What IS Federal Jurisdiction?  

 Questions have been raised regarding exactly what the federal government can and can not legitimately do within the framework provided by the Constitution for the United States. Rather than attempt to deal with each of the items that were raised individually, be they child custody cases, changes in laws relating to terrorism, and a host of other items, I think that it will be easier to start with the big picture of just what the government can do and then work from there. 

The main sources that I will be using throughout this exposition will be the Constitution itself and the Federalist Papers. As there are several different editions of the Federalist Papers which could be used for this, I have decided to keep things simple and go with the one that most people are likely to find readily available. 

This particular version has been edited by Clinton Rossiter and published by Mentor Books. The ISBN is 0-451-62541-2, and the book is relatively inexpensive. It only cost me $5.95 when I purchased it several years ago. When specific page number references are given for quotations from the Federalist, this is the book they are to be found in. 

It should be noted that there is some disagreement as to exactly who authored some of the various numbers of "The Federalist" when they appeared. Alexander Hamilton, James Madison and John Jay all had a hand in writing the different essays. To keep things simple, I will use the same attributions of authorship that Rossiter did. 

In order to understand the powers of Congress, it is necessary to look at Article I section 8 where these powers are spelled out. As it will be made clear in the quotations which follow, these specific areas were to be the only areas in which Congress could exercise power. For purposes of this essay in trying to determine where the federal government may be able to legitimately have jurisdiction over certain criminal activities, we will only look at those clauses which have some potential relevance to this topic. 

The first part of section 8 contains what is probably the most abused portion of the entire Constitution. It states that: 

The Congress shall have the 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;  

Buried in the middle of this particular part of section 8 we have the infamous "general welfare" clause. This clause has been used as the justification for Congress to pass so many laws in areas that were not specifically mentioned elsewhere that I doubt anybody could chase them all down. This, however, was definitely not the intent of the framers of the Constitution. James Madison, writing in The Federalist number 41 (pages 262-263 of the edition mentioned above) had the following to say: 
Had no other enumeration or definition of the powers of the Congress been found in the Constitution than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms "to raise money for the general welfare."  

But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? For what purpose could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power? Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity, which, as we are reduced to the dilemma of charging either on the authors of the objection or the authors of the Constitution, we must take the liberty of supposing had its origin with the latter.  

Thus, it should now be excruciatingly clear that the phrase "general welfare" was only used as a catchall term to describe the rest of the enumerated powers. It is not a license to expand the scope of Congressional authority to anything that somebody could argue might have some indirect impact on the "general welfare" of the people or the country. Thus, the people who make the argument that the "general welfare" clause enables the Congress to do just about anything under the sun would be described by Madison as absurd. 

One of the other clauses of section 8 is abused just as often if not more so than the general welfare clause. This is the clause that gives Congress the power: 

 To regulate Commerce with foreign Nations, and among the several States, and with the  Indian Tribes; 
Indeed, this clause is stretched so much that it is used by the Congress to intrude on just about every aspect of people's lives that might have anything remotely to do with something that might have been associated with interstate commerce. However, the explanation that James Madison gives of this power in The Federalist number 42 on pages 267 and 268 is quite a bit narrower than that: 
The defect of power in the existing Confederacy to regulate the commerce between its several members is in the number of those which have been clearly pointed out by experience. To the proofs and remarks which former papers have brought to view on this subject, it may be added that without this supplemental provision, the great and essential power of regulating foreign commerce would have been incomplete and ineffectual. A very material object of this power was the relief of the States which import and export through other States from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State, it must be foreseen that ways would be found out to load the articles of import and export, during passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former. We may be assured by past experience that such a practice would be introduced by future contrivances; and both by that and a common knowledge of human affairs that it would nourish increasing animosities, and not improbably terminate in serious interruptions of the public tranquility. To those who do not view the question through the medium of passion or interest, the desire of the commercial States to collect, in any form, an indirect revenue from their uncommercial neighbors must appear not less impolitic than it is unfair; since it would stimulate the injured party by resentment as well as interest to resort to less convenient channels for their foreign trade. But the mild voice of reason, pleading the cause of an enlarged and permanent interest, is but too often drowned, before public bodies as well as individuals, by the clamors of an impatient avidity for immediate and immoderate gain.  

The necessity of a superintending authority over the reciprocal trade of confederated States has been illustrated by other examples as well as our own. In Switzerland, where the Union is so very slight, each canton is obliged to allow to merchandises a passage through its jurisdiction to other cantons, without an augmentation of the tolls. In Germany it is a law of the empire that the princes and states shall not lay tolls or customs on bridges, rivers or passages, without the consent of the emperor and the diet; though it appears from quotation in an antecedent paper that the practice in this, as in many others in that confederacy, has not followed the law, and has produced the mischiefs which have been foreseen here. Among the restraints imposed by the Union of the Netherlands on its members, one is that they shall not establish imposts disadvantageous to their neighbors without the general permission.  

Thus, it appears that what was meant by the Founders in granting the power to Congress to regulate commerce among the several States has been explicitly defined by the context in which James Madison used it. It specifically refers to controlling the tariffs, duties, import and transfer fees charged by the States on goods passing through them enroute to other States and foreign countries. Nothing less and nothing more. In other words, all the other hogwash that the Congress has seen fit to justify under this clause represents an unconstitutional usurpation of authority. 

One of the other powers of Congress that should be discussed when dealing with aspects of criminal law is the power: 

To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;  

This power is pretty much self-explanatory and to the best of my knowledge is not being abused. Therefore, the bottom line is don't counterfeit. The government will then legitimately nail your hide to the wall if they catch you. 

Yet another power of the Congress which has a direct bearing on criminal law is: 

To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations;  

This again is pretty much self-explanatory. However, it will be helpful to look at what James Madison has to say about it in The Federalist number 42, pages 265 and 266. 

The power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations belongs with equal propriety to the general government, and is a still greater improvement on the Articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision in the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. ... 

Thus, it can be seen that the emphasis here is on matters pertaining to crimes committed by people which usually take place outside the jurisdiction of the several States. Therefore, an attempt to apply this power to define felonies that take place within the boundaries of one of the States away from the seas would be an unwarranted extension of it. 

As this essay is intended primarily to study the aspects of the criminal jurisdiction of the federal government that might apply to civilians, I will go ahead and skip over the powers of the Congress as they relate to the military in general. Also, a proper discussion of the powers of Congress as they relate to the militia is beyond the scope of what I intend to cover in this essay.

Perhaps the most potentially confusing power of the Congress is expressed as follows: 

To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;  

James Madison explains this in detail in The Federalist number 43 on pages 272 and 273. 
The indispensable necessity of complete authority at the seat of government carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it not only the public authority might be insulted and its proceedings interrupted with impunity, but a dependence of the members of the general government on the State comprehending the seat of the government for protection in the exercise of their duty might bring on the national councils an imputation of awe or influence equally dishonorable to the government and dissatisfactory to the other members of the Confederacy. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part to it, to concur in the cession will be derived from the people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.  

The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment. 

The bottom line to all that is unless you happen to be on a section of land which was specifically ceded by a State government to the federal government for it's use, then this particular clause does not give the federal government any authority over you. Where this gets confusing is that when the Congress passes a law, they refer to these areas that they have complete and total control over by using the term "United States." Black's Law Dictionary, 6th Edition, spells this out on page 1533 where it defines the term "United States" as follows: 
This term has several meanings. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in family of nations, it may designate territory over which the sovereignty of United States extends, or it may be collective name of the states which are united by and under the Constitution.  

Thus, when one is studying various different federal laws, and encounters the term "United States" used to describe the area that the law is in effect for, one has to very carefully check the context of such usage. For it is only by the context that the term is used in that it's exact meaning in that specific instance can be determined. Otherwise, one might mistake sections of United States code that apply only to areas of land that have been specifically ceded to the federal government by the various different State governments for sections of United States code that apply equally to all people throughout the entire country regardless of where they are specifically located. One of the major problems that we have today is that there are many federal employees and agents who not only do not understand this distinction but may even be unaware of it. Also, as confusion over which exact definition is being used in a particular section of law will more often than not benefit the federal government by appearing to let it exercise more power than it should, those federal government agents and employees who are aware of it have not been at all hesitant to take advantage of State governments, employees and citizens who think that the term "United States" automatically refers to the entire country as a whole. 

The last clause of Article I section 8 that we will examine is the necessary and proper clause. It states that Congress has the power: 

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Office thereof.  

Alexander Hamilton goes into almost excruciating detail over what this clause really means in The Federalist, number 33 pages 201 through 203. The emphases used in the quotation are those that Hamilton himself used. 
The residue of the argument against the provisions of the Constitution in respect to taxation is ingrafted upon the following clauses. The last clause of the eighth section of the first article authorizes the national legislature "to make all laws which shall be necessary and proper for carrying into execution the powers by that Constitution vested in the government of the United States, or in any department or officer thereof"; and the second clause of the sixth article declares that "the Constitution and the laws of the United States made in pursuance thereof and the treaties made by their authority shall be the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding."  

These two clauses have been the source of much virulent invective and petulant declamation against the proposed Constitution. They have been held up to the people in all the exaggerated colors of misrepresentation as the pernicious engines by which their local governments were to be destroyed and their liberties exterminated; as the hideous monster whose devouring jaws would spare neither sex nor age, nor high nor low, nor sacred nor profane; and yet, strange as it may appear, after all this clamor, to those who may not have happened to contemplate them in the same light, it may be affirmed with perfect confidence that the constitutional operation of the intended government would be precisely the same if those clauses were entirely obliterated as if they were repeated in every article. They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. This is so clear a proposition that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan without emotions that disturb its equanimity.  

What is a power but the ability or faculty of doing a thing? What is the ability to do a thing but the power of employing the means necessary to its execution? What is a LEGISLATIVE power but a power of making LAWS? What are the means to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes but a legislative power, or a power of making laws to lay and collect taxes? What are the proper means of executing such a power but necessary and proper laws?  

This simple train of inquiry furnishes us at once with a test of the true nature of the clause complained of. It conducts us to this palpable truth that a power to lay and collect taxes must be a power to pass all laws necessary and proper for the execution of that power; and what does the unfortunate and calumniated provision in question do more than declare the same truth, to wit, that the national legislature to whom the power of laying and collecting taxes had been previously given might, in the execution of that power, pass all laws necessary and proper to carry it into effect? I have applied these observations thus particularly to the power of taxation because it is the immediate subject under consideration and because it is the most important of the authorities proposed to be conferred upon the Union. But the same process will lead to the same result in relation to all other powers declared in the Constitution. And it is expressly to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all necessary and proper laws. If there be anything exceptionable, it must be sought for in the specific powers upon which the general declaration is predicated. The declaration itself, though it may be chargeable with tautology or redundancy, is at least perfectly harmless.  

Thus, the bottom line is that the "necessary and proper" clause does not give the Congress any power that is not already defined in the other clauses. Like the infamous "general welfare" clause, it was intended to do nothing more than to gather together under one head things which were specifically mentioned elsewhere. 

Now that we have carefully examined these various different clauses that give the Congress power to pass legislation in certain areas, and the exact ways in which the people who wrote the Constitution intended that those sections of the Constitution should be interpreted and the powers should be put to use, there should be no doubt in the mind of any fair and reasonable person that the federal government has expanded it's powers far in excess of anything even the most ardent supporters of the Constitution ever intended. In other words, in many respects the anti- federalists were right on the money. Just about every liberty which Madison and Hamilton were arguing would not be taken by the federal government because it was not specifically provided for in the Constitution has in the course of time not only been taken but in fact exceeded. The mechanism for such taking more often than not is a stretching of the meaning of the various different clauses in the Constitution far beyond what the framers intended. 

In some instances, the mechanism that government agents have used to increase the power that they have available to them is a deliberate fraud based on confusion between laws passed by the Congress intended to apply only to areas that have been specifically ceded to the federal government by the State governments for use as forts, arsenals and other needful buildings and laws passed by Congress intended to apply to the nation as a whole. Because the term "United States" is used to apply to the different areas affected by both sets of laws, there is understandable confusion on the part of people who are confronted by government agents loudly proclaiming that federal law mandates that they do certain things. 

In closing, I believe that I have been able to provide enough documentation from primary source materials to demonstrate that the concerns of the patriot movement have a substantial basis. The federal government is rapidly expanding its power far in excess of anything that was ever intended by even the most ardent supporter of the Constitution as it was debated and adopted. To the extent that these powers exercised by the federal government have not been obtained legitimately through the use of the amendment process, but in fact depend for their source on either misinterpretations of the original wording or outright fraud as to which areas of the country are affected by them, then the use of such power by the federal government can not be said to have the legitimate support of the people. It also becomes apparent that the people who are concerned about this sort of thing are not simply making it up as they go along, and are not somehow setting themselves above the law. The supreme law of the land in this country has been and still is the Constitution for the United States of America. To the extent that laws passed by the federal government exceed the scope of its Constitutional authority, then those laws are without force and void. The citizens of this country then not only have no duty to obey them, they in fact have a positive duty to ensure that such laws are not allowed to stand. 

This also cuts to the quick of what it means to be in military service in this country. All enlisted members of the armed forces and all commissioned officers are sworn to protect and defend the Constitution of the United States from all enemies foreign and domestic. As should be clear by now, and should also be clear to anybody who has studied the UCMJ, one does not fulfill this responsibility by blindly following whatever orders come down from on high with no regard for whether or not they are "lawful." And in this country the essence of a lawful order is that it stems from the necessary and proper means used to execute the Constitutional powers of the government. For while the UCMJ is more far reaching with regard to military personnel than the laws are that govern private citizens, the UCMJ nonetheless has it's basis in the Constitutional authority of the government to provide rules for the governing and regulation of land and naval forces. It does not give the government the authority to order the members of its military forces to perform actions which exceed the constitutional authority of the government itself. That is why the members of the military forces in America have their loyalty sworn to the Constitution and not to the President, the Congress, the Supreme Court, or the Joint Chiefs of Staff. 

- Mike Johnson 
North Central Florida Regional Militia 

"There is something so far-fetched and so extravagant in the idea of danger to liberty from the militia that one is at a loss whether to treat it with gravity or with raillery; whether to consider it as a mere trial of skill, like the paradoxes of rhetoricians; or as a disingenuous artifice to instil prejudices at any price; or as the serious offspring of political fanaticism. Where in the name of common sense are our fears to end if we may not trust our sons, our brothers, our neighbors, our fellow citizens? What shadow of danger can there be from men who are daily mingling with the rest of their countrymen and who participate with them in the same feelings, sentiments, habits, and interests?" 

- Alexander Hamilton, The Federalist # 29 

 Permission is granted to copy and repost this file as desired for educational purposes as long as proper attribution is given. 

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HTML March 17, 1997