UNDERSTANDING AMERICAN PROPERTY RIGHTS
SECTION 2 : THE CONSTITUTION OF THE UNITED STATES OF AMERICA - A STRUCTURAL FRAMEWORK "Dual Sovereignty"
The concept of "sovereignty" as eminating from a distinct "body politic"; State government as "foreign" to other States, and to the federal government; separate sovereignty as fundamental to federalism; development of the concept through the "double jeopardy" cases.
Creation of new governments; political equality among colonies; need for independence from England
CONGRESS OF 1776
Federal league of comity/confederation; maintenance of separate and independent sovereignty - internal "police powers; plan of action
Thirteen separate sovereign nation-states; internal territorial sovereignty over state lands and waters.
Shift of "sovereignty" to the body of the people of each State; definition of a "compact"; writings of John Locke; the "social compact" (creation of power); original compact of individual with society; "conventions"; written constitutions (delegation of power)
SOCIAL COMPACT or COVENANT
ORGANIC CONTRACT or COMPACT
ARTICLES OF CONFEDERATION
Treaty or "Federal compact" among sovereign States; delegation by the States of aspects of sovereignty to the league as agent; retention of separate political and territorial sovereignty; delay in ratification because of dispute over unappropriated "western wastelands"
PROVISIONS REGARDING THE "WESTERN TERRITORIES"
CREATION OF NEW STATES
PRELUDE TO THE CONSTITUTION -(ANNAPOLIS, 1786)
Trade meeting at Annapolis in 1786; resolve to call for a general meeting of state delegates for reform of Articles of Confederation.
MAXIMIZING LIBERTY - REPUBLIC v. DEMOCRACY; SEPARATION OF POWERS
Majority will limited by original compact with the individual; difference between a monarch, democracy and republic; fragmentation, diffusion and separation of powers to maximize personal liberty against tyranny of majority.
ADMINISTRATION - SCOPE OF AUTHORITY
Madison's Notes on the Convention vote in favor of forming a nation; issue of supremacy of "State sovereignty" - State interpostion and nullification, Webster speech.
"FEDERAL" ASPECTS OF THE CONSTITUTION
Provisions in the original Constitution for State legislatures to elect Senators; the electoral college as a vehicle of the compound Republic; democratic Constitutional Amendments; objections voiced against inroads upon State sovereignty in ratification debates.
FORM OF RATIFICATION
Rejection of State legislative ratification alone; rejection of a national convention; conventions of the people by State, along with State legislative ratification; return to the original "body politic" of the State for authority to constitute government.
The concept of "compound government" comprised of both "national" and "federal" aspects as explained by Madison in the "Federalist Papers"; the concept of "federal" as pertaining to the maintenance of the independent element of State identity as a separate "body politic"
ENUMERATED POWERS AND PROHIBITIONS OF THE CONSTITUTION
Text: Congressional Powers - Article I, Section 8; Prohibitions on federal powers - Article II, Section 9; Prohibitions on State powers - Article I, Section 10 of the Constitution of the United States.
LIMITED FEDERAL POWERS
"General" or federal powers are specific and authorized by positive grant; are to be strictly construed; no "national" police or municipal powers for health. safety, general welfare or prosperity; federal tax and spending power for "general welfare"; federal law acts upon individuals, not States; legitimate federal law supreme and preempts State law; may completely occupy subject field.
NO LEGISLATIVE POWERS FOR NATIONAL GENERAL WELFARE
FEDERAL POWER TO TAX & SPEND
SUPREMACY CLAUSE AND PRE-EMPTION
RESIDUAL STATE "SOVEREIGNTY"
"State sovereignty" is retained internal jurisdiction or the "police" or "municipal" powers; powers cannot be abrogated or appropriated; Carter v. Carter Coal.
Virginia deed of cession - new States same sovereignty, freedom & independence as original; equality of State power, dignity & authority; equality in jurisdiction, sovereignty and dominion; negation of Terms & Conditions of Admission imposed in Enabling Acts; negation of federal law imposed while in territorial state; devolution to State of Crown title and trust to "The sea and its arms;" temporary federal trust over "public lands" ceded by original States; retained federal ownership of public lands as property in the West.
ENABLING ACTS, TERMS & CONDITIONS OF ADMISSIONEASTERN STATE-CEDED PUBLIC LANDS
TITLE/TRUST - "THE SEA & ITS ARMS"
WESTERN PUBLIC LANDS - LESS THAN EQUAL
DYNAMICS OF "DUAL SOVEREIGNTY"
Two separate governments with separate "citizens" - essentially foreign; federal program cannot coerce, force, require State law to comply with federal program or be subject to federal agency oversight; cannot require State law enforcement or officials to implement; State cannot agree to enlargement of federal powers; "cooperative federalism."
[It should be noted that the author is not an attorney. The comments presented are the author's opinion and should not be construed in any manner as legal advice or counsel. Concepts presented are intended for discussion purposes only. Full text of Supreme Court decisions may be located though "FindLaw" on the Internet.
Copyright 1998, 1999, 2000 Marcia H. Armstrong. All rights reserved. Permission granted for non-commercial use and distribution with appropriate attribution to sources.