Time: Sat Oct 04 06:54:19 1997
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Date: Sat, 04 Oct 1997 06:47:55 -0700
To: butchaz@juno.com (Alfred R Martin)
From: Paul Andrew Mitchell [address in tool bar]
Subject: SLS: more on Downes v. Bidwell (fwd)
At 03:11 AM 10/4/97 -0700, you wrote:
> The District of Columbia was made up of portions of two of the original
>states of the Union, and was not taken out of the Union by the cession.
>Prior thereto its inhabitants were entitled to all the rights,
>guarantees, and immunities of the Constitution, among which was the right
>to have their cases arising under the Constitution heard and determined
>by federal courts created under and vested with the judicial power
>conferred by, article 3. I think it's not reasonable to assume that the
>cession stripped them of these rights and that it was intended that at
>the very seat of the national government the people should be less
>fortified by the guaranty of an independent judiciary than in other parts
>of the Union.
>
> In Downes v. Bidwell, supra, in the opinion delivered by Mr.
>Justice Brown, at pages 260, 261 of 182 U.S., 21 S. Ct. 770, 777, it is
>said:
>
> "This District had been a part of the states of Maryland and
>Virginia. It had been
> subject to the Constitution and was a part of the United States.
>The Constitution
> had attached to it irrevocably. There are steps which can never be
>taken backward.
> The tie that bound the states of Maryland and Virginia to the
>Constitution could
> not be dissolved, without at least the consent of the Federal and
>state governments
> to a formal separation. The mere cession of the District of
>Columbia to the Federal
> government relinquished the authority of the states, but it did not
>take it out of the
> United States or from under the aegis of the Constitution. Neither
>party had ever
> consented to that construction of the cession. If, before the
>District was set off,
> Congress had passed an unconstitutional act affection its
>inhabitants, it would have
> been void. If done after the District was created, it would have
>been equally void;
> in other words, Congress could not do indirectly, by carving out the
>District, what
> it could not do directly. The District still remained a part of the
>United States,
> protected by the Constitution. Indeed, it would have been a
>fanciful construction to
> hold that territory which had been once a part of the United States
>ceased to be
> such by being ceded directly to the Federal government."
> That the Constitution is in effect in the territories as well
>as in the District has
> been so often determined in the affirmative that it is no longer
>open to question...
> In the concurring opinion of Mr. Justice White in the Downs Case,
>certain principles
> applicable to the situation with which we are dealing are
>enumerated. Among
> them (pages 289, 292 of 182 U.S., 21 S. Ct. 770, 787) are these:
>"Every
> function of the government being in so far as its provisions are
>applicable. *** In
> the case of the territories, as in every other instance when a
>provision of the
> Constitution is invoked, the question which arises is, not whether
>the Constitution
> is operative, for that is self-evident, but whether the provision
>relied on is applicable."
>
> Thus, it is absolutely immaterial whether a state citizen lives,
>works or owns property in the states, any U.S. possession, property or
>territory, the District of Columbia or any creation of Congress such as
>the District of California, the STATE OF CALIFORNIA or any zip code area.
> Life would be so much easier for state citizens if they would define
>themselves as not "residing abroad". Then they could live and work in
>any of the states, the District of Columbia, any creation thereof or any
>of the territories and be without the reach of the statutes of Congress.
>And, with an adequate judicial challenge, the power of Congress to reach
>state citizens residing abroad would fall. When a member of Congress
>resides abroad, does he fall under the authority of a corporation created
>by Congress? Of course not. And yet, this is precisely the principle
>Congress attempts to impose when it claims a power over stated citizens
>when they reside abroad; for, a thing created - Congress - can never have
>a superior status relative to its creators - We The People. Just ask
>Congress.
>
> State citizens created state governments to manage the internal
>affairs of each state and they created the federal government to manage
>the external affairs of each state. The federal government is nothing
>more than the fourth branch of every state government. The state and
>federal governments were created by the same power and they were never
>intended to impose duties or taxes upon state citizens. The above
>Congressional acts give conclusive proof that such an intent was widely
>understood as late as 1870. Congress declared that when a state citizen
>came into "the United States", his body and his activity and other
>property were exempt from the laws of Congress. If the state citizen was
>exempt from the enactments of the federal government -i.e., the fourth
>branch of his state government, it seems reasonable that he is also
>exempt from the enactments of the other three branches of his creation:
>the state government.
>
> Now I have another question: Do the principles that constrained
>Congress in 1870 still operate today? In 1870 Congress could not tax the
>state citizen, even if he worked for the federal government. In the acts
>of Congress I've cited, Congress took a dictionary and created a tax for
>every NOUN contained therein. Congress licensed every conceivable
>profession carried on by "PERSONS", and taxed those licenses as well as
>every conceivable article of manufacture or trade by "PERSONS". It was
>not the good will of Congress that exempted the activity and property of
>state citizens from taxes, it was the Constitutional constraints. Thus,
>my question reduces to, Does the Constitution still operate today? If
>so, the only way Congress could reach the activity or property of state
>citizens today is by way of a Constitutional amendment -between 1870 and
>today- allowing Congress to do so. By 1895 there had been none; for, the
>supreme Court, in the Pollock case, voided an act of Congress laying an
>income tax on state citizens - Pollock was a citizen of Massachusetts:
>
> Thus, in the matter of taxation, the Constitution
>recognizes the two great
> classes of direct and indirect taxes, and lays down two rules by
>which
> their imposition must be governed, namely: the rule of
>apportionment as
> to direct taxes and the rule of uniformity as to duties, imposts
>and excises
> ...The tax imposed...on the income of real estate and of personal
>property,
> being a direct tax within the meaning of the Constitution, is
>therefore,
> unconstitutional and void because not apportioned according to
> representation, all those sections, consisting of one entire
>scheme of
> [direct] taxation are necessarily invalid.
> Pollock v. Farmers Loan & Trust Co. (1895) 158 U.S. 601, at 637.
>
>In 1908, we have the supreme Court telling us that the first eight
>amendments of the federal constitution are not available to U.S.
>citizens:
>
> But assuming it to be true that the exemption form
>self-incrimination is not,
> as a fundamental right of national citizenship, included in the
>privileges
> and immunities of citizens of the United States, counsel insist
>that, as a
> right specifically granted or secured by the Federal
>Constitution, it is
> included in them. This view is based upon the contention which
>must now
> be examined, that the safeguards of personal rights which are
> enumerated in the first eight articles of amendment to the
>Federal Bill of
> Rights,...are among the privileges and immunities of citizens of
>the United States... It is, however, not profitable to examine
>the weighty arguments in its favor, for the question is no longer
>open in this court. The right of trial by
> jury in civil cases, guaranteed by the 7th Amendment (Walker v
>Sauvenet,
> 92 U.S. 90, 23 L.ed. 678), and the right to bear arms, guaranteed
>by the
> 2nd Amendment (Presser v Illinois, 116 U.S. 252, 29 L ed. 615, 6
>Sup
> Ct. Rep. 580), have been distinctly held not to be privileges and
>immunities
> of citizens of the United States, guaranteed by the 14th
>Amendment against
> abridgment by the states, and in effect the same decision was
>made in
> respect of the guaranty against prosecution, except by indictment
>of a
> grand jury, contained in the 5th Amendment (Hurtado v California,
>110 U.S.
> 516, 28 L. ed.232, 4 Sup. Ct. Rep. 111,292), and in respect of
>the right to be
> confronted with witnesses, contained in the 6th amendment (West v
> Louisiana, 194 U.S. 258, 48 L. ed. 965, 24 Sup. Ct. Rep.650). In
>Maxwell
> v. Dow, 176 U.S. 581, 591, 44 L. ed 597, 601, 20 Sup. Ct. Rep.
>448,449),
> where the plaintiff in error had been convicted in a state court
>of a felony
> upon an information, and by a jury of eight persons, it was held
>that the
> indictment, made indispensable by the 5th Amendment, and the
>trial
> by jury, guaranteed by the 6th Amendment, were not privileges and
> immunities of citizens of the United States, as those words were
>used in
> the 14th Amendment. The discussion in that case ought not to be
>repeated.
> All the arguments for the other view were considered and
>answered, and
> the decision rested upon the ground that this clause of the 14th
>Amendment
> did not forbid the states to abridge the personal rights
>enumerated in the
> first eight Amendments, because those rights were not within the
>meaning
> of the clause "privileges and immunities of citizens of the
>United States"...
> We conclude, therefore, that the exemption form compulsory
>self-incrimination
> is not a privilege or immunity of national citizenship guaranteed
>by this
> clause of the 14th Amendment against abridgment by the states.
> Twiningv. New Jersey, 29 Sup. Ct. R 18 (1908)
>
>In 1913, somebody declared the so-called sixteenth amendment ratified.
>Whether it was ratified or not seems to be a non-issue; for, the
>resulting supreme Court cases concluded that it changed nothing:
> The 16th Amendment contains nothing repudiating or challenging
>the
> ruling of the Pollock Case which found direct taxes on property
>based
> income to be unconstitutional...The 16th Amendment, as correctly
> interpreted, was limited to indirect taxes and for that reason is
> constitutional.
> Brushaber v. Union Pacific RR Co. (1916) 240 U.S. 1, at 10, 11,
>12 and 19.
>
> The Sixteenth Amendment does not extend the power of taxation to
> new or excepted subjects."
> Peck v. Lowe, 247 U.S. 165.
>
> The 16th Amendment conferred no new power of taxation.
> Stanton v. Baltic Mining Co. 240 U.S. 103, at 112
>
>Thus, by 1916, the year of the Brushaber case, there had been no
>Amendment granting authority to Congress to reach the activity or
>property of state citizens. And then, fourteen years after the
>non-ratification of the sixteenth amendment, the courts tell us:
>
> Citizenship of the United States does not entitle citizen to
>privileges
> and immunities of citizen of state, since privileges and
>immunities of
> one are not the same as the other.
> K. Tashiro et al. v. Jordan (1927) 256 P 545
>
>In other words, according to the Civil War revenue acts, cited above, and
>the Pollock case, a state citizen had tax exempt status before the
>unratified sixteenth Amendment, which changed nothing. Hence, state
>citizens has the same status in 1927 and they did in 1908, see the
>Twining case. Do the courts still recognize this status of state
>citizens? Yes they do. While the Twining case tells us that the first
>EIGHT amendments are not available to U.S. citizens, a more recent case
>tells us the entire Bill of Rights is outside their reach:
>
> The privileges and immunities clause of the (unratified)
>Fourteenth
> Amendment protects very few rights because IT NEITHER
> INCORPORATES ANY OF THE BILL OF RIGHTS nor protects all
> rights of individual citizens. (See Slaughter-house Cases, 83,
>U.S.
> [16 Wall.] 36, 21 L. Ed. 394 (1873)). Instead, this provision
>protects
> only those rights peculiar to being a citizen of the federal
>government,
> it does not protect those rights which relate to state
>citizenship.
> Jones v. Temmer, 829 F. Supp. 1226, at 1232 (1993).
>
>It seems the principles indicated in the 1870 revenue act are still
>operative - until someone challenges the authority of Congress to impose
>a duty or tax on state citizens who are "residing abroad".
>
>Congress is now imposing "an income tax on the income of every individual
>who is a citizen or resident of the United States, " 26 CFR 1.1-1(a).
>Does this "citizen....of the United States" include the state citizen?
>
>Prior to the unratified fourteenth amendment, a "citizen of the United
>States" meant a "citizen of one of the several states," see Knowles,
>above. However, AFTER the unratified fourteenth amendment, American
>courts began making distinction between "citizen of the United States"
>and "citizen of a state."
>
> Of the privileges and immunities of the citizens of the United
>States,
> and of the privileges and immunities of the citizen of the
>state,...it is
> only the former which are placed by this clause [of the
>unratified
> fourteenth amendment] under the protection of the Federal
>Constitution,
> and that the latter, whatever they may be, are not intended to
>have any
> additional protection by this paragraph of the Amendment.
> Slaughterhouse Cases, (1872) 16 Wall 72, 83 U.S. 408
>
>***********The purpose of the [unratified] Fourteenth Amendment to the
> Constitution of the United States was to confer the status of
> citizenship upon...persons (who) WERE NOT WHITE PERSONS,
> but in the main were of African blood, who had been held in
> slavery in this country, or having themselves never been held
> in slavery, were the native-born descendants of slaves.
> Van Valkenburg v. Brown, (1872) 43 Cal 43.
>
>
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