Commentary by Jon Roland on "How Washington Subverts Your Local
Sheriff", by Edwin Meese III and Rhett DeHart, from Policy Review,
It is encouraging to see that Ed Meese has found constitutionalist "religion",
and he makes some important points, together with Rhett DeHart, in this article.
But the language they use indicates they are unclear on many of the main
They state that "The Constitution gave Congress jurisdiction over only
three crimes: treason, counterfeiting, and piracy on the high seas and offenses
against the law of nations.". That's four crimes, not three. "Piracy
(and felonies) on the high seas" is a distinct category from "offenses
against the laws of nations". The distinction is important, and needs to be
They neglect to mention that the Fourteenth Amendment added a fifth
category: deprivation of civil rights by the State, that is, by agents of
government. Although the amendment is not explicit about whether criminal powers
were included, the legislative history of the debates on the amendment make it
clear that that was intended. The most important federal criminal statutes under
this amendment are 18 USC 241, Conspiracy Against Rights, and 18 USC
242, Deprivation of Rights Under Color of Law, and they are
constitutional. The amendment does not provide authority to impose criminal
sanctions against deprivation of rights by parties who are not government
The Constitution distinguishes between two kinds of national territory:
state territory and U.S. territory. Originally, all territory was state
territory. When the Constitution was adopted, the original thirteen states ceded
the territory they claimed west of the Appalachians to the jurisdiction of the
national government, whereby it became U.S. territory, with the intention that
such territory would eventually become new states. The states also ceded their
tidelands and coastal waters to U.S. jurisdiction, as well as flag vessels at
sea and the grounds of any foreign embassies. The Constitution addresses this
situation in Art. IV, Sect. 3, where it provides: "The Congress shall have
Power to dispose of and make all needed Rules and Regulations respecting the
Territory or other Property belonging to the United States;". Note that
this does not include criminal powers. "Rules and Regulations" are
civil powers, punishable only by deprivation of property, not of life or
liberty. It was expected that local communities would be formed and that they
would exercise such powers, until they came together in regional territories
preparatory to statehood.
The Framers also provided for situations in which parcels of land belonging
to the states might be ceded back to national jurisdiction by the State
legislature for certain purposes: the District of Columbia and the sites of
various military installations and federal facilities. In Art. I, Sect. 8, the
Constitution grants power to Congress "To exercise exclusive Legislation in
all Cases whatsoever" over such territories. The legislative history
indicates that this grant did include criminal powers.
Since 1787 the United States has also acquired jurisdiction over territories
not ceded by any state: the Louisiana Purchase, the Mexican Cession, Alaska, the
Oregon Territory, the Gadsden Purchase, the Phillippines, Puerto Rico, the
Virgin Islands, and various islands in the Pacific. Most of these territories
have since become states. The Phillippines were granted independence, and Puerto
Rico has a "commonwealth" status, under U.S. jurisdiction but with
statelike authority over its internal affairs and the right to become
independent. Since the territories that remain were not ceded by any state, the
legislative authority of Congress is that of Art. IV, Sect. 3, not Art. I, Sect.
8, and therefore does not include criminal powers.
Arguably the more than 3000 federal crimes discussed in this article may be
constitutional for offenses committed on Art. I, Sect. 8, federal territories,
provided they do not infringe on any of the other provisions of the
Constitution, such as the Bill of Rights, as many of them do. It is their
application to offenses committed on state territory and on Art. IV, Sect. 3,
territory that is unconstitutional.
The way Congress has tried to get around this is to base such legislation on
the Commerce Clause, the grant of power, under Art. I, Sect. 8, to "regulate
Commerce ... among the several States", by redefining the power to "regulate"
include criminal powers, and to redefine "commerce" in include
everything that ever was part of interstate commerce, or may become part of
interstate commerce, or that is engaged in interstate commerce, or that affects
interstate commerce. Both of these redefinitions are in clear violation of the
meaning of these terms as used by the Framers.
Congress has also attempted to redefine the phrase in the Sixth Amendment, "State
and district wherein the crime shall have been committed", to mean not
where the offender was when he committed the offense, but where the effects of
his offense occurred. This is in clear violation of the common law principle
that the crime is the act and not the effect, a principle that was incorporated
into the Constitution.
Meese and DeHart are weak when they state that "the most compelling
reason to oppose nationalizing crime is that it contradicts constitutional
principles". It is not just that they contradict constitutional principles.
The U.S. Constitution is, as it states in Art. VI, the "Supreme Law of the
Land". All statutes or other official acts in contradiction with it are
null and void from inception. They don't exist and never did. It
doesn't matter if they are being enforced. Enforcement doesn't make them the
law. And enforcing an unconstitutional statute confers no legal protection
whatsoever on anyone attempting to enforce it. It is not an excuse that "I
was only enforcing the statute on the books" or that "I was only
following orders". Everyone has the legal responsibility to determine the
legality of any official act with which they may become involved.
Any attempt to enforce an unconstitutional act is almost certainly a
violation of someone's civil rights, and is, therefore, itself a violation of
criminal law, specifically 18 USC 242, and perhaps 18 USC 241. Enforcement
of unconstitutional acts is a crime, and those who enforce them are criminals.
Failure to prosecute such crimes is a violation of one's oath of office to the
Constitution, and grounds for removal from office. It may also itself be a
criminal act in violation of 18 USC 241.
It should also be emphasized that under our system of government, all
citizens have the duty to help enforce the law, especially when it is not being
enforced by those officials charged with doing so. This means citizens have the
duty to investigate and arrest officials attempting to enforce unconstitutional
acts, using whatever means that is necessary and sufficient to accomplish that
duty, including deadly force.
These issues are not amenable to compromise. Official acts are either
constitutional or they are not. There are no degrees of constitutionality. No
shades of grey. No matters of opinion. Until this is understood, the present
crisis of legitimacy in this country will continue to be obscured and its
importance ignored, and militias will continue to organize to resist the
enforcement of unconstitutional federal (and state) criminal statutes, and there
may be more violent confrontations leading to civil war.
One point needs to be made about the title of the article. It would be a
good title for another article covering the ways the federal government is
taking control of the operations and personnel of state and local law
enforcement agencies, not just to enforce federal criminal statutes, but to
control the ways they enforce state and local statutes, and to prevent them from
enforcing those statutes when they are violated by federal agents and agencies.
The ways this is being done is worthy of much more attention than it has
Again, I commend Meese for attending to these issues, if not very
competently. However, he is the same person who presided, while he was
Attorney-General, over some of the worst violations of civil rights by federal
agencies in this century. He would be more credible if he were now to disclose
everything he knows about federal abuses that occurred during the two decades
ending with the end of his term as Attorney-General, such as the Inslaw Scandal,
which led to the murder of Danny Casolaro.