an empire can rise
without His aid? We have been assured, sir, in the sacred writings that ‘except the
Lord build the house, they labor in vain that build it.’ I firmly believe
this. I also believe that without His concurring aid we shall succeed, in political
building, no better than the builders of Babel. We shall be divided in our
little partial local interests, our projects will be confounded, and we ourselves shall
become a reproach and a by-word down to future ages. And, what is worse,
mankind may hereafter, from this unfortunate instance, despair of establishing
governments by human wisdom, and leave it to chance, war, and conquest." 1

Article I § 8 clause 1:

Given the global covenant, there are serious problems in Article I § 8, even starting with the first clause:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;

In modern parlance, "Duties, Imposts and Excises" are types of taxes. But here, "Taxes" is juxtaposed to "Duties, Imposts and Excises" not as an encompassing concept, but as a concept distinct from "Duties, Imposts and Excises". So we’re led to wonder what "Taxes" are in this context. Part of the distinction between "Duties, Imposts and Excises" on one hand, and "Taxes" on the other, is given in this clause. It says, "but all Duties, Imposts and Excises shall be uniform throughout the United States". So "Duties, Imposts and Excises" are always "uniform". But according to Article I § 2 cl 3, 2 "direct Taxes shall be apportioned among the several States". So "direct Taxes" are "apportioned among the several States" by population, whereas "Duties, Imposts and Excises" are "uniform". The latter follow a "rule of uniformity", whereas the former follows a "rule of apportionment". This leads us to wonder if "direct Taxes" in Article I § 2 clause 3 is the same thing as "Taxes" in Article I § 8 clause 1. It is commonly believed that the "direct taxes" phrase in Article I § 2 clause 3 was modified by the 16th Amendment, thereby making the "income tax", which is purportedly a "direct Tax", "uniform" rather than "apportioned". Because of the complexity of this issue, we’ll not address it now, other than to say that the distinction between direct and indirect taxation has been crucial to argumentation about the legality of income taxation. 3 It’s worth wondering if millions of Americans are paying "income taxes" not because they are legally obligated to pay them, but because it’s easier for them to be obedient to the IRS and its cohorts in the legal and accounting professions, than it is to study these things personally, and do what’s legal, lawful, and right. Instead of examining such issues now, we’ll consider how taxation, generally, is viewed from the perspective of the global covenant.

In the hermeneutical prologue, we discovered that the bloodshed mandate in the Noachian Covenant applies to all human beings. It applies regardless of whether one is a victim of bloodshed, a perpetrator, or a by-stander. All humanity is subject to this mandate. We postulated that jural societies and ecclesiastical societies (strictly defined) must exist to make sure that this mandate is enforced. The manner in which it is enforced is subject to consent. If a given people-group chooses to honor God by choosing to enforce this mandate, then actions resulting from that choice are acts of collective consent. Both jural societies and ecclesiastical societies are formed on the basis of consent, and that’s the only basis upon which they can exist. But they have radically different purposes, based on the fact that damage can arise either out of a contract or not. When it arises out of a contract, the damage is ex contractu and is governed by the terms of the contract. Ecclesiastical societies (strictly defined) exist to adjudicate cases and controversies arising out of such ex contractu damage. When the damage does not arise out of a contract, the damage is ex delicto and is not governed by any private contract between the parties. It is governed primarily by the global covenant, more specifically by the prohibition of other-initiated damage in the Noachian Covenant, more specifically, in the prohibition in Genesis 9:6. Damage ex contractu involves consent, because lawful human contracts can only be entered through lawful consent. But damage ex delicto does not involve consent. The perpetrator perpetrates the damage regardless of the victim’s consent. Under such circumstances, the jural society should execute justice against the perpetrator regardless of whether the perpetrator consents to the execution or not. By perpetrating, the perpetrator forfeits his/her right to choose another fate proportional to the damage. But the consent involved in the perpetration of both ex contractu and ex delicto damage is distinct and different from the consent necessary to the formation and maintenance of jural societies and ecclesiastical societies.

Under the ecclesiastical jurisdiction, there is no absolute good and evil. There is only compliance with contractual obligations, or non-compliance. Non-compliance carries penalties. But if someone who has no contractual obligations murders someone else, there is no way that a lawful ecclesiastical society can have jurisdiction, because the jurisdiction of the jural society trumps that of the ecclesiastical society in such circumstances, i.e., regarding this subject matter. Modern jurisprudence can presume to place a monetary value on the victim’s life, and to award damages to the victim’s kin. An action for damages by relatives of a victim of bloodshed is an action that pertains to a subtle delict. The courts would treat the victim’s relationships with his/her kin as the property of such kin, and would award damages based upon the belief that such property was damaged. The damaged property in such a case is the relationships, not the life of the victim. This is because the life of the victim belongs to the victim, and to the victim alone. The damage to the victim is also a delict – in the case of murder, a gross delict. So all delicts fall within the scope and purview of the jural society, while the ecclesiastical society has jurisdiction strictly over contracts. Placing a monetary value on a human being’s life is foolishness, because every human being is created in the image of God. It’s ridiculous to place a monetary value on God. It’s likewise ridiculous to place a monetary value on the image of God in a human being. No amount of money can pay for such a life. To believe otherwise is to believe in the moral foundations upon which slavery is based.

A superficial understanding of these things might lead one to believe that these issues have nothing whatever to do with Article I § 8 clause 1. But such a superficial understanding neglects the whole issue of where, exactly, the power and authority to tax comes from. Were the framers simply setting up another tyranny? The power and authority to tax that Article I § 8 clause 1 allocates to Congress must be understood primarily from the perspective of the global covenant and the metaconstitution. To get this understanding, it’s critical to understand that the Constitution is a human contract. It is not divinely imposed like the biblical covenants. The biblical covenants often include terms that supersede consent, are pre-cognitive, and pre-empt human consent. But the Constitution doesn’t contain such pre-cognitive features because it exists entirely in the realm of human law. It must therefore abide by the rules that govern human contracts. A primary rule of human contracts is that they are perpetuated by the consent of the parties. Because this is an unavoidable and undeniable fact, the power and authority to tax is inherently consensual. The power and authority to tax, including both direct and indirect taxation, is merely a term of a human contract, at best. If the human contract is not consensual, then the taxation is merely theft, a delict, perpetrated under color of law. This may appear to conflict with over two centuries of interpretation of Article I § 8 clause 1. Even if it does, this interpretation doesn’t conflict with the metaconstitution that arises out of the Bible.

If the Constitution is to survive, it must be interpreted through the metaconstitution. It’s been said that the Constitution is merely a frame for the Declaration, the latter being the work of art. The frame must be consistent with the work of art, not the other way around. The Declaration posits fundamental principles of the metaconstitution. The Constitution merely reinforces those fundamental principles, and provides a mechanism through which to put those principles into effect. So even though Article I § 8 clause 1 doesn’t say explicitly that taxation, in the general sense, is completely voluntary, and subject only to contractual obligations, it must be understood to be rationally implied in the Declaration, and explicit in the metaconstitution.

Every human being is created in the image of God. As a result, each one of us has certain attributes that are "unalienable", and these attributes are what we’re calling rights. The jural mandate relates directly to protecting these unalienable Rights, whereas ecclesiastical societies function to protect contractual privileges and not the unalienable right to contract. Such privileges are not "unalienable". On the contrary, they can be alienated as easily as any given contract can be nullified or breached. The Constitution is geared to cover all cultures and ethnic groups that come to exist within the Constitution’s geographical jurisdiction. The Constitution therefore has an in personam jurisdiction that must encompass all ethnic groups and all kinds of people. From the Bible’s perspective, the only human law that has such authority, and that deserves such universal enforcement power, is the Genesis 9:6 mandate against bloodshed. But that mandate can be, and should be, understood to contain three clauses: (i)a negative-duty clause that prohibits damage by humans of other humans, which is backed by a positive-duty clause that mandates execution of perpetrators and thereby establishes this as globally prescribed human law; (ii)a positive-duty clause that positively mandates execution of justice against anyone who perpetrates damage of another human, but that is not accompanied by a penalty to be executed by human against perpetrator, and thereby fails to be an instance of globally prescribed human law; and (iii)a motive clause indicating why these human laws must exist, namely, because every human is created in the image of God. The fact that the negative-duty clause is penalty-bearing proves that the consent of the perpetrator is negligible in the process of executing justice. The fact that the positive-duty clause is not penalty-bearing is proof that the only way it can be lawfully enforced by humans is through voluntary action. This means that when people enter into agreements to take collective action against such perpetrators of damage, any resulting jural society or ecclesiastical society can only collect taxes and takings on a voluntary basis. If taxes and takings are not voluntary, then such societies have themselves become perpetrators of delicts. Because "Governments are instituted among Men" to "secure" unalienable Rights, and to do so through due process of law; taxation is important to keep the jural society, ecclesiastical society, and social compact functional. Without taxation, these societies lack the ability to maintain the trained, skilled specialists necessary to due process of law. Taxation allows the average citizen to live a normal life, relying on these specialists to keep the peace. It stands to reason that every human being within the geographical jurisdiction of the given society has a duty, under the bloodshed mandate, to pay taxes for this specific purpose. But this positive duty is not lawfully enforceable as human law except under the auspices of a lawful human contract. Such a contract does not pertain to people who are not party to the contract. So taxes and takings can be procured only from people who are party to the contract, meaning from people who have volunteered for such taxes and takings.

One of the rarely spoken assumptions in the united States is that the concept that governments derive "their just Powers from the consent of the governed" pertains to majority rule. In other words, "Governments are instituted among Men, deriving their just Powers from the" consent of the majority. The problem with this assumption is that it is nowhere confirmed in Scripture. A majority is as capable of perpetrating bloodshed as an individual criminal, or an individual tyrant. The framers of this nation’s organic documents weren’t stupid. They knew this. They may not have had a theology fleshed out adequately to make the distinctions that we’re making here, but it’s probable that the Bible-believing among them had at least some inkling about these distinctions. 4 The obvious fact to us, today, is that "consent of the governed", in order to be consistent with Scripture, might have two different meanings. One meaning pertains to the consent accorded to an ecclesiastical society. The other pertains to the consent accorded to a jural society. In both cases it’s true that governments derive their "Powers from the consent of the governed". But this is true for two different reasons. 5

(1)A permanent jural society is formed through agreements, contracts, and covenants that define the forms that due process takes, the ways that offices are filled, the rules of court, etc. The "governed", under such circumstances, consent, or acquiesce, with regard to these due process mechanisms. But if they refuse to consent to the basic impetus behind the jural society, namely, the protection of rights (especially property rights and the right to contract), then the jural society has a duty to enforce against bloodshed without regard, either pro or con, to the refusenik’s refusal. As long as the jural society confines itself to its Scripturally legitimate purpose and function, it has a lawful power and authority to tax those who have consented to such taxation.

(2)A permanent ecclesiastical society is also formed through agreements, contracts, etc. But the purpose of the ecclesiastical society is very different from that of a jural society. This is because its purpose is not to curb delicts, but to enforce the terms of agreements and contracts. Consent in this latter sense applies only to people who are party to such agreements, contracts, etc. The subject matter jurisdiction of an ecclesiastical society only encompasses damage, bloodshed, that arises ex contractu.

Since "The Congress shall have Power To lay and collect" practically any kind of taxes, as long as such taxation is not confiscatory, one crucial question we need to ask is this: For what purpose? — If Congress collects taxes to support the jural society within its legitimate functions, then those of us within the geographical jurisdiction of this jural society are wise to pay such taxes for the sake of keeping our consciences clear. If Congress charges a user’s fee to anyone who uses the ecclesiastical courts within this geographical jurisdiction, then such users are duty-bound to pay. But if Congress attempts to collect taxes for boondoggles, free lunches, give-away programs, and other vote procurement enterprises, citizens are duty-bound to refuse. But if a citizen receives a benefit, then that benefit is a sign that there is probably a contract between such beneficiary and some other party. If the other party is Congress, by way of some agency of the general government, then one’s reception of the benefit is a sign that the recipient has obligations related to that benefit. Such obligations may well be the payment of some form of tax. — But at this point in this survey of the Constitution, none of this is spelled out yet. It’s essential to see what the Constitution says these "Taxes, Duties, Imposts and Excises" are for. It’s essential to see what they’re supposed to pay for.

(1)The first thing mentioned that these taxes are for, is "to pay the Debts". OK! A social compact might run up some debts. If they’re doing a good job otherwise, we, "the governed", would be well-advised to pay their debts. For the government to force people to pay for a benefit that they do not receive is for the government to perpetrate bloodshed against its people, thereby becoming a violator of their property rights. All people within the geographical jurisdiction of the social compact are morally obligated to pay taxes to support its legitimate functions. But they are not obligated from a human-law perspective unless they have entered into human contracts that make them obligated. A party to the given social compact may be involved in numerous contracts that fall indirectly within the jurisdiction of its ecclesiastical society. But such a party might never, throughout his entire life, be involved in a contractual dispute that needed to be adjudicated by this ecclesiastical society. It therefore makes no sense for this party to be mandated to pay for the upkeep and maintenance of this system of ecclesiastical courts. To put such a burden on such a party would be to violate this party’s property rights. From a Scriptural perspective, the legitimate way for the ecclesiastical society to be supported is through user’s fees. But they might also be supported through voluntary donation from non-users.

(2)The next thing mentioned that these taxes are for is to "provide for the common Defence". The protection against foreign encroachment is a perfectly legitimate function of a jural society. So we’d be well-advised to pay for it. This "common Defence" is a purely jural function. The jural society might contract with munitions manufacturers and other defense contractors, and if there were related contractual disputes, such disputes would naturally fall within the jurisdiction of the ecclesiastical compact. Under such circumstances, tax revenues would naturally be paid by the jural society as a user’s fee to the ecclesiastical society. But generally, "common Defence" is a purely jural function. Payment of taxes for such a function, like payment of taxes for all jural functions, is a moral obligation, but not necessarily a human-law obligation, for all that live within the geographical jurisdiction of the jural compact.

(3)The next thing mentioned that these taxes are for is to "provide for the . . .  general Welfare of the United States". Here is where we’re getting into serious trouble. This is because "general Welfare of the United States" is so open-ended and nebulous. It could be limited to purely jural functions, or it might entail turning the government into some kind of "big brother" that snoops into otherwise private kitchens, bathrooms, bedrooms, etc., making sure that the "general Welfare" of every human being within the social compact’s geographical jurisdiction is cared for assiduously. If every human being within the social compact’s geographical jurisdiction desires this kind of "general Welfare", then this kind of "general Welfare" might be an overall good thing. But if there is even a single human being who refuses to have anyone, including the government, encroach upon his private property in this manner, then if the government does it anyway, then the government thereby makes itself a perpetrator of bloodshed. If the government functions by majority rule, then the entire population is culpable, excluding this one victim. — We have to conclude that the taxes to pay for the "general Welfare of the United States" might be bloodshed, and it might not. It depends entirely upon how this "general Welfare" is defined.

Since the united States under the Articles of Confederation were a confederacy, it’s clear that if "general Welfare" was something defined within those Articles, then "general Welfare" was, in the framers’ minds, by definition something intended for a confederation. In fact, the 3rd Article of Confederation said that the thirteen States "hereby severally enter into a firm league of friendship with each other, for their . . .  general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.". 6 This is obviously primarily about common defense against a foreign invader. The 8th Article says, "All charges of war, and all other expenses that shall be incurred for the common defense or general welfare, . . .  shall be defrayed out of a common treasury, . . . .". 7 It’s clear that "general welfare" in both the Articles of Confederation and the Constitution is a legal term of art that pertains to the welfare of a confederation. It has absolutely nothing in common with the modern conception of "general Welfare". "[G]eneral Welfare" defined within the context of a confederation is radically different from "general Welfare" defined within the context of a consolidated nation. Since the framers collectively desired to combine features from the Confederation with features of a consolidated nation, the fact that they lifted "general welfare" from the Articles of Confederation indicates that the meaning in the Constitution was intended to be very similar to the meaning in the Articles. It was a relatively limited concept of "Welfare". It was emphatically NOT the megalomaniacal concept of "Welfare" envisioned by exponents of the modern Welfare State. 8

Like the 3rd and 8th Articles of Confederation, the Common Defense and General Welfare Clauses in the Preamble and Article I § 8 clause 1 identify the general purposes for the Constitution, and for taxation. It makes sense that if a secular government is not limited by a clear definition of purpose – and by a rigorous linkage between taxation and spending – then such secular government might be inclined to collect taxes for purposes well beyond the scope of legitimacy. This is precisely the problem with Article I § 8 clause 1. "Many anti-federalists maintained that the Common Defence and General Welfare Clause in Article I, Section 8 was sure to be used as a pretext by usurpation-minded politicians to assert a predominant and sweeping power of Congress . . . . Furthermore, they said that, not only would a general power of legislation be claimed by Congress, but soon inherent limits of republican government would be exceeded.". 9 This is precisely what happened as early as 1798, in the Alien and Sedition Acts. Even though the latter two acts were soon repealed, the abuse of this General Welfare Clause continued, and eventually morphed into a platform for national American socialism in the 20th century. It tends to make one wonder: If the original intent of the framers was for Congress to have plenary power to legislate on whatever they wanted, why did the framers go to the trouble of enumerating the powers of Congress in Article I § 8?

The primary legislation passed by Congress for the establishment of the welfare state, was the Social Security Act. It was passed in August, 1935. The preamble of this Act says this: "An Act to provide for the general welfare by establishing a system of Federal old-age benefits, and by enabling the several States to make more adequate provision for aged persons, blind persons, dependent and crippled children, maternal and child welfare, public health, and the administration of their unemployment compensation laws. . . . " 10 "[G]eneral welfare" in the Social Security Act is obviously not the same thing as "general Welfare" in Article I § 8 clause 1. This is verified by looking at what James Madison said when he vetoed a bill for "internal improvements" in 1817: "To refer the power in question to the clause ‘to provide for the common defense and general welfare’ would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the limited one hitherto understood to belong to them." 11 — If the Social Security Act were solitary and insignificant, we might overlook it as a fluke in constitutional history. But it is not solitary, and it is not insignificant. In fact, it is the linchpin that allows the modern American Welfare State to keep rollin’ on. 12

After the Social Security Act became law, the States generally set up welfare departments in all their counties for the sake of administering parts of this act. 13 This is more evidence of the consolidation of government. It is evidence that the States were turning more and more into little more than administrative provinces, 14 and the confederation side of the Great Compromise was being abandoned. The framers envisioned a confederate republic, in keeping with the teachings of Baron de Montesquieu. 15 Instead, in the 20th century, after the War Between the States, the system created by the framers morphed into a consolidated nation, definitely not a confederacy, and hardly a republic. 16



Under the guise of a national emergency created by the Great Depression, 17 the "New Deal" administrations of President Franklin D. Roosevelt were able to push not only the Social Security Act, but also "the greatest reform surge in history", 18 through Congress and into de facto law. Like the modern concept of "general Welfare", these laws have marginal constitutional authority, at best. In other words, that the laws generated by the New Deal Welfare State are de jure is highly unlikely. Nevertheless, they are de facto because all the guns and jails in American government support them, even if the Constitution doesn’t, and even if the global covenant doesn’t. The Great Depression created such confusion and insecurity that New Deal laws that circumvented the Constitution were passed without a single amendment being proposed, much less ratified. The courts responded in 1935-1936 with voluminous repudiations of New Deal legislation: "In the course of those years some 1600 injunctions against the application of New Deal laws were issued by lower court judges.". 19 In those years, the supreme Court also nullified New Deal legislation. Chief Justice Charles E. Hughes, in Schechter Poultry Corp. v. United States, delivered the unanimous decision that, "Extraordinary conditions do not create or enlarge constitutional power. The Constitution established a national government with powers deemed to be adequate . . . , but these powers of the national government are limited by the constitutional grants. Those who act under these grants are not at liberty to transcend the imposed limits because they believe that more or different power is necessary. Such assertions of extra-constitutional authority were anticipated and precluded by the explicit terms of the Tenth Amendment– ‘The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.’". 20 This was the supreme Court’s response – sometimes – to the government’s argument that extraordinary legislation was "justified by the national economic emergency". 21 This decision in Schechter certainly appears to be consistent with the framers’ original intent. Even so, the Court’s constitutional opposition to the New Deal’s "reform surge" was short lived.

After having much of his socialist legislation nullified by the judicial branch, Roosevelt submitted a Court Reorganization bill to Congress, his notorious court-packing plan. In essence the legislation would allow up to six more judges to be added to the supreme Court, thereby allowing Roosevelt to appoint more justices, and gain support for his schemes. "[T]he President’s policies were being thwarted by the Court, and he proposed to get enough men on the bench to alter the character of the decisions.". 22 Congress rejected Roosevelt’s plan, but the justices were apparently so dismayed by the whole episode that some of them retired, and others decided to go along with the President’s "emergency" program. In short, all opposition from the judicial branch, to this massive circumvention of the Constitution, was eliminated by 1937. "New Deal legislation went through the Court without difficulty after 1937.". 23

To some, the huge changes in the American legal system during and since the Great Depression may not appear, at first glance, to be at odds with the global covenant. But if we recall that non-consensual taxation is never justifiable, then it’s evident that any taxation for any purpose other than the execution of justice against bloodshed, including every form of "general welfare" that became positive law during the Great Depression, is itself bloodshed. It turns the government into a criminal. Such taxation is essentially theft. The fact that the government perpetrates the theft makes such theft no less a form of bloodshed. — All the apparently good things that such legislation was designed to do, are the lawful province of social compacts that are based entirely upon agreement and consent. They are never within the scope and purview of a legitimate jural society or secular social compact. — These "general Welfare" boondoggles continue to be nothing more than a renewed effort at building the Tower of Babel. Even so, it’s important to wonder how we got into this situation in the first place. Although the "general Welfare" clause has provided an easy rationale for exponents of a consolidated national government, the real constitutional mechanism has been the Commerce Clause. 24

Whatever the means of its birthing, the Welfare State has been a radical departure from the original intent of the framers. Admittedly there was disagreement among the framers about the meaning of "general Welfare". Madison and Jefferson, representing the majority view, believed that it should be understood to be nothing more than a "summary or general description of the specific powers" enumerated in Article I § 8, and that it gave Congress no additional powers. But Alexander Hamilton – the most outspoken voice for national consolidation at the Constitutional Convention – contended that it was another enumerated power. Another possible view was that it gave Congress unlimited power to legislate. The latter view violates the contention among federalists that the Constitution was limited. In the final analysis, Hamilton’s view also violates the limited Constitution. This is because there is no rigorous definition of "general Welfare". All views other than the strict constructionist view of Madison and Jefferson violate the global covenant by making a claim that it’s valid to tax for whatever government may claim is "general Welfare". 25

The supreme Court never ruled on this issue until 1936. In United States v. Butler the Court endorsed Hamilton’s view. At the same time that it ruled the Agricultural Adjustment Act of 1933 unconstitutional, the Court opened the door wide to the Welfare State by explicitly accepting Hamilton’s view, and claiming authority to judge on a case-by-case basis whether "general Welfare" legislation really was in the general welfare of the consolidated nation. 26 But long before 1936, the Court had allowed Congress to exercise powers not explicitly found in the Constitution. Congress created a national bank – a dubious act, at best, in light of the global covenant – and the Court approved of the bank in McCulloch v. Maryland (1819). Congress emitted bills of credit and made such paper money legal tender – another dubious act – and the Court approved in the Legal Tender Cases (1871). Congress controlled the value of paper money by making it legal tender in private contracts, as well as public – another dubious act – and the Court approved in the Gold Clause Cases (1935). 27 These acts of the general government laid parts of the legal foundations for the Welfare State.

The Welfare State would not be the Welfare State without administrative agencies. — Article I delegates powers to the legislative branch. Article II delegates powers to the executive branch. Article III delegates powers to the judicial branch. The framers deliberately separated these powers for the sake of minimizing corruption. Administrative agencies do the opposite. They bring these powers together within inadequately checked bureaucracies that are by nature breeding grounds for corruption. The Welfare State has circumvented the intent of the framers by having all three constitutional powers exercised within a single entity, with the approval of the Court, Congress, and the President. "Law promulgated by the agencies now occupies an importance equal to statutory law in regulating every aspect of American society." 28 Such laws are not only promulgated by the agencies, but also enforced and adjudicated by the agencies. — The monarchy of King George has been replaced with an entrenched, monolithic bureaucracy. The former and the latter yield the same results – tyranny on both counts.

"The most fundamental challenge to the administrative state focused on whether this delegation of power is permissible." 29 The Court’s affirmative marks a seismic shift away from respect for natural rights. In cases like Field v. Clark (1892), United States v. Grimaud (1911), and J.W. Hampton Jr. & Co. v. United States (1928), the Court allowed Congress to delegate lawmaking powers to the executive branch. Under the pressure of the Great Depression, 30 this delegation of lawmaking power to the executive increased exponentially. The Court at first invalidated such delegation in cases like Schechter Poultry Corp. v. United States (1935). But after the court-packing scheme, the Court gave in to pressure and put their stamp of approval on the creation of such all-in-one agencies in cases like American Power & Light Co. v. SEC (1946) and Yakus v. United States (1944). In cases like Crowell v. Benson (1932) and Commodity Futures Trading Commission v. Schor (1985), the Court approved Congress’s delegation of adjudicative powers to administrative agencies.

People who lack scruples, or who are satisfied playing the money-making game by Hamiltonian rules, 31 run to lobby Congress about their pet issue. When Congress isn’t able to make a clear decision, it often delegates the lobbyist’s problem to an administrative agency. Then "the political clashes avoided by Congress [are] played out again in the context of the agency’s decision-making process. Agency decisions [are] not simply the result of applied expertise, but [are] in reality political decisions.". 32

The supreme Court continues to claim judicial review powers over administrative agencies. But the Court has also adopted the "rule of exhaustion". The rule of exhaustion demands that an aggrieved person exhaust all administrative remedies by pursuing all avenues of relief within the agency before the Court will grant judicial review. 33 So any aggrieved person who is convinced that such administrative agencies have no lawful right to impose regulatory takings or any other type of takings, is left with almost no lawful source of relief within government. — Since cases like Marchetti v. United States (1968) hold that taxation may be unconstitutional if it "infringes on a specific constitutional prohibition", like the Free Exercise Clause of the 1st Amendment or the 5th Amendment’s protection against self-incrimination, 34 it may be possible to avoid an administrative court on such grounds, assuming that one can find a sympathetic federal judge. But finding such judges is increasingly difficult as America optimistically assumes the ancient role of Tower of Babel redux.

In summary, Article I § 8 cl 1 is now a huge source of government-perpetrated bloodshed.


1"[T]here was nearly a breakup of the Philadelphia Convention over the question of how the several States should be represented in Congress. On June 28, 1787, Benjamin Franklin made a remarkable speech. . . .  Dr. Franklin turned his eyes to General Washington in the chair, and spoke" these words. "In concluding his remarks . . . , Dr. Franklin supposed that perhaps a clergyman in Philadelphia might be engaged to offer prayers each morning, then sat down. ‘Never did I behold a countenance at once so dignified and lighted,’ recounted Jonathan Dayton some years later, ‘as that of General Washington at the close of this address.’ . . .  Alexander Hamilton fretted about what the general public might think if they knew the convention was so desperate as to ask for prayers,–and Hugh Williamson was anxious because the convention had no money to pay a good reverend! As young men stumbled all over themselves, the proceedings were quietly adjourned for the day by George Washington, with courtly bow to Dr. Franklin, who nodded and smiled in response. What most students overlook is that Dr. Franklin’s speech . . .  was itself a most eloquent and beautiful appeal to nature’s God. The prayer was answered, and very shortly, as Dr. Franklin presented the Great Compromise to the Philadelphia Convention on July 5, 1787." — From Graham’s Principles of Confederacy, pp. 531-533.

"The circumstances surrounding the speech of Dr. Franklin, and the words he spoke, are set forth in a number of places, but the best accounts can be found in 5 Elliot’s Debates 253-255, URL:​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​274&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed005176%29%29%3A%230050145&​linkText=1; Tansill’s Documents 295-297; 1 Ferrand’s Records 450-452, URL:​cgi-bin/​ampage?​collId=​llfr&​fileName=​001/​llfr001.db&​recNum=​479&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0012%29%29%230010003&​linkText=1 (Madison’s Notes, June 28, 1787); and 3 Ferrand’s Records 467-473, URL:​cgi-bin/​ampage?​collId=​llfr&​fileName=​003/​llfr003.db&​recNum=​470&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0032%29%29%230030003&​linkText=1 (Letter of William Steele to his son, Jonathan D. Steele, September 1825, recapitulating the account of Jonathan Dayton)." — From Principles of Confederacy, p. 564, endnote 17. [hyperlinks added and punctuation changed]

2URL: ./0_2_0_Art_I_Sec_1-7.htm​#Art1Sec2Cl3.

3"Before 1895, the Court’s precedent suggested that only taxes on real estate and poll (or capitation) taxes were direct taxes subject to the requirement of apportionment. In Pollock v. Farmers’ Loan & Trust Co. (1895) [Pollock], however, the Court struck down the Income Tax Act of 1894 as an unapportioned direct tax because it taxed income that derived from real estate and personal property. This opinion ultimately prompted the 1913 adoption of the Sixteenth Amendment, giving Congress the power to impose income taxes without apportionment." — The Oxford Companion to the Supreme Court of the United States, p. 303, "Fiscal and Monetary Powers", by James May.

The crucial issue here might not be whether a tax is direct or indirect, but whether it is apportioned or "uniform". The form of taxation was evidently linked in the minds of the framers with the type of representation. As Jefferson put it, "[T]he people are not to be taxed but by representatives chosen immediately by themselves." (Selected Writings of Thomas Jefferson, p. 404, a letter to James Madison dated December 20, 1787). The Senate was designed originally to be composed of people who represented their respective States. The House of Representatives was originally designed to be elected through capitation and apportionment, so that they were immediate representatives of their constituents. In the case of Representatives, taxes would be collected through capitation and apportionment by each respective Representative. In the case of the Senate, a bill would be given to each Senator, and the bill would be the same, "uniform", for each State. — When Alexander Hamilton became the first Secretary of the Treasury, he collected revenues primarily through customs agencies that he created. The whole concept of revenue collection through representation was thereby sidestepped for most of the rest of American history.

4This is probable because the distinctions between law and equity were well known then, and were even recorded in the Constitution itself (See Article III § 2, URL: ./0_4_1_0_0_Art_III_Sec_2_Cl_1_(Intro).htm​#LawEquity.). In modern America, the distinctions between law and equity have become blurred, especially with the help of modifications to due process entailed in things like the Federal Rules of Civil Procedure. Though there may be some distinctions with respect to details, the basic impetus behind this Article III § 2 "Law" is the same as the impetus behind what we’re calling the jural compact, and the basic impetus behind this Article III § 2 "Equity" is like the impetus behind what we’re calling the ecclesiastical compact. — In other words "Law" in 18th century Anglo-American jurisprudence dealt primarily with gross and subtle delicts; and "Equity" dealt primarily (though not absolutely and rigorously) with contracts. See Article III § 2 cl 1, URL: ./0_4_1_0_0_Art_III_Sec_2_Cl_1_(Intro).htm​#LawEquity, for more on this.

5Compare consent with consent.

6See Articles of Confederation, Article III, URL:​hist/​artconf.html. It’s absolutely critical to understand that the Articles of Confederation have been incorporated into the Statutes-at-Large, URL:​cgi-bin/​ampage?​collId=​llsl&​fileName=​001/​llsl001.db&​recNum=127, and are therefore American positive law, even if in some ways superseded.

7See Articles of Confederation, Article VIII, URL:​hist/​artconf.html. It’s absolutely critical to understand that the Articles of Confederation have been incorporated into the Statutes-at-Large, URL:​cgi-bin/​ampage?​collId=​llsl&​fileName=​001/​llsl001.db&​recNum=127, and are therefore American positive law, even if in some ways superseded.

8"The debates in Philadelphia immediately relevant to the Common Defence and General Welfare Clause in Article I, Section 8 can be traced in 1 Elliot’s Debates . . .  253-254, URL:​cgi-bin/​ampage?​collId=​lled&​fileName=​001/​lled001.db&​recNum=​268&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed0011%29%29%230010001&​linkText=1, 264, 283, 284, 300; 2 Ferrand’s Records 176, URL:​cgi-bin/​ampage?​collId=​llfr&​fileName=​002/​llfr002.db&​recNum=​181&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1, 352, 408, 493, 495, 569, 594, 555 (Journal, August 6, 21 and 25, September 4, 10, 12, and 17, 1787); 5 Elliot’s Debates 378, URL:​cgi-bin/​ampage?​collId=​lled&​fileName=​005/​lled005.db&​recNum=​399&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28ed0051%29%29%230050001&​linkText=1, 451, 475-477, 506, 507, 536, 560; Tansill’s Documents 475, 580-581, 614-616, 659-660, 561, 706; 2 Ferrand’s Records 181, URL:​cgi-bin/​ampage?​collId=​llfr&​fileName=​002/​llfr002.db&​recNum=​186&​itemLink=​r%3Fammem%2Fhlaw%3A@field%28​DOCID​%2B@lit%28fr0022%29%29%230020003&​linkText=1, 355-356, 412-414, 497, 499, 569, 594, 655 (Madison’s Notes, August 6, 21, and 25, September 4, 10, 12, and 17, 1787)." — Principles of Confederacy, p. 320, endnote #2. [hyperlinks added and punctuation changed]

9Principles of Confederacy, p. 320.

10Carson’s Basic History of the United States, Vol. 5, pp. 61-62, quoting Henry Steele Commager, Documents of American History, vol. II, p. 326.

11Carson’s Basic History of the United States, Vol. 5, pp. 61-62, quoting James D. Richardson, A Compilation of the Messages and Papers of the Presidents (New York: Bureau of National Literature, 1897), pp. 569-70.

12"The Social Security program, begun in 1935, was the first of the social ‘entitlement’ programs of national scope—the foundation stone of the modern national welfare system." — The Oxford Companion to the Supreme Court of the United States, pp. 284-285, "Federalism", by Harry N. Scheiber.

13Carson’s Basic History of the United States, Vol. 5, pp. 61-62.

14See Article II § 2, URL: ./0_3_Art_II.htm​#AdministrativeProvinces.

15"Montesquieu taught that an extensive territory can be governed by a strong autocracy, but there is an alternative, which, if rightly constructed, can capture the benefits of both centralized and diversified government, viz., a well conceived association of states called a confederate republic, . . . . The notion so fascinated Hamilton that he jettisoned the imperial design he had proposed in Philadelphia, and in the Federalist he quoted at length from a translation of Montesquieu as describing principles which underlie the United States Constitution, including the precept that a confederacy of this kind ‘may be dissolved, and the confederates preserve their sovereignty.’ " — Principles of Confederacy, p. 51. Graham is here quoting Hamilton’s "Federalist Paper" #9 (See The Federalist Papers, p. 75.) — Also see Montesquieu’s Spirit of Laws, URL:​cm/​sol.htm.

16Whether it’s a "republic" or not depends entirely upon how "republic" is defined. In Anglo-American jurisprudence, it has never been defined with rigor. Here, we adhere to the standards set by the global covenant. So our definition of "republic" is rigorous. A prerequisite to the existence of a republic is the "consent of the governed". Another prerequisite is recognition of the radical distinction between jural and ecclesiastical compacts. The equation of "majority rule" with consent ignores the fact that majorities are imminently capable of committing bloodshed, thereby violating the consent that is foundational to our definition of "republic". So the equation of "republic" with a monolithic "democracy" is an inherently flawed and inadequate definition. — We mark our special concept typographically: republic.

17See Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#GreatDepressionCause.

18Carson’s Basic History of the United States, Vol. 5, p. 81.

19Carson’s Basic History of the United States, Vol. 5, p. 81.

20Find this quote in the online opinion via Schechter in "Cited Cases", and via a find in the opinion on "Extraordinary".

21The Oxford Companion to the Supreme Court of the United States, p. 757, "Schechter Poultry Corp. v. United States", by C. Herman Pritchett.

22Carson’s Basic History of the United States, Vol. 5, p. 88.

23Carson’s Basic History of the United States, Vol. 5, p. 89.

24Even more profoundly than the Commerce Clause, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#Article1Sec8Cl3, it has been fiat money and fractional reserve banking. Because the legal profession, the judiciary, and politicians in general, so poorly understand money and banking, adequately addressing these issues requires another book aimed specifically at them. Happily, such a book already exists. We heartily recommend The Creature from Jekyll Island.

25The Oxford Companion to the Supreme Court of the United States, p. 335, "General Welfare", by William Lasser.

26The Oxford Companion to the Supreme Court of the United States, p. 335, "General Welfare", by William Lasser.

27For a brief but more thorough treatment of the history of American "money", see "Memorandum of Law: The Money Issue", URL:​~becraft/​MONEYbrief.html. For a very thorough and understandable treatment of money and banking, see The Creature from Jekyll Island.

28The Oxford Companion to the Supreme Court of the United States, pp. 10-11, "Administrative State", by Nicholas S. Zeppos.

29The Oxford Companion to the Supreme Court of the United States, pp. 10-11, "Administrative State", by Nicholas S. Zeppos.

30See Article I § 8 cl 3, URL: ./0_2_1_2_Art_I_Sec_8_Cl_3.htm​#GreatDepressionCause.

31"Hamilton was not only a monarchist, but for a monarchy bottomed on corruption. In proof of this, I will relate an anecdote, for the truth of which I attest the God who made me. . . .  Some occasion for consultation arising, I [(as Secretary of State)] invited [Secretary of Treasury Hamilton, Secretary of War Knox, Vice President Adams, and Attorney General Randolph] to dine with me, in order to confer on the subject. After . . .  our question agreed and dismissed, conversation began on . . .  the British constitution, on which Mr. Adams observed, ‘purge that constitution of its corruption, and give to its popular branch equality of representation, and it would be the most perfect constitution ever devised by the wit of man.’ Hamilton paused and said, ‘purge it of its corruption, and give to its popular branch equality of representation, and it would become an impracticable government: as it stands at present, with all its supposed defects, it is the most perfect government which ever existed.’" — Selected Writings of Thomas Jefferson, p. 117, "The Anas".

32The Oxford Companion to the Supreme Court of the United States, p. 14, "Administrative State", by Nicholas S. Zeppos.

33The Oxford Companion to the Supreme Court of the United States, pp. 14-15, "Administrative State", by Nicholas S. Zeppos.

34See URL: ./0_8_0_Am_I_(Intro_-_Orig_Intent).htm​#AmendI and URL: ./0_A_0_Am_V_(Intro).htm​#FifthAm, respectively.