How and Why the Federal Government
Legislates Outside the Constitutional Limitations.

United States Constitution
Article 1, Section 8, Clause 17
"To exercise exclusive Legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings;"

and

United States Constitution
Article 4, Section 3, Clause 2
" The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."

These two clauses authorize Congress to make all needful and necessary legislation in respect to non-state territories. These territories include the District Columbia (not exceeding 10 by 10 miles), U.S. Virgin Islands, Guam, American Samoa, Northern Mariana Islands, Puerto Rico and the Trust Territory of the Pacific Islands. These geographic lands belong to the exclusive jurisdiction of the U.S. government and are controlled by such and under no obligation or limitations to the Constitution, as long as the legislation does not "prejudice any claims of the United States, or of any particular states."

Why such an extreme authority? James Madison, in the Federalist Papers puts it this way.

"The indispensable necessity of complete authority at the seat of government, carries its own evidence with it. It is a power exercised by every legislature of the Union, I might say of the world, by virtue of its general supremacy. Without it, not only the public authority might be insulted and its proceedings interrupted with impunity; but a dependence of the members of the general government on the State comprehending the seat of the government, for protection in the exercise of their duty, might bring on the national councils an imputation of awe or influence, equally dishonorable to the government and dissatisfactory to the other members of the Confederacy."

In brief, Hamilton is saying that the territory of the U.S. government requires the same powers as of any State in order to be recognized accordingly as a national government.

We now need to keep in mind that the U.S. government passes legislation in observance of making all needful rules and regulations for its territorial jurisdiction. This legislation is "exclusive" to its jurisdiction, the same as a State's legislation is for regulating within its territorial jurisdiction.

So why doesn't all legislation pertain to me, in one of the States?

Under the Constitution, the Federal government has some limited powers over the states; those powers granted to it by the States and the Constitution. These limited powers are listed in Article 1, Section 8 of the U.S. Constitution.

"The Congress shall have power

1 To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

2 To borrow money on the credit of the United States;

3 To regulate commerce with foreign Nations, and among the several States, and with the Indian Tribes;

4 To establish an uniform rule of Naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

5 To coin money, regulate the value thereof, and of foreign coin, and fix the Standard of weights and measures;

6 To provide for the punishment of counterfeiting the securities and current coin of the United States;

7 To establish post offices and post roads;

8 To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

9 To constitute tribunals inferior to the supreme Court;

10 To define and punish piracies and felonies committed on the high seas, and offences against the law of Nations;

11 To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

12 To raise and support Armies, but no Appropriation of money to that Use shall be for a longer term than two years;

13 To provide and maintain a Navy;

14 To make rules for the government and regulation of the land and naval forces;

15 To provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions;

16 To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

17 To exercise exclusive Legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; --And

18 To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof."

If legislation coming from Congress is to have force and affect of law within the States, the legislation must be specific and specify the intent, otherwise, the legislation is made pursuant to making all needful rules and regulations for within its territorial jurisdiction. Congress has long forgotten about this requirement to specify which laws apply to the States and which apply only to federal territory. In the late 1800's, school books taught that every American should automatically know which federal laws apply to them and which don't because every American should know the Constitution. Failure to know which laws apply to them as Citizens of the States and those that only apply to Territorial citizens would result in the unfortunate situation of unconstitutional laws being enforced onto them. The sad truth is that this warning taught to school children a hundred years ago, is an every day fact of life today. In the early 1990's, Congress attempted to pass legislation making it law for all Congressional legislation to specify the Constitutional Intent of each law. Such legislation never passed. The thought of Americans realizing that Federal controls on Citizens of and within the States was unconstitutional, was too much for Congress to deal with.

In Foley Brothers, Inc V. Filardo, the Court said,

"It is a well established principle of law that all federal legislation applies only within the territorial jurisdiction of the United States unless a contrary intent appears."

Again, the territorial jurisdiction of the United States is defined as property owned by the United States, not the States themselves. This is further clarified in Hooven v. Evatt in which the Court said,

"In exercising its constitutional power to make all needful regulations respecting territory belonging to the United States, Congress...is not subject to the same constitutional limitations as when legislating for the United States"

Also, in Hooven v. Evatt, the Court puts to rest the definition of "United States", and the Court listed 3 definitions:

1. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in the family of nations.

2. It may designate the territory over which the sovereignty of the United States extends, or

3. It may be the collective names of the states which are united by and under the Constitution.

When legislating for definition number 2, congress is making all needful rules and regulations outside the limitations of Article 1 Section 8 of the U.S. Constitution.

When legislating for definition number 3, Congress is bound to the limitations of Article 1, Section 8 and such legislation must be specific as to it's intend of applying to the states.

It is necessary for Americans to know the distinction of the two types of legislation and which applies to them. It is also important that the Courts and Congress know the distinction and keep the distinction alive. In Downes vs Bidwell, Supreme Court justice, Jon Harlan, forewarned of such a disaster in which the distinction disappears.

"The idea prevails with some, indeed it has found expression in arguments at the bar, the we have in this country substantially two national governments; one to be maintained under the Constitution, with all of its restrictions; the other to be maintained by Congress outside and independently of that instrument, by exercising such powers as other nations of the earth are accustomed to...I take leave to say that, if the principles thus announced should ever receive sanction of a majority of this court, a radical and mischievous change in our system of government will result. We will, in that event, pass from the era of constitutional liberty guarded and protected by a written constitution into an era of legislative absolutism.... It will be an evil day for American Liberty if the theory of a government outside the Supreme Law of the Land finds lodgment in our Constitutional Jurisprudence. No higher duty rests upon this court to exert its full authority to prevent all violation of the principles of the Constitution."

Copyright, American Patriot Network 1995-97