cj#882> BE Smith on Federal/State Jurisdiction

1998-12-20

Richard Moore

Dear cj & rn,

(please pardon duplication)

This is a first report on my whirlwind tour of northern california
activism, hosted by Brian Hill, roving-activist extrordinaire. You've seen
postings from him on rn (Nov 24, Sep 27 being the most recent - I can
forward on request). Brian's career began in the sixties, when he worked
with many of the well-known leaders and groups of the day. Unlike many of
us who drifted away from the movement, Brian has kept with it. He's
developed an ever-expanding network of contacts, "tribe members", and
"family".  These latter terms express the personal comradarie and trust
that has developed over the years among dispersed and local communities,
making "networking" too shallow a term. We're talking about real,
functional relationships, not trendy new-age nomenclature.

His professional background and academic training were in anthropology, and
his "conversion" occurred when he realized that his skills were more
valuable applied  to the movement, as a social phenomenon, than to the
needs of commercial employers.  As we drove up through Marin, Humboldt, and
Trinity counties, swapping stories, I learned many things, practical,
political, and philosophical.  I now count Brian as a "brother" and look
forward to ongoing collaboration.

Brian's involved in dozens of different projects and ventures, from legal
cases to small-business development to revolving funds to a
peoples-gold-coin scheme. His hallmark principle is _synergy -- identifying
the pieces that can be combined to create change. None of the projects he's
involved with have anything to do with protest, they're all _accomplishing
change. He's not the kind to spout mottos, but if he did, "We are free
people and we do have power" might be a good candidate.

        synergy: the artful transformation of two or more problems into a
        solution; the alchemy of creative change.  -rkm's dictionary

In my own thinking about revolution, two problems seem central: how to
build an appropriate mass-movement in the short term, and how to achieve
the kind of societies we want in the long term.  It seems to me there is an
obvious synergy opportunity here. Instead of thinking of the movement as a
"political action group", in the context of today's political regimes, we
can think of the movement as the "seeds of a new society", in the context
of the evolution of humanity.  Instead of "struggling against" the system,
the movement "out grows" the system.  Instead of seizing the power of the
state, the movement becomes the new society.

Not every "synergy inspiration" pans out. But this one has only gained
strength through deeper exploration.  The first-level benefits are clear:
    1) no power-vacuum is created when the existing system is overcome
    2) the new society evolves organically, working out the bugs on the way
    3) everyone gets involved as it grows; there's no elite power center
    4) the movement is both the means and the ends

But there are second-level benefits as well. A lot is known about
movements, and a lot is known about the structures of societies. If we say
the movement _is the society, then we can apply knowledge from one domain
to the other.  We can look at societies that have "worked", in terms of
human empowerment, and apply those principles to movement-building. And we
can look at empowered movements, such as Gandhi's, and seek ways to make
that kind of energy part of the normal infrastructure of tomorrow's
societies.  There is much to be learned from exploring this
interdisciplinary gold mine, and I invite the social scientists (amateur or
otherwise) among us to post on this topic.

The critical enabling factor, to accomplish this synergy, is the
"consciousness" or the "self image" of the movement. If the movement adopts
the consciousness "we are the sovereign people" and "we are building the
society we want for ourselves and our children", then the foundation is
partly laid.

One thing we can say for certain about tomorrow's society is that everyone
will be in it.  Hence everyone, eventually, needs to be part of the
movement.  That, among other reasons, is why we must overcome the divide
between left and right.

Perhaps one place to begin finding common ground is by going back to our
constitutions, and the foundations of what were supposed to be
self-governing societies.  Brian and B.E. Smith have been "family" for many
years.  In the essay below, B.E. shares his some of his constitutional
thinking.

B.E. is a defendant in a medical-marijuana cultivation prosecution which
could prove to be a landmark case. It's not about pot, but about personal
and state's rights. More about that later.

all the best,
rkm


----------------------------------------------------------------------------
From: "Brian Hill" <•••@••.•••>
To: "Richard K. Moore" <•••@••.•••>
Subject: Fw: Federal/State Jurisdiction
Date: Thu, 10 Dec 1998 13:41:30 -0800

Hi

This is from BE Smith.  You'll meet him up in Denny, Trinity County.
I've sent some of your stuff to him so you talk to him if there's
something here that you want to talk about.

B
-----Original Message-----
From: B E Smith <•••@••.•••>
To: Brian <•••@••.•••>
Date: Tuesday, December 08, 1998 12:39
Subject: Fw: Federal/State Jurisdiction

----------
From: B E Smith <•••@••.•••>
To: Alan Bock <•••@••.•••>
Subject: Federal/State Jurisdiction
Date: Tuesday, December 08, 1998 12:29 PM

ATTN:  Mr. Alan W. Bock
Senior Editorial Writer
Orange County Register

Dear Mr. Bock,

By the adoption of the U.S. Constitution, the States jointly surrendered
some 17 specific and well defined powers to the federal Congress.
Regardless of what powers government has, all power is, by nature,
jurisdictional.  This means that there are PLACES and SUBJECT MATTER that
the power exists for.  In other words, a law passed in Canada has no effect
on Americans, unless they happen to be in Canada.  When we are talking
about the 17 powers granted to the federal government, it's jurisdiction is
also over the States.  But unless this is a power SPECIFICALLY granted,
the  federal government has NO jurisdiction over the people of the States.
This  principle was perhaps best expressed in Caha v. United States, 152
U.S.  215, where the Court declared: "The laws of Congress in respect to
those  matters do not extend into the territorial limits of the states, but
have  force only in the Disctrict of Columbia, and other places that are
within  the exclusive jurisdiction of the national government."

In Ableman V. Booth, 21 How. 523, Supreme Court Chief Justice Taney
described in plain language the complex nature of our government, and the
existence of two distinct and separate sovereignties within the same
territorial space, each of them restricted in its powers, and each within
its sphere of action prescribed by the Constitution of the United States,
independent of the other.  Neither is under the necessity of applying to
the other for permission to exercise its lawful powers.  Within its own
sphere, it may employ all the agencies for exerting them which are
appropriate or necessary, and which are not forbidden by the law of its
being.  For instance, when the power to establish post offices and to
create courts within the States was conferred upon the Federal government,
included in it was authority to obtain sites for such offices and for court
houses.

Federal jurisdiction is extremely limited, with the same being exercised
only in areas external to state legislative power and territory.  The only
provision in the Constitution which permits teritorial jurisdiction to be
vested in the United States is found in Article I, section 8, clause 17,
which provides the mechanism for a voluntary cession of jurisdiciton from
any State to the United States.  When the Constitution was adopted, the
United States had jurisdiciton over no lands within the States, and it
possessed jurisdiciton only in the lands encompassed in the Northwest
Territories.  Shortly after formation of the Union, Maryland and Virginia
ceded jurisdiction to the United States for Washington, D.C.

Over time, the  States have ceded jurisdiction to federal enclaves within
the States.  Today, the territorial jurisdiction of the United States is
found only in  such ceded areas, which encompass Washington, D.C., the
federal enclaves  within the States, and such territories and possessions
which may now be  owned by the United States.  State jurisdiction
encompasses the legislative power to regulate, control  and govern real and
personal property, individuals and enterprises within  the territorial
boundaries of any given State.  Within the state power, in  the words of
Chief Justice Marshall, is "that immense mass of legislation  which
empraces everything within the territory of a state, not surrendered  to
the general government, all which can be most advantageously exercised  by
the states themselves.  Inspection laws, quarantine laws, health laws of
every description, as well as laws for regulating the internal commerce of
a state, and those which respect turnpike roads, ferries, ets., are
component parts of this mass.  No direct general power over these objects
is granted to Congress: and, consequently, they remain subject to state
legislation.  If the legislative power of the Union can reach them, it must
be for national purposes; it must be where the power is expressly given
for  a special purpose, or is clearly incidental to some power which is
expressly given."

The jurisdiction of the States is essentially the same as they possessed
when they were leagued together under the Articles of Confederation. The
confederated States possessed absolute, complete and full jurisdiction over
property and persons located within their borders.  It is hypocritical to
assume or argue that these States, which had banished the centralized power
and jurisdiciton of the English Parliament and Crown over them by the
Declaration of Independence, would shortly thereafter cede comparable power
and jurisdiction to the Confederation Congress. They did not and they
closely and jealously guarded their own rights, powers and jurisdiction.

When the Articles were replaced by the Constitution, the intent and purpose
of the States was to retain their same powers and jurisdiction, with a
small  concession of jurisdiction to the United States of lands found
essential  for the operation of that government.  What was definitely
decided in the beginning days of this Republic  regarding the extent,
scope, and reach of each of these two distinct  jurisdictions remains
unchanged and forms the foundation and basis for the  smooth workings of
state governmental systems in conjunction with the  federal government.
Without such jurisdicitonal principles which form a  clear boundary between
the jurisdiction of the States and the United  States, our federal
governmental system would have surely met its demise  long before now.

The U.S. Constitution (as well as the Constitution of California) contains
a broad realm of individual immunity against all governmental power,
municipal, state or federal.  It is a principle of our constitutional law
that the individual citizen is exempt from any power or control by the
foregoing governments, except when such power or control is necessarily
implied in such expressly vested power or control.  It would be impossible
to find any dissent from this principle on the part of any reputable
publicist, statesman or jurist, or in any judicial decision down, at least,
to the close of yesterday.  In pursuing his occupations in the common law
realm, the individual has  made no "Oath or Affirmation" supporting any
constitution and he is not  subject to any constitutional jurisdiction.  If
it cannot be proved that  the individual is subject to the jurisdiction of
the Constitution, then who  is contractually bound by "Oath or Affirmation"
to obey such Constitution  in consideration for offices of public trust and
those benefits of public  service and public employment?  "...The Sentors
and Representatives before  mentioned, and the members of the several State
Legislatures, and all  executive and judicial Officers, both of the United
States and of the  several states, shall be bound by Oath or Affirmation,
to support this  Constitution;..."

The intent of Article VI of the U.S. Constitution was to define exactly to
whom the constitutional jurisdiction applies to.  There can be no doubt
that the federal/state legislative acts can and does  pertain to those
artificial subjects and members who are wards or creations  of the U.S.
Constitution and the Constitution of California.  The fact exists that
private individuals are excluded from the  requirements of Article VI of
the US Constitution and Article XX, section  3, of the Constitution of
California.  Government only have the right to  control, limit, restrict,
and regulate the actions of those artificial  persons they create.


B E Smith
(530) 629-4356
e-mail:  •••@••.•••



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