Time: Sat Oct 04 06:54:19 1997
	by primenet.com (8.8.5/8.8.5) with ESMTP id GAA04363;
	Sat, 4 Oct 1997 06:49:54 -0700 (MST)
	by usr04.primenet.com (8.8.5/8.8.5) with SMTP id GAA07070;
	Sat, 4 Oct 1997 06:48:31 -0700 (MST)
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
>     "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: 
>     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
>   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
>	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
>	being a direct tax within the meaning of the Constitution, is
>	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.
>	But assuming it to be true that the exemption form
>self-incrimination is not,
>	as a fundamental right of national citizenship, included in the
>	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
>	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
>	Ct. Rep. 580), have been distinctly held not to be privileges and
>	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
>	v. Dow, 176 U.S. 581, 591, 44 L. ed 597, 601, 20 Sup. Ct. Rep.
>	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
>	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
>	All the arguments for the other view were considered and
>answered, and
>	the decision rested upon the ground that this clause of the 14th
>	did not forbid the states to abridge the personal rights
>enumerated in the
>	first eight Amendments, because those rights were not within the
>	of the clause "privileges and immunities of citizens of the
>United States"...
>	We conclude, therefore, that the exemption form compulsory
>	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
>	ruling of the Pollock Case which found direct taxes on property
>	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
>	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)
>	Amendment protects very few rights because IT NEITHER
>	rights of individual citizens. (See Slaughter-house Cases, 83,
>	[16 Wall.] 36, 21 L. Ed. 394 (1873)).  Instead, this provision
>	only those rights peculiar to being a citizen of the federal
>	it does not protect those rights which relate to state
>     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
>	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
>	fourteenth amendment] under the protection of the Federal
>	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.

Paul Andrew Mitchell, Sui Juris      : Counselor at Law, federal witness 01
B.A.: Political Science, UCLA;   M.S.: Public Administration, U.C.Irvine 02
tel:     (520) 320-1514: machine; fax: (520) 320-1256: 24-hour/day-night 03
email:   [address in tool bar]       : using Eudora Pro 3.0.3 on 586 CPU 04
website: http://supremelaw.com       : visit the Supreme Law Library now 05
ship to: c/o 2509 N. Campbell, #1776 : this is free speech,  at its best 06
             Tucson, Arizona state   : state zone,  not the federal zone 07
             Postal Zone 85719/tdc   : USPS delays first class  w/o this 08
_____________________________________: Law is authority in written words 09
As agents of the Most High, we came here to establish justice.  We shall 10
not leave, until our mission is accomplished and justice reigns eternal. 11
======================================================================== 12
[This text formatted on-screen in Courier 11, non-proportional spacing.] 13


Return to Table of Contents for

Supreme Law School:   E-mail