Throughout most of all the preceding parts of this examination of the Constitution, we have focused on the top-down manner in which powers are delegated. But according to the global covenant, social compacts (governments) operate lawfully only by consent. Consent can only be given by individuals. If groups of individuals operate as lawful groups, then they operate based on the consent or acquiescence of each individual within the group. So there is an inherent emphasis on a bottom-up approach to compact formation if the social compact is lawful from the perspective of the global covenant. The elemental component in this bottom-up social compact formation is consent. The consent or voluntary acquiescence of a given individual is like a grain of sand that contributes to the formation of a sandcastle. The bottom-up view of social compact formation focuses on the placement of each precious grain within the castle. In other words, the bottom-up view focuses on the rights of the grain of sand. 2 The top-down view focuses on the delegation of powers in building the sandcastle.
The last article in the original Constitution and Bill of Rights that pertains primarily to power delegation – rather than to rights protection – is the 10th Article in Amendment. It is logically a transition from top-down power delegation to bottom-up rights protection. 3
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.
The reserved powers doctrine of the 10th Amendment is about how power and authority are shared by State governments, the general government, and "the people". This is a doctrine that pertains to how an overarching social compact relates to subsidiary social compacts, and to individuals. — As we’ve made clear elsewhere, the general social compact is inherently secular. This is because it is designed to be an umbrella social compact that encompasses all religions. It is therefore limited, from a Biblical perspective, to whatever human laws apply to all people. From a Biblical perspective, the only human laws that apply to all people are those that are consistent with the global covenant. The mandate against bloodshed is the only term in the global covenant that is both applicable to all people, and a clear, divine, prescription of human law (because it is accompanied by a penalty to be executed by humans against humans). Because bloodshed can arise either ex delicto or ex contractu, but by no other means, this umbrella secular social compact must be limited to encompassing a jural compact (for the sake of enforcing and adjudicating cases ex delicto) and a strictly defined ecclesiastical compact (for the sake of enforcing and adjudicating secular contract disputes).
Before the War Between the States, the States may have existed in a sort of grey area between being strictly secular social compacts and religious social compacts. This is because most of the colonies started out as nominally religious social compacts, then became incrementally diverse religiously, and therefore more secular. Essentially, the federal judiciary recognized this transition, and expressed the recognition by implementing the incorporation doctrine. Now, by way of the incorporation doctrine, the States are also emphatically secular social compacts. In some respects, the general government now forces the States to incorporate the 1st Amendment. 4 But the States have become so religiously diverse that they should not need to be forced to abdicate their religious laws and customs, because they should instead recognize their secular status and accept it. Like the general government, the States are umbrella social compacts that cover all religions and belief systems. From the perspective of the global covenant, the States are secular social compacts, although they are admittedly jurisdictionally dysfunctional to an extreme. The States, like the general government, have a lawful existence when confined to laws that accord with those of a secular social compact.
Since county and municipal governments are little more than appendages of State governments, they are also inherently secular social compacts that exist under a State umbrella, in the same way that the States exist under a general umbrella. 5 Like the States and the general government, they are religiously diverse, and therefore must be understood to be secular social compacts.
Now it appears that those of us who are committed to keeping government contained within Biblical boundaries have some serious problems. As things stand now, from our perspective, all of secular American government is lawful only if it is a network of secular social compacts. But secular social compacts can say practically nothing about things like (1)who or what we worship; (2)when we worship; (3)how we do business; (4)how we educate our kids; (5)whether or not we use drugs, or tolerate people who do; (6)how we care for indigent and dependent people; and (7)countless other issues. These are all issues that have been traditionally governed by "police powers". Police powers traditionally were aimed at regulating health, safety, welfare, and morals. 6 Now, according to our understanding of the global covenant, there is a radical distinction between two different types of police power: (1)police power that enforces laws against bloodshed; and (2)police powers that "regulate" everything else. — Police power has always been an ambiguous term in Anglo-American jurisprudence, because of this failure to distinguish these two basic types of police power, 7 these two distinctly different kinds of social compacts, and the distinctly different jurisdictions that encompass delicts and contracts, respectively. One of the most basic products of the hermeneutical prologue is a clear, rigorous, and reliable definition of police power. For the sake of conformity to the hermeneutical prologue, we’ll call the first type of police power, bloodshed police power, and we’ll call the second kind of police power, religious police power.
According to our analysis of Scripture, all human beings inherently have authority to exercise police power with regard to bloodshed. But because of the complexity of enforcing against bloodshed, we are wise to be deferential in our use of this power – deferential towards specialists and experts who are ordained via their office to exercise police powers against bloodshed. Some things are so obvious that even a vigilance committee or a lone vigilante can execute justice regarding them. But to have a society that remains in dynamic equilibrium over a protracted period of time, it’s necessary to acknowledge that jurisdictional boundaries can get technical, and that such technicalia can demand expertise.
With it understood that secular social compacts have this strict subject matter jurisdiction that includes bloodshed and only bloodshed, it’s necessary to ask who, how, what, exercises police powers regarding all these issues that lie outside the narrow bloodshed jurisdiction? In other words, how are the standards of morality of any given religious community enforced, where such standards are in some respects outside the narrow scope of bloodshed? From our perspective, who enforces biblical standards of morality against issues that are outside the scope of bloodshed? Who, how, what enforces the standards of morality that are outside the jural, outside the narrowly defined ecclesiastical, and within the broadly defined ecclesiastical?
The 10th Amendment states clearly that "The powers not delegated to the United States by the Constitution . . . are reserved to the States respectively, or to the people". Since both the States and the general government are secular social compacts, from this Biblical perspective, their "powers" are limited to those delineated above. So all the other "powers" are "reserved . . . to the people". But how are these other police powers supposed to be executed by "the people"? Where are the organizational structures for doing so currently? Those of us who are Christians are surely not going to abandon our efforts at living by biblical standards of morality, thereby abandoning all non-secular police powers. Furthermore, we would be absurdly naïve to think that we can live by biblical standards of morality as lone rangers. We’re called to live in community, and we’re called to execute police powers within such community in order, among other things, to enforce biblical standards of morality. 9
Ever since the westward expansion started shortly after the Pilgrims landed, American Christians have not generally taken life in community with other Christians seriously. Instead, we have pretended that by giving police powers to governments increasingly distant from local control, that somehow some Bible-based religion common to all might develop. 10 But it never has. It should be obvious to all of us that that agenda is not God’s best. God’s best relates directly to strict observance of jurisdictions. God’s best relates to acknowledging that as long as local citizens are competent, local control of local affairs is radically superior to government by remote control. It relates to acknowledging that the framers were correct in assuming that in "a loose-knit system", "citizens as a body are both interested in, and for the most part competent to handle, local problems. When that assumption is valid there is little doubt that federalism . . . serves admirably to foster freedom without the sacrifice of order.". 11
The failure to rigorously observe jurisdictions is a huge source of bloodshed. We need to observe biblical standards of morality, but we need to do it in a way that doesn’t make us perpetrators of bloodshed. This entails a strict observance of the in personam and subject matter jurisdiction of the global covenant, as a mere starting place. By consent we need to build religious social compacts. In other words, we need to build local social compacts that are dedicated to operating by consent, and that are dedicated to exercising police powers within the social compact’s geographical jurisdiction, where these police powers regulate health, safety, welfare, morality, etc. 12
Since all the police powers that do not relate directly to enforcing against bloodshed crimes are "reserved . . . to the people", and are not lawfully within the immediate subject matter jurisdictions of the general, State, county, or municipal governments, and since precious few Americans are genuinely dedicated to living by biblical standards of morality, where does this leave all the other people? — They get to live as they choose, so long as they don’t violate property rights. Some, perhaps many, may live as libertines. But the libertine’s lifestyle is inherently self-destructive, and will probably not be chosen by many. Others get to choose their friends, values, behaviors, communities, etc., as they do now, except without the same safety, health, welfare, and morality safety-net that they now have via the Welfare State. So if anyone wants these things that the welfare safety-net offers, he/she needs to participate in some kind of religious social compact.
Are we going through this exercise because we intend to start a political movement to change America? — No! The higher the Tower reaches, the more prone to euphoria we get, and the greater the fall when Babel collapses. — It may be too late to reverse all the things that have gone wrong with America. Our purpose is not to create a political movement, although we’re not inherently opposed to that as a by-product. Our purpose here is to safeguard the universal church of Jesus Christ, to feed the hearts, minds, and souls of His people by expounding His Holy Covenants. Although His ways are as personal and intimate as anything anywhere (rather, moreso than any), His ways entail that His people compact themselves together in communities of individuals who share a mutual commitment to Him, and to His ways. In other words, our primary purpose here is to build Christian / Messianic Jewish social compacts that preserve the knowledge of His ways. If a political movement develops out of that, whose goal is the restoration of America to solid foundations, so much the better. But if not, then we will be convinced that America’s fate, at least in part, will be the same as Babel’s. Even if America falls, Jesus Christ / Yeshua Ha Meshiach will not. Regardless of what happens to America, there will be a remnant. Our responsibility as such a remnant is to sift through the ashes of this civilization to find everything worth saving, and to put such to use in our Christian communities as quickly as possible. By doing so, we will be preserving civilization within our religious social compacts. If God providentially chooses to make it so, then perhaps our work will help to eliminate the rot in America’s foundations, a healing in time to preclude its fall. If not, then we know He must have something for us that is providentially better.
From one perspective, a hierarchy like the Tower of Babel is being built through the original intent and subsequent implementation of this Constitution. From another perspective, this Constitution copies the hierarchical spheres of influence, the jurisdictions, that are clearly established in Scripture. Of course, neither one of these is entirely true. The original intent of the framers certainly included a significant attempt at establishing biblical jurisdictions, but it did so with more jurisdictional dysfunction than is tolerable in our time. The single characteristic that marks everything that has gone wrong with American government is this: It has failed to be conscious in all cases of the justification for government’s existence – its raison d’être and raison d’etat. In every case where American government adopted the nature of the Tower of Babel hierarchy, rather than the nature of Biblically sound jurisdictions, it has been because the justification for government’s existence that is obvious from a thoughtful chronological reading of Scripture was subordinated to political demands that subordinate Godly priorities to worldly priorities.
Now that we’ve made it clear how a face-value reading of the 10th Amendment can be consistent with the global covenant, we should spend some time looking at the framers’ original intent. Then we should get a glimpse of how the 10th Amendment has been implemented.
On June 8, 1789, James Madison fulfilled his promise to the Virginia ratifying convention of 1788 by presenting a "reserved powers" amendment to the general House of Representatives for debate. Elbridge Gerry led an anti-federalist faction that purposed to keep the general government practically as limited as the general government under the Articles of Confederation. 13 On August 18, 1789, Thomas Tucker, a member of Gerry’s faction, presented a modified version of Madison’s proposed amendment. Tucker’s version read like this: "All power being derived from the people, the powers not expressly delegated by this constitution, nor prohibited by it to the States, are reserved to the States respectively.". Madison objected to the anti-federalist’s rendition of his proposed amendment by claiming that it is "impossible to confine a government to the exercise of express powers". Tucker’s proposal was defeated. Immediately after its defeat, Daniel Carroll proposed appending "or to the people" to the end of Tucker’s version, with "expressly" removed. A few days later consensus was found about the present text of the 10th Amendment. 14 — According to the majority opinion of the framers, sovereignty was not lodged in the general government, or in the State governments, but in the people in convention. The general government was a functional compact that had limited police powers. State police powers were generally limited by each State’s Bill of Rights. All other powers were "reserved . . . to the people".
The big difference between the view of sovereignty implicit in the global covenant and the view of sovereignty implicit in the 10th Amendment is that governmental sovereignty – as far as the global covenant is concerned – resides within the consent or dissent of every human being within the government’s geographical jurisdiction. The framers’ view of sovereignty at least makes a genuine effort at acknowledging both consent and the compact theory as the source of sovereignty. According to a Biblical view of this federal system, the general and State governments are like public corporations that are created by the collective will of all the human beings within the given geographical jurisdiction who have capacity, and the powers of such public corporations are extremely limited. They are limited, specifically, to the powers of a secular social compact, and to whatever extent the federal system exceeds those powers, it is jurisdictionally dysfunctional. These are powers that the sovereign – the agreement of individual human beings – has chosen to share, on a limited basis, with such public corporations. The framers’ failure was in not understanding the importance of consent. Or more accurately, their failure was in not applying the "consent of the governed" principle found in the Declaration of Independence, in a way that was rationally and thoroughly consistent. In effect, according to the global covenant, sovereignty in human government lies in the individual (in the human sovereign), with regard both to government’s jural functions and its narrowly defined ecclesiastical functions. The failure of the framers to apply these principles rationally and thoroughly is the seeds that grew tares in the constitutional framework. 15
In 1791, even before the 10th Amendment was ratified, the question of how to interpret it became an issue to officials in the general government. Secretary of the Treasury Alexander Hamilton was trying to persuade President George Washington to support the creation of the Bank of the United States. The president asked Secretary of State Thomas Jefferson for his opinion on the creation of such a bank. "Jefferson described the Tenth Amendment as ‘the foundation of the Constitution’ and added, ‘To take a single step beyond the boundaries thus specially drawn . . . is to take possession of a boundless field of power, no longer susceptible of any definition.’" 16 Jefferson thereby interpreted the 10th Amendment as though "expressly" was written into it, and recommended against the formation of the Second Bank. 17 Jefferson thereby founded the strict constructionist school of constitutional interpretation. — Hamilton obviously opposed Jefferson in this. "Since Hamilton specifically rejected any claim that Congress could interfere in the internal affairs of a state – such concerns as the governance of the health, morality, education, and welfare of the people – his stand was not an argument against the Tenth Amendment, but against its necessity." 18 Hamilton claimed that the 10th Amendment, as written, without "express", was implicit in any definition of a republic. He therefore claimed that the 10th Amendment was unnecessary, but harmless. He thereby founded the loose constructionist school of constitutional interpretation. — Hamilton won both the president and Congress over to his view. 19
The big problem with Hamilton’s view is that it fails to set limits on Congress. If Congress desires to pass laws that blow the general government into a police state, loose construction fails to put adequate restraints on Congress to prevent this. If the flaws in the original Constitution that are cited above were remedied, then strict construction would work fine, assuming that local people are competent to perform the jural and ecclesiastical functions. — Under the original intent, the framers of both schools were clearly using the 10th Amendment as a shield against assuming jural responsibilities with regard to slavery. Since, from the beginning, the federal compact was a secular social compact, jural functions were basic to its existence. But the 10th Amendment guaranteed that the general government would not have original jurisdiction over slavery. But every human being is mandated by God to execute bloodshed police powers. The fact that the framers refused to assume this responsibility with regard to slavery indicates that the general government originally had practically NO police powers with regard to the States. It indicates that local people in slave States were incompetent at fulfilling the jural functions with respect to slavery. It indicates that the framers and early officials of the general government were to slavery what Cain was to Abel after the murder. In effect they generally shrugged with blood still on their hands, saying, "Am I my brother’s keeper?".
According to a reasoned application of the global covenant – because all general, State, and local governments in America are secular social compacts – all general, State, and local governments have full-blown bloodshed police powers, and extremely limited religious police powers – where the latter are limited to adjudication and enforcement of secular contracts. All other religious police powers are reserved to the people. — The general government was unlawful at the beginning to the extent that it refused to assume full-blown bloodshed police powers. The general government is unlawful at the beginning of the 21st century because it assumes practically ALL police powers, thereby ignoring the consent that is a prerequisite to religious police powers, and thereby subjecting ordinary people to unlawful duress. 20
Supreme Court jurisprudence has followed the Hamiltonian agenda to its logical conclusions. In McCulloch v. Maryland (1819), the opinion of Chief Justice John Marshall clearly followed Hamilton’s lead in defending the Third Bank. 21 He claimed, like Hamilton, that "the police power had been reserved exclusively to the states", 22 but he failed, like Hamilton, to acknowledge that the loose construction of the Constitution left the general government wide open to evolution into a police state. Like Hamilton, Marshall defended his inclination towards national consolidation by claiming that he had done nothing to usurp Reserved Powers.
Throughout Marshall’s tenure on the Court, he continued to pay lip-service to State’s rights, while simultaneously building the consolidated nation. For example, in Marbury v. Madison (1803), he claimed the supreme Court had the power of judicial review, as though the supreme Court were the ultimate sovereign over the general government. Then in Barron v. Baltimore (1833), he claimed that the Bill of Rights does not apply to the States, thereby fortifying the claims of State’s rights advocates. Even so, Marshall’s position regarding the degree to which State sovereignty and State police power were curbed by other provisions of the Constitution – like the Commerce Clause, the Contract Clause, the Supremacy Clause, and the Guarantee Clause – was not as congenial to the State’s rights advocates. Marshall laid the foundations for use of the Commerce Clause to build the present American consolidated police state. He did this with decisions like Gibbons v. Ogden (1824). 23
Under the 10th Amendment viewed from the perspective of the global covenant, law enforcement officers of the general government should be committed to being aids and assistants to State law enforcement officers. In other words, in bloodshed subject matter within State and local geography, local and State officials generally have original jurisdiction, and such original jurisdiction needs to be honored by the general government. This is true of the federal system even when it’s recognized that each level of government in the federal system consists of secular social compacts.
Even though John Marshall cracked open Pandora’s Box by establishing the Commerce Clause as the mechanism readily available to loose constructionists for eventually establishing the commercial police state, strict construction was predominant between the presidencies of Jefferson and Lincoln. Thus, the general government refused to apply the Bill of Rights to the internal affairs of the States, even in the name of Guaranteeing a republican form of government; and it construed the Commerce Clause, the Contract Clause, the Supremacy Clause, and the Guarantee Clause in favor of the States, largely allowing the States to exercise whatever police powers the States might choose. "Thus, from the presidency of Jefferson to that of Abraham Lincoln, the consensus was that Jefferson had been right in calling the Tenth Amendment the foundation of the constitutional union." 24 During this period, as now, police powers remained largely undefined, evidenced by the fact that in Gibbons v. Ogden (1824), John Marshall claimed that the police powers of the States were "that immense mass of legislation, which embraces every thing within the territory of a State, not surrendered to the general government" (p. 202). Marshall’s successor as Chief Justice, Roger B. Taney, held a similar opinion in the License Cases (1847). To Taney, police powers were "nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions" (p. 582).
After the War Between the States, the axe was laid to the root of the confederate republic tree in Texas v. White (1869). In it Chief Justice "Chase’s Texas v. White opinion assumed what ought to have been proved, that correct was the abolitionist Republican theory about what happened to seceding states and their financial obligations. Its oft-quoted sonorous sentence – ‘The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States’ (p. 725) – explains little and strictly speaking is false. Most Constitutional provisions ‘look’ neither to, nor away from, either indestructibility or destructibility.". 25 Texas v. White "was the epitaph for the ‘compact theory’ that so long had been championed by states’ rights advocates in the antebellum era." 26
The 10th Amendment "was virtually suspended for several years after" the War Between the States – at least as far as secessionist States were concerned. Congress established military rule and pretended that the southern States were eternally part of the Union, and utterly devoid of the privileges and immunities that accrue to States within the Union. Congress did both of these at the same time, thereby exercising a diehard commitment to brutal insanity. It was a breed of insanity reminiscent of all men are created equal, and some men are slaves. Congress essentially exercised plenary police powers over these secessionist States for several years. — Although the 14th Amendment would have far-reaching implications for the national consolidation, when it was ratified, it had little impact on the federal structure, or the 10th Amendment.
At the same time that Congress was ruling southern States by martial law, the supreme Court was – in spite of Texas v. White – making marginal attempts at restoring federalism. For example, "In United States v. DeWitt (1869) Chase’s Court did what no antebellum Court had done – voided a congressional statute as intruding unconstitutionally into the ‘sphere’ of state police power.". 27 Congress had made the buying and selling of a highly flammable lamplight oil illegal. The supreme Court exercised its power of judicial review and nullified the statute. From the perspective of the 20th century Welfare State, this intrusion into presumed State police powers is miniscule.
In 1878 the supreme Court started waffling on its fragile commitment to Reserved Powers. Congress had passed the Comstock Act in 1873. This act made sending pornography through the mail illegal. In Ex parte Jackson, the Court confirmed Congress’s Act. This act was an obvious attempt at establishing biblical standards of morality in the operation of the general postal system. To those of us who are Christians, pornography is ruinous and should not be tolerated within our religious social compacts. But enforcing biblical standards of morality through a secular social compact is exercise of a remedy that’s worse than the disease. From the perspective of the global covenant, (1)the Comstock Act is based on the general government’s ownership of the postal system – an ownership that violates the fact that the general government is a secular social compact; and (2)the Comstock Act has the general government use its presumed rights as owners of the postal system to limit what goes through the mail. — The general government has no business owning and operating businesses because doing so violates the legitimate jurisdiction of it’s declared secular nature. The general government has no business attempting to establish biblical standards of morality for the same reason. So in passing the Comstock Act the two "political branches" of the general government were wrong. Then the supreme Court was wrong in Ex parte Jackson. 28
During this era, even though the supreme Court was making inroads into the eventual elimination of the 10th Amendment, through decisions like Ex parte Jackson, the supreme Court was also sustaining the 10th Amendment with decisions that allowed ordinary citizens to continue imposing the "badges and incidents of slavery" on ex-slaves, all in the name of the 10th Amendment. The Court did this explicitly in the Civil Rights Cases (1883), which nullified the Civil Rights Act of 1875 on the basis that the latter was "repugnant to the Tenth Amendment". 29 Later during this era of recuperation from the War Between the States, the Court invalidated several State police powers based on the "prohibited by it to the States" clause. But other than the martial law of Reconstruction, the Court almost never allowed Congress to exercise a police power on its own authority. 30
The biggest problem that faced the united States after the War Between the States was the evolution of ex-slaves and their progeny from the status of someone else’s property, disqualified by convention from citizenship, etc., into full citizenship. This was necessarily a process of integration into the population that already (presumably) had such full privileges and immunities. At the same time that integration needed to take place, the 1st Amendment right "peaceably to assemble" was implicitly based on consent, which meant that people assembling themselves into businesses, churches, recreational organizations, etc., was largely outside the scope and purview of the general government, as long as the general government honored the 10th Amendment. So the 10th Amendment, under such circumstances, was an impediment to such integration because it allowed white racists to discriminate against blacks. Again, this problem derived largely from the priorities of the Radical Republicans. To legally circumvent the 10th Amendment for the sake of integrating the ex-slave population, Radical Republicans’ priorities needed to be different, namely, (1)to acknowledge that secession is legal, (2)to amend the Constitution to eliminate slavery and all its legal accoutrements, (3)to invade the Confederacy for the sake of terminating its institutionalized bloodshed, (4)to make such slave States territories overseen by the general government until those social compacts were reformed, and (5)then and only then allow such social compacts to reenter the Union as States. 31 Under these circumstances, the 10th Amendment would not apply to these secessionist States, and would not be such an impediment to such integration. Because of the general government’s failure to address secession properly, integration is a problem even to this day. — Integration needs to be voluntary. Integration forced by the general government is a cheap substitute for what should have been done via the War Between the States. Integration happens naturally in the church of Jesus Christ when the church is not impeded by theologies that create anti-Biblical divisions.
Instead of addressing the integration process constructively, the supreme Court adopted the separate-but-equal doctrine in Plessy v. Ferguson (1896). It looked the other way as the southern States used police powers appropriate only for religious social compacts to enforce "Black Codes" and "Jim Crow" laws. It refused to intrude on the States largely based on the Reserved Powers doctrine of the 10th Amendment. — Early in the 20th century, the supreme Court started assuming police powers that had previously been the exclusive domain of the States. It did not do this for the sake of protecting human beings against bloodshed, but for the sake of assuming powers over commerce. For example, in 1895 Congress passed a law that banned the sale of lottery tickets in interstate commerce. The supreme Court sustained this law in Champion v. Ames (1903). The covert purpose of this act was to establish biblical standards of morality by putting restrictions on gambling. 32 Gambling restrictions had previously been a police power exercised exclusively by the States. Congress assumed police powers over such commerce for the sake of terminating it. The general secular social compact thereby assumed police powers that rightly belong only to religious social compacts. — In the same way that the general government arrogated police powers in Champion for the sake of "morals", the general government arrogated police powers over "health" via McCray v. United States (1904). McCray sustained an act of Congress that put an excise tax on oleomargarine. In the same way that the general government had used "protective tariffs" to protect domestic products and businesses, the general government was using an excise tax for the sake of exercising a dubious police power over "health". 33
In cases like Champion and McCray, the taxing power is being used as a police power, and is merely disguised as a revenue procurement power. This police / taxing power is being used to engineer society in a way that only religious social compacts should be engineered. It is therefore in effect a violation of the Establishment Clause of the 1st Amendment. The solution to this problem is for all secular social compacts to be restricted in the way that they collect taxes. Because taxation that is not consensual is theft, practically all precedent with regard to taxation must be dumped. On its face, that appears to be a de facto defunding of all the secular social compacts in the united States. However, wherever genuine Christian religious social compacts can be found, requirements that members thereto pay taxes to jural and ecclesiastical compacts encompassed by such religious social compacts should also be found. And those jural and ecclesiastical compacts should practice revenue sharing with whatever secular social compact encompasses the religious social compact. Likewise, whatever secular social compact is encompassed by another secular social compact (as, for instance, a county is encompassed by a State), should practice revenue sharing towards the encompassing secular social compact. This way, as long as genuine Christian religious social compacts exist, secular social compacts should not go unfunded. Also, there should be a strict linkage between revenue collection and spending, so that revenues are spent strictly to pay for bloodshed police powers. — The regulation of commerce has been almost totally misconstrued. No secular social compact should have any such religious police power.
Early in the 20th century, the general government was using both the Commerce Clause and the Taxing and Spending Clause 34 to exercise police powers that rightly belong only to religious social compacts. The general government had been trying to walk a tightrope between the 10th Amendment, on one side, and the Commerce and Taxing and Spending Clauses, on the other. In spite of the fact that Congress had passed statutes like the Interstate Commerce Act and the Sherman Antitrust Act well before the 20th century, the supreme Court didn’t really start going along with Congress’s agenda of arrogating police powers until early in the 20th century. More such acts by Congress that were supported by the supreme Court were the Pure Food and Drug Act (1906), the Meat Inspection Acts (1906 and 1907), and the White Slave Traffic Act (1910). These were each based on the Commerce Clause, and the Court sustained them against arguments that they violated the 10th Amendment. Such congressional acts that were based on the Taxing and Spending Clause were the Phosphorus Match Act (1912) and the Harrison Anti-Narcotics Act (1914). These were also usurpation by the general government of police powers, where such usurpation faced arguments that they violated the 10th Amendment. 35 — In some respects, Congress was right in taking such powers away from the States, because the States are secular social compacts that should not have such powers. But the general government is also a secular social compact. So such police powers are "reserved to . . . the people", not to the States, and not to the general government. The 10th Amendment arguments against these acts of Congress were almost entirely State’s rights arguments, not "reserved to . . . the people" arguments.
Early in the 20th century, the general government was not only using the Commerce Clause and the Taxing and Spending Clause to exercise religious police powers, but it also started supplying "grants-in-aid" to the States to do the same. Any authority exercised by officials of the general government to spend such taxes is exercise of religious police powers. — "Congress began to vote grants-in-aid to the states for various purposes, ranging from the prevention of forest fires to providing medical care for expectant mothers." 36 One of these grants was challenged on 10th Amendment grounds in Massachusetts v. Mellon (1923). The Court sustained the grant, claiming that "the statute imposes no obligation, but simply extends an option which the state is free to accept or reject" (p. 480). The Court failed to link taxing and spending, and was therefore blind to the "obligation", even the bloodshed, it imposes on tax payers. The erosion of the 10th Amendment and State’s rights, as well as the powers "reserved to . . . the people", continued. 37
Because of the way property rights are implicitly defined in the global covenant, the definition of property is dependent upon, and directly linked to, the definition of police powers. The global covenant implicitly posits primary property, which is one’s ownership of one’s own physical body (not someone else’s); and secondary property, which is one’s ownership of physical objects external to one’s body, including land. In ancient jurisprudence, this linkage of the concept of property to primary and secondary property and police powers was sometimes recognized. Implicit in this ancient definition is the inclusion of "civil liberties" as a subset of property. — In Gilbert v. Minnesota (1920), Justice Brandeis wrote a dissenting opinion in which he indicated his inclination to believe that the "life, liberty, or property" referenced in the 14th Amendment might protect "civil liberties" as well as property rights. "That argument began to take on substance when Justice McReynolds, in Meyer v. Nebraska (1923), struck down a state law . . . . Liberty, McReynolds declared, went beyond freedom from bodily restraint to include ‘those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men’ (p. 399).". 38 — The position of the global covenant is that civil liberties ARE property rights. Sometimes the supreme Court can act like it knows this. Because of the linkage between property rights and police powers, the enforcement of the 10th Amendment is directly linked to the definition of property rights.
As we’ve discussed elsewhere, the structure of the federalist system went through radical changes during the 1930s. The Social Security Act established the first entitlement program administered by the general government. It is still "the foundation stone of the modern national welfare system". 39 Also, "Agriculture became a federally managed sector; the Wagner Act nationalized labor-industrial relations policy; and for the first time in American history Congress enacted wages and hours legislation for the general work force – a measure upheld by the Court in a stark abandonment of the doctrines it had formerly maintained, thus validating federal preemption of a key regulatory area. In addition, a vast array of new regulatory functions and agencies similarly preempted vital segments of regulation affecting communications, transportation, and finance. Taken together with the relief, employment, experimental community, medical and other social programs of the New Deal, these initiatives amounted to a massive centralization of agenda setting, financing, and administrative decision making . . . .". 40 In other words, the government in the united States ceased almost entirely to be federal, and became monolithic instead. The 1930s saw the culmination of the premise set by Alexander Hamilton and other loose constructionists, specifically, the national consolidation and conversion of States into administrative provinces. There was no longer any de facto constitutional limit on the nationalization of authority. "The Court’s decisions as to congressional authority under the spending power and the taxing power, taken together with new Commerce Clause doctrine, amounted to a broad – virtually plenary – federal police power." 41
The total rejection of the 10th Amendment is essentially arrogation by the general government of all police powers. By claiming that the general government has boundless police powers, the general government is essentially claiming that it is a religious social compact, rather than a secular social compact. If the general government is a religious social compact, then we’re inevitably led to wonder precisely what religion is being imposed, top-down, on those of us who are conscientious dissenters against its claims to absolute sovereignty. — During the 1930s and 40s, the 10th Amendment became a nullity. Those of us who care about rights may not care about the loss of State’s rights, because the States have gained a well-deserved reputation for abusing rights. They therefore don’t deserve extensive police powers. But the fact that the powers "reserved to . . . the people" have become a nullity with the demise of the 10th Amendment should strike terror into anyone who cares about rights.
After Roosevelt’s court-packing plan, the supreme Court justices acted like they all had rings in their noses allowing Roosevelt to lead them passively along with his agenda. For example, in Mulford v. Smith (1939) the Court totally abandoned opinions it had established earlier that were based on the 10th Amendment. In United States v. Darby (1941), Chief Justice Harlan Fiske Stone claimed the 10th Amendment was "but a truism", a mere declaration of intergovernmental relationships that lack significant importance. 42 In other words, after Darby, the 10th Amendment merely declares that States are administrative provinces.
From the perspective of the global covenant, if Congress ignores the 10th Amendment in order to exercise bloodshed police powers that are being neglected by State or local jural societies and strictly defined ecclesiastical societies, there is no serious problem, because somebody must do that kind of dirty job. But if Congress ignores the 10th Amendment for the sake of exercising religious police powers, regardless of its motive, it is making a serious mistake, and committing bloodshed in the process. This is because a prerequisite to religious police powers is prior consent. Because the general government is a secular social compact, there’s no way for it to assume prior consent to religious police powers. It cannot assume consent. It must be certain. Otherwise it’s bloodshed.
This repudiation of the federal system by way of the establishment of a monolithic national government is the logical outcome of a legal philosophy that started getting popular in the early part of the 20th century, and was part of some of the political movements of that time. "The New Deal can be seen, in part, as the legislative analogue of legal realism, with its emphasis not on abstract theory but on fact: that is, did a program work or not." 43 Legal realism – this outgrowth of American jurisprudence that was/is compatible with the New Deal – is essentially a final abandonment of the legal principles that were foundational to the formation of the united States. It is a final abandonment of the compact theory of government under the pretense that the latter is just so much idealism. It utterly fails to recognize that the compact theory is built on consent. It treats consent as negligible, in the same way that it treats human beings as little more than apes. It is pragmatism devoid of reason, and ignorant of context. It is the abandonment of any reasonable moral framework through which to view and understand American jurisprudence. In place of a moral framework, legal realism adopted a "whatever works" approach to jurisprudence. The problem with this centers around the need to discover a definition of "works". Who defines what’s functional and what’s not? A consent-oriented moral framework supplies such a definition automatically. Legal realism has no inherent moral framework, and therefore has no inherent mechanism for evaluating what works. The result is ad hoc definition of the law, and of what works and what’s functional. The cumulative effect of such ad hoc definitions is that the law becomes arbitrary and capricious. It becomes rule by fiat, under a guise of legality. It makes all government colorable. — Jurisprudence is composed of law and fact. Legal realism is the abandonment of law under the pretense that fact will suffice as long as it’s supplemented by some kind of arbitrary rule making.
After the legal revolution of the 1930s and 40s, by the middle of the 1950s, property rights were defined so that there was a split between property rights and "individual liberties". Property rights were something that the general government claimed it had power and authority to control. As a consolation prize, the American people were given "constitutional protections of life and liberty". 44 But this split between "property rights" and "individual liberties" is bogus. It’s based on unscriptural, unsound, irrational definitions of each. These lousy definitions probably have their roots in slavery or feudalism, or at least in confusion about ownership by one person of other people. According to slavery, people ARE property. When people get contractual relations confused with their notion of ownership, they’re likely to believe that they own the other person, when in fact they merely have a contract with the other person. Only delusions of grandeur can lead Person A to believe he deserves the involuntary servitude of Person B, unless Person B has committed bloodshed and therefore deserves incarceration, death, or involuntary servitude. — In many respects, this confusion regarding "property rights" and "individual liberties" is at the crux of all our problems. — Do you own your body? 45 Can you exercise "individual liberties" without owning your body?
After World War II, a number of factors coalesced to get the "civil rights movement" rolling. It finally became absolutely essential to genuinely integrate the progeny of the slaves into full citizenship. Since World War II, the general government has finally taken responsibility for correcting the race-oriented problems that should have been high priority to it before, during, and immediately after the War Between the States. The southern States should never have been readmitted to the Union as long as these problems persisted in the ex-slave States. The general government should have used its bloodshed police powers to make sure the rights of ex-slaves and their progeny were not being institutionally violated, as they were through the "Black Codes". Such institutionalized bloodshed should have been totally eliminated before the ex-Confederate territories were re-admitted as States. But the northern States lacked the wisdom and backbone necessary to carrying that kind of agenda forward. As a result, after the general government had arrogated ALL police powers, it imposed such corrections on all the States as though all the States are nothing more than territories. Part of the problem is that the States are inherently secular social compacts, but operated largely, from the beginning, as though they were religious social compacts. The pretense that they are religious social compacts allowed the supreme Court – in cases like Plessy v. Ferguson (1896) – to approve racial segregation via the so-called "separate but equal doctrine". The southern States essentially exercised religious police powers as though they were capable of both having freedom on one hand, and imposing religious police powers on people who didn’t consent to them, on the other. This is exactly the same problem that the general government has, now that it has plenary police powers. 46
The first step towards genuine integration is not entitlement programs or coercing businesses by instructing them in who their customers will be. The first step towards integration is making certain that bloodshed is not being perpetrated. This is done by executing retribution against perpetrators. To procure justice in the slave States, the northern invaders should have executed retribution against slave owners. Since they did not do that, the whole nation was guilty of being accessories to bloodshed. Now, fourteen decades later, the first step towards integration is still the same: to make certain that perpetrators of bloodshed receive retribution. It is absolutely NOT having the monolithic government execute bloodshed against relatively innocent people.
During the 30s and 40s, there were several cases that laid the legal foundations for the unfolding of the still-ongoing "civil rights movement". Among these cases was (1)Missouri ex rel. Gaines v. Canada (1938), "where Chief Justice Hughes . . . startled the South by declaring that if the southern states wanted to keep segregated schools, then it had to make them equal as well"; 47 and (2)Justice Stone’s Carolene Products footnote in 1938 in which he "called for heightened scrutiny of race discrimination". 48 — As though we are all under martial law, the denial of property rights has gone hand-in-hand with the guarantee of "civil rights". The more control of commerce the general government has, the more it can pretend to guarantee "civil rights" to those who have been abused under the old system. — In Wickard v. Filburn (1942), the supreme Court expanded its commerce clause doctrine to include practically any conceivable activity. 49
In Shelley v. Kraemer (1948) and Hurd v. Hodge (1948) the supreme Court continued its application of its plenary Commerce Clause doctrine by ruling covenants illegal because such covenants refused to allow African-Americans to own houses in European-American neighborhoods that were covered by such covenants. Anyone who enters into such racial covenants inevitably has a streak of moral stupidity that would gag practically anyone else who genuinely believes that all people are created in God’s image. Even so, anyone with half a brain can see that the supreme Court is using a grandiose conception of the Commerce Clause that relegates the Contract Clause to oblivion. 50 Why shouldn’t we allow the stupid to associate exclusively with the stupid, if that’s what they want? Let them have their stupidity. Let them also know that if they perpetrate bloodshed, they will not get away with it. But entering into an exclusive covenant, by itself, to exclude people smarter than oneself, is not bloodshed. The fact that restrictive covenants were used by racists to try to set up religious social compacts based on stupidity – rather than on a rational reading of Scripture – doesn’t mean that all restrictive covenants are wrong. Covenants are nothing more than a type of contract. As such, they can be good or bad, or some mixture of the two, based upon what they are intended to do, and how they are structured and implemented.
Another race-case that came before the supreme Court in 1948 was Sipuel v. Board of Regents of the University of Oklahoma. Oklahoma had denied Ada Sipuel admission to the State funded law school. The Court demanded that it admit Sipuel. — The root problem with this is not that Oklahoma denied Sipuel admission based on race, or that the Court demanded that Oklahoma admit Sipuel. The root problem was, and is, that Oklahoma, an inherently secular social compact, is running schools, and running schools is exclusively a function of religious social compacts. — If the case was about Oklahoma’s refusal to hire an African-American as a State trooper because of his race, this would merit interference by the supreme Court on the African-American’s side, based on the Equal Protection Clause. But in the Sipuel case, if the supreme Court insisted on getting involved, it should have mandated that Oklahoma sell its schools in public auctions. That would have been consistent with the fact that both States and the general government are inherently – perhaps until the final Judgment – secular social compacts. — Similar cases came before the supreme Court in McLaurin v. Oklahoma State Regents (1950) and Sweatt v. Painter (1950). In the latter case, which involved the University of Texas, the Court’s decision implied that "separate" might never be "equal". No kidding! In Brown v. Board of Education (1954) the supreme Court finally overruled its "separate-but-equal" decision in Plessy v. Ferguson (1896). 51
It became clear in the 1950s and 60s that the supreme Court’s intention was the dismantling of Jim Crow through racial integration. But as long as property rights are not properly defined, and the compact theory of government is rejected, we have not recovered from the War Between the States, and all authoritarian efforts at integration will fall short of success. It is more of the same syndrome: (1)Government creates or allows the creation of a problem by abusing or allowing the abuse of property rights. (2)Government intentionally or unintentionally misidentifies the cause of the problem. (3)Government creates a pseudo-solution, thereby creating an all-new and different problem. (4)Government repeats this loop until the entire society is tied in such knots that it will inevitably implode.
In 1957, in obedience to the Brown decision, the Little Rock school board opened their Central High School for integration. The Arkansas governor blocked the integration with the National Guard. Eisenhower sent "federal" troops to enforce the desegregation order. Black students were able to finish the school year at Central High, but at the end of the school year, Little Rock officials requested a postponement of the desegregation process from "federal district court". The court granted the request. The NAACP appealed this delay in desegregation to the supreme Court in Cooper v. Aaron. The supreme Court found in the NAACP’s favor, revoking the lower court’s grant of delay. Given the history of southern racists using their social compacts to abuse rights, it’s almost certainly a good thing that the decision in Cooper v. Aaron repudiated the delay in integration. But in the Cooper opinion, the supreme Court made a claim to supremacy that deserves special attention, especially in light of the 10th Amendment. The Court claimed that "the federal judiciary is supreme in the exposition of the law of the Constitution.". 52 This question of whom the final interpreter of the law (including the Constitution) is, reduces to the question of whom the sovereign is. Because no one branch of government or society ever has a monopoly on righteousness, no one branch of government or society should ever be granted tyrannical authority, including final authority to ascertain the law. 53
In the early 1960s there were several cases in which the supreme Court totally ignored the 10th Amendment in order to venture into State politics. Baker v. Carr (1962), Wesberry v. Sanders (1964), and Reynolds v. Sims (1964) are sometimes called "reapportionment cases". In these cases, there were two basic issues: (1)how districts were drawn for the election of state legislators; and (2)how districts were drawn for the election of members of the House of Representatives of the general government. In Baker v. Carr, the supreme Court held that Tennessee was denying its citizens equal protection by neglecting to reapportion such electoral districts for over six decades. In Wesberry v. Sanders, the supreme Court actually got into redistricting, whereas it delegated that responsibility to a federal district court in Baker. In Reynolds v. Sims, the Court mandated that every bicameral legislature in the States must be apportioned by population. This forced modification of State electoral procedures is not only another violation of State’s rights. It is also another deviation away from a confederate republic towards a consolidated nation. There’s no doubt that the southern States were racist pits, and needed correction. But the procedures used in such correction need to be lawful. The apportion by population mandate was another step towards national consolidation, in the same way the 17th Amendment was a step away from the compact theory of government towards a consolidated nation. It un-does on a State level the "Great Compromise" that allowed the formation of the Constitution in the first place. When "the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process". 54 This is precisely what George Washington warned us not to do:
[I]f in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly over-balance in permanent evil any transient or partial benefit which the use can at any time yield. 55
In practically all of the consolidation associated with this reapportionment, the supreme Court was doing what should have been done a hundred years earlier. It should have been done to the south while the south was territorialized, and not a full member of the Union. But it was far too important to the north’s political and commercial leaders to get the south back into the Union, with imperial motives. Freeing slaves and executing retribution against slave owners were low priority to them.
The other major change in supreme Court jurisprudence that has happened since the end of World War II is incorporation of most of the Bill of Rights, making the Bill of Rights applicable to the States. 56 While this may look on its face like a violation of State’s rights, it is in fact a protection of "powers . . . reserved . . . to the people". But the supreme Court in recent decades has been consistently attempting de facto un-incorporation – a very dangerous process.
In 1976, in National League of Cities v. Usery, the supreme Court ignored the fact that it had earlier held that the 10th Amendment was a nullity, by issuing the opinion that "application of the Fair Labor Standards Act to state and local government employees was a violation of the amendment". 57 This decision stirred up so much trouble for the Court that it reversed itself nine years later, in Garcia v. San Antonio Metropolitan Transit Authority (1985). As we’ll see when we examine the 1st Amendment, the supreme Court is still making some rather pathetic attempts at reviving the 10th Amendment.
Without a major overhaul to our whole system of jurisprudence, it’s not likely that the 10th Amendment can be revived. Given that States, like the general government, are secular social compacts at their core – and are unlawful to the extent that they deviate from this secular calling – the loss of the doctrine of State’s rights is nowhere near as serious a problem as the loss of "The powers . . . reserved . . . to the people". This is because "The powers . . . reserved . . . to the people" include, above all other powers, the power to create, maintain, and operate religious social compacts. Our whole nationally consolidated social superstructure is built on the assumption that such religious social compacts are negligible, superfluous, and silly. But Christians are called by God to live in compact with one another. We are called to be covenant-keeping people. To relegate the religious social compact to oblivion is to relegate Biblical Christianity to oblivion. The general government and the States are unlawful at the beginning of the 21st century because they assume practically ALL police powers, thereby ignoring the consent that is a prerequisite to religious police powers, and thereby subjecting ordinary people to unlawful duress.
Clear definition of police powers is crucial to lawful delineation of relative subject matter jurisdictions of general and State governments, and the distinction between those powers and those that are reserved to the people. But the supreme Court has no such clear definition. They allow the existence of non-consensual police powers, and that allowance turns their entire legal system into a glorified briar patch.