Commentary by Jon Roland on "How Washington Subverts Your Local Sheriff", by Edwin Meese III and Rhett DeHart, from Policy Review, Jan-Feb 1996.
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 concepts.
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 better understood.
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 agents.
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 received.
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.