• Post Reply Bookmark Topic Watch Topic
permaculture forums growies critters building homesteading energy monies living kitchen purity ungarbage community wilderness fiber arts art permaculture artisans regional education experiences global resources the cider press projects digital market permies.com all forums
this forum made possible by our volunteer staff, including ...
master stewards:
  • Nicole Alderman
  • raven ranson
  • paul wheaton
  • Burra Maluca
stewards:
  • Jocelyn Campbell
  • Miles Flansburg
  • Devaka Cooray
garden masters:
  • Dave Burton
  • Anne Miller
  • Daron Williams
  • Greg Martin
gardeners:
  • Joseph Lofthouse
  • James Freyr
  • Bryant RedHawk

The US constitution and the interpretation there of  RSS feed

 
pollinator
Posts: 1703
Location: Western Washington
22
  • Likes 3
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
I thought I would create this tread because the US constitution comes up a lot here in the cider press so I thought there would be interest. I am hopeful that it will not distract from the general thrust of this site as a whole, but to roughly paraphrase the sites founder Paul Wheaton - I like talking about things I think are cool and important with peoples who's opinions I respect. I thought perhaps this tread could do a great deal to tie together many threads which may come up in the press. Or perhaps not. Open as always to deletion.

One of the threads I thought of in particular in my decision to created this thread was the "Is Taxation Moral" Tread. Its an interesting thread for anyone who hasn't read it. In it I personally took the position that taxation is moral but that means of taxation could be immoral. Taxation is Constitutional it is a clearly enumerated power delegated to congress. Inevitable the Federal Reserve Act and the Federal Reserve banking system got brought up, and that is what I am going to address here in my first post on the interpretation of the US constitution. I will be supporting my argument, which I don't necessarily wish to make as a requirement for responses, but it would certainly be appreciated.

The US supreme court has often used The Federalist papers in attempt to determine original intent where an issue is not clearly dealt with by the constitution. The federalist papers where an argument put forward by the framers of the constitution for it's adoption. I, in this first argument, will be using a official account of James Madison's speech before the congress in 1791, as he was one of the primary framers of the constitution. This seems to me to in fact be an important speech to determine the intent of the constitution as a whole. I have a collection entitled 'American Speeches' and I firmly believe this speech hidden away in the middle of a thousand page volume of writings, is as if not more important than the more flowery ones found in that tome. All emphasis in bold or underline is my own anything in italics are the authors own emphasis. It is a long speech and so I will try to keep to the points I feel are most relevant a ... with denote missing text. Again this is an official account of his speech. thus when it is written 'he' it is referring to James Madison and statements made by him before congress. The speech is entitled.

Opposing the National Bank

James Madison wrote:
Is the power if establishing an incorporated bank among the powers vested in the legislature of the United States? This is a question that needs to be examined.
After some general remarks on the limitations of all political power, he took note of the peculiar manner in which the federal government is limited. It is not a general grant, out of which particular powers are excepted - it is a grant of particular powers only , leaving the general mass in other hands. So had it been understood by its friends and foes, and so it was to be interpreted .
As preliminaries to a right interpretation he laid down the following rules:
An interpretation that destroys the very characteristic of the government cannot be just.
Where a meaning is clear, the consequences, whatever they may be are to be admitted - where doubtful, it is fairly triable by its consequences.
In controverted cases, the meaning of the parties to the instrument, if to be collected by reasonable evidence, is a proper guide.
Contemporary and concurrent expositions are a reasonable evidence of the meaning of the parties.
In admitting or rejecting a constructive authority, not only the degree of its incidental to express authority, is to be regarded, but the degree of its importance also; since on this will depend the probability or improbability of its being left to construction.
Reviewing the constitution with and eye towards these positions, it was not possible to discover in it the power to incorporate a Bank. The only clauses under which such a power could be pretended, are either -



It goes on to list several powers listed in Article 1 section 8 and make numerous examples of how these powers cannot be the basis of argument and why the hold no wait. Particular attention was payed to the last paragraph of Article 1 section 8 which states

Article 1 section 8 wrote: To make all Laws which shall be necessary and proper for the carrying into Execution the foregoing Powers, and all others Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.



James Madison wrote: Whatever meaning this clause may have, none can be admitted, that would give an unlimited discretion to Congress.
... The clause is in fact merely declaratory of what would have resulted by unavoidable implication, as the appropriate, as it were, technical means of executing those powers. In this sense it had been explained by the friends o the constitution and ratified by the state conventions.
The essential characteristic of government, as composed of limited and enumerated powers, would be destroyed: If instead of direct and and incidental means, any means could be used...
If, proceeded he, Congress, by virtue of the power to borrow, can create the means of lending, and in the pursuance of these means, can incorporate a Bank, they may do any thing whatever creative of like means.
The East India Company has been a lender to the British government... Congress then may incorporate similar companies in the United States, and that too not under the idea of regulating trade, but under that of borrowing money.
... Whatever then may be conceived to favor the accumulation of capitals may be done by Congress. They may incorporate manufacturers. They may give monopolies in every branch of domestic industry .
... The doctrine of implication is always a tender one. The danger of it has been felt in other governments. The delicacy was felt in the adoption of our own; the danger may also be felt if we do not keep close to our chartered authorities.
... If implications, thus remote and thus multiplied, can be linked together, a chain may be formed that will reach every object of legislation, every object within the whole compass of political economy.
The latitude of interpretation required by such a bill is condemned by the rules furnished in the constitution itself.
...It takes from our successors, who have equal rights with ourselves, and with the aid of experience will be more capable of deciding on the subject, an opportunity of exercising that right, for an immoderate term.



I must interject for a moment here. Is that not a beautiful and profound line "It takes from our successors, who have equal rights with ourselves, and with the aid of experience will be more capable of deciding on the subject, an opportunity of exercising that right."

Is that not how we should approach all of our decision making as a society? With an eye not to our selves but to our posterity?

James Madison wrote: It involves a monopoly, which effect the equal rights of every citizen. It leads to penal regulation, perhaps capital punishments, one of the most solemn acts of sovereign authority.
From this view of the power of incorporation exercised in this bill, it could never be deemed an accessary or subaltern power, to be deduced by implication, as a means of executing another power; it was in its nature a distinct, an independent, and a substantive prerogative, which not being enumerated in the constitution could never have been meant to be included in it, and not being included could never be rightfully exercised.
...This constituted the peculiar nature of the government, no power therefore not enumerated, could be inferred from the general nature of government. Had the power of making treaties, for example, been omitted, however necessary it might have been, the defect could only have been lamented, or supplied by an amendment of the constitution.
But the proposed bank could not even be called necessary to the government; at most it could be but convenient.
...(I)f the powers were in the constitution, the immediate exercise of it cannot be essential - if not there, the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation, leveling all the barriers which limit the powers of the general government...
It appeared on the whole, he concluded, that the power exercised by the bill was condemned by the silence of the constitution; was condemned by the rule of interpretation arising out of the constitution; was condemned by its tendency to destroy the main characteristic of the constitution; ... ; was condemned by the the apparent intention of the parties which ratified the constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and he hoped it would receive its final condemnation...



Whew... James Madison. Copied by hand, err keyboard...

So what does this mean? Clearly the power to borrow money, coin money, and regulate the value of money was solely given to Congress. Why? Because Congress is directly accountable to the people in a way that a corporate bank cannot be. Congress did not and does not have the power to delegate this authority and incorporate a bank. Pursuant to Marbury v. Madison which states

Justice Marshall wrote: Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law [e.g., the statute or treaty].

This doctrine would subvert the very foundation of all written constitutions.



The constitution is the supreme law of the land, anything that is unconstitutional is null and void. A corporate bank created by act of congress in patently illegal. This is not me saying this - that is John Madison saying this. Wouldn't then all federal reserve notes issued, and all debts incurred using them then be null and void as well?

I know that I personally, and nearly every other person I can think of would be more free to pursue their permacultural dreams void of debt - particularly debts owed on property and borrowed at interest from banks which have borrowed at interest from the Federal Reserve: A corporate Bank. In fact the very foundation of this unsustainable modern society would be rocked to the very core. And I contend for the better. The money has been issued in void of law, the debts associated with it as well, any law which is constitutionally void is void from the enactment of the law.

Anyway that's my constitutional assertion of the night. I hope it provides for contemplation and interesting conversation with the aim of moving towards a more just, equitable, and verdant future.


 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Hey! I got A thumbs up! which means at least one person took the time to skim the argument and thought it wasn't complete garbage. So I've got another on for y'all. Same rules of emphasis as above apply here.

The Constitution, United States, Preamble wrote: We the people of the United States, in Order to form a more perfect Union, establish Justice, insure the domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.



So, that's the purpose of the covenant and contract between the government and people, right? To secure, for all time the Blessings of Liberty and make sure that the land is Just and stable enough for people to exercise these rights to their own ends. What rights.

US Constitution Bill of rights Article IX wrote: The enumeration in the Constitution, of certain rights, shall not be construed to deny or to disparage others retained by the people



Which brings me to this letter Dated Oct. 28 1785 written by Thomas Jefferson from a village in France to James Madison entitled:

Property and Natural Right

Thomas Jefferson wrote:Dear Sir, - Seven o'clock, and retired to my fireside, I have determined to enter into conversation with you. This is a village of about 15,000 inhabitants...
As soon as I had got clear of the town I fell in with a poor women walking at the same rate as myself... Wishing to know the condition of the laboring poor I entered into a conversation with her... She told me she was a day laborer at 8 sous or 4d. sterling the day; that she had two children to maintain, and to pay a rent of 30 livres for her house (which would consume the hire of 75 days), that often she could get no employment and of course was without bread



Okay, I just need to stop a moment here. If you, dear reader, are spending more than 75 days of your life per year just in order to pay a rent or mortgage you are worse off than a serf in feudal France immediately prior to the period in history when they started cutting peoples heads off. Let that sink in a moment. He goes on to say that he gave her some money and continued on his walk

Thomas Jefferson wrote: This little attendrissement, with the solitude of my walk, led me into a train of reflections of that unequal division of property which occasions the numberless instances of wretchedness which I had observed in this country and is to be observed all over Europe. The property of this country is absolutely concentrated in a very few hands... These employ the flower of the country as servants... They employ also a great number of manufacturers and tradesmen, and lastly the class of laboring husbandmen. But after all there comes the most numerous of all classes, that is, the poor who cannot find work. I asked myself what could be the reason so many should be permitted to beg who are willing to work, in a country where there is a very considerable portion of uncultivated lands?
... I am conscious that an equal distribution of property is is impracticable, but the consequences of this enormous inequality producing so much misery to the bulk of mankind, legislators cannot invent too many devices for subdividing property, only taking care to let their subdivisions go hand in hand with the natural affection of the human mind. The descent of property of every kind therefore to all the children, or to all the brothers and sisters, or other relations in equal degree, is a political measure as well as a practicable one. Another means of silently lessening the inequality of property is to exempt all from taxation below a certain point, and to tax the higher portions or property in geometrical progression as they rise. Whenever there are in any country uncultivated lands and unemployed poor, it is clear that the laws of property have been so far extended as to violate natural right. The earth is given as a common stock for man to labor and live on. If for the encouragement of industry we allow it to be appropriated, we must take care that other employment be provided to those excluded from the appropriation. If we do not, the fundamental right to labor the earth returns to the unemployed... The small landholders are the most precious part of the state.



He then goes on to list and enumerate many different observation he made on his walk about deer, hares, peaches, plums, ferns, peaches, honey, pheasants.....

Thomas Jefferson wrote: I treasured this observation... But I find that I am wandering beyond the limits of my walk and will therefore bid you adieu. Yours affectionately



You hear that permies? Treasure your observations and know that you have the RIGHT to labor the earth. Who says so? Thomas Jefferson says so, and more importantly YOU say so.

Perhaps next time I will address a letter Jefferson wrote to John B. Colvin entitled "A Law beyond the Constitution" in which he addresses the highest law

Thomas Jefferson wrote: The laws of necessity, of self-preservation...

Or perhaps not. So many letters...

 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
I really don't mean to harp on the National Bank too much but I did just come across this Letter of Thomas Jefferson from his 'public papers' Dated Feb, 15, 1791 and entitled

Opinion on the Constitutionality of a National Bank

Which is fairly long and covers much ground already mentioned above by Madison, but non the less quite interesting and perhaps relevant. Some highlights:

Thomas Jefferson wrote:The bill for establishing a National Bank undertakes among other things: -
1) To form the subscribers into a corporation
...
7) To give them a the sole and exclusive right of banking under the national authority; and so far is against the laws of Monopoly.
To communicate to them a power to make laws paramount to the laws of the States; for they must be construed, to protect the institution from the control of the State legislatures; and so, probably, will the be construed.
I consider the foundation of the Constitution as laid on this ground: That "all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the States and the people." Too take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.
The incorporation of a bank, and the powers assumed by this bill, have not, in my opinion, been delegated to the United States, by the Constitution."



He goes on to point by point describe why he is of this opinion, it is very similar to the view of Madison and including some interesting language. He for instance talks about the farmer who grows a bushel of wheat or the miner that 'digs a dollar' out of the mine, reminding us that dollars used to be more than notes on paper. He continues;

Thomas Jefferson wrote: It would reduce the whole instrument to a single phrase, that of instituting a Congress with the power to do whatever would be for the good of the United States; and. as they would be the sole judges of the good and evil, it would be also a power to do whatever evil they please. ... Certainly no such universal power was meant to be given them. It was intended to lace them up straitly within the enumerated powers, and those without which, as means, these powers could not be carried into effect. It is know that the very power now purposed as a means was rejected as an ends by the Convention which formed the Constitution. A proposition was made to them to authorize Congress to open canals, and an amendatory one to empower them to incorporate. But the whole was rejected, and one of the reasons for rejection urged in the debate was, that then they would have a power to erect a bank...



So... there's the crux of Jefferson's opinion on congresses ability to incorporate a bank. I also stumbled upon another thing which I thought was both interesting and relevant (to the above as another Cider Press topic; Citizens United). in yet another personal Letter between Jefferson and Madison dated Dec. 20th 1787 entitled;

Objections to the Constitution

He begins with amiable points of conversation already entered into and goes on a great length about what he does like about the new constitution, but then goes on to list what he does not. This was before a bill of rights was attached to the constitution and this is his primary lament. Most of his complaints where addressed but I found several things which where not, at least initially, dealt with in amendment

Thomas Jefferson wrote: I will now add what I do not like. First the omission of a bill of rights providing clearly and without aid of sophisms for freedom of religion, freedom of the press, protection against standing armies, restriction against monopolies , the eternal and unremitting force of habeas corpus laws, and trials by jury in all matters of fact triable by the laws of the land... The second feature I dislike, and greatly dislike, is the abandonment in every instance of the necessity of rotation in office, and most particularly in the case of President.



Of course this second great dislike of Jefferson was fixed at least in part by the XXII amendment ratified in 1951 limiting the term of office for a president. Seems Jefferson was a bit ahead of the curb on this one, and it has me wondering about the "Restriction against Monopolies" bit and if perhaps another amendment needs drafting...

More from Jefferson later. A prolific writer that one.

 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Fun Fact the 27th amendment, which is the most recent amendment to the constitution was Originally proposed Sept. 25, 1789 but was not Ratified until May 7, 1992. It reads:

Amendment XXVII, US Constitution wrote: No law varying the compensation for the services of the Senators and Representatives shall take effect until an election of Representatives shall have intervened.



Now you know.
 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
I have of late (seriously... its late) been dwelling on my State Constitution (slightly off topic I know, but as no one seems to be jumping in...). One line which I think I understand, and if I understand correctly do like is

From way down Article One - which is our bill of rights.

Washington State Constitution Article I section 32 wrote:
SECTION 32 FUNDAMENTAL PRINCIPLES. A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.



This seems to suggest, to me at least, that asserting ones rights and standing on principle is smiled upon and indeed seen as necessary for a free society to continue. Now if I can just make sure I am never railroaded and denied trail by jury...
 
steward
Posts: 1793
Location: Western Kentucky-Climate Unpredictable Zone 6b
104
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Landon and a Federal Judge . Sympatico !

https://www.youtube.com/watch?v=UN9n6cVQp4I&list=PLsOqteY0MWq0qBnFhD_nnAEKdQaBLGXxi
 
Posts: 3366
Location: Kansas Zone 6a
36
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Okay, I just need to stop a moment here. If you, dear reader, are spending more than 75 days of your life per year just in order to pay a rent or mortgage you are worse off than a serf in feudal France immediately prior to the period in history when they started cutting peoples heads off. Let that sink in a moment.



And keep in mind that before the build up to the revolution, colonials paid about $10 (TODAY'S money) per person PER YEAR in taxes TOTAL. Less than ONE DAY'S LABOR!!



 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
As a curious creature who continues to be enthralled by social contract theory and who likes to stir the pot I must endeavor to revive this thread.

Two items I found totally interesting and can't help sharing and pondering. Both from state constitutions.

The first,

California State Constitution wrote: ARTICLE I SECTION 20 Noncitizens have the same property rights as citizens.



Woah, that seems like kinda a big deal. My states constitution does not expressly mention non-citizen rights anywhere. Property rights and all that that implies (the possessor as the most likely owner, the right of privacy in enjoyment of, et all). So like, Adverse Possession laws exist. Title 325 of the civil code of California. Noncitizens can obtain a right in real property via adverse possession then correct? I mean clear as day and written in law ^ ^

Can citizenship be obtained through a similar adverse process? Just a thought. Seems relevant.

Second from my own state,

Constitution of Washington State wrote: ARTICLE XXVI
COMPACT WITH THE UNITED STATES



The following ordinance shall be irrevocable without the consent of the United States and the people of this state:
First. That perfect toleration of religious sentiment shall be secured and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.
Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying with the boundaries of this state, and to all lands lying within said limits owned or HELD by ANY Indian or Indian tribes; and that until the title thereto shall have been extinguished by the United States, the same shall be and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States and that the lands belonging to citizens of the United States residing without the limits of this state shall never be taxed at a higher rate than the lands belonging to residents thereof; and that no taxes shall be imposed by the state on lands or property therein, belonging to or which may be hereafter purchased by the United States or reserved for use: Provided, That nothing in this ordinance shall preclude the state from taxing as other lands are taxed any lands owned or held by any Indian who has severed his tribal relations, and has obtained from the United States or from any person a title thereto by patent or other grant, save and except such lands as have been or may be granted to any Indian or Indians under any act of congress containing a provision exempting the lands thus granted from taxation, which exemption shall continue so long and to such an extent as such act of congress may prescribe.
Third. The debts and liabilities of the Territory of Washington and payment of the same are hereby assumed by this state.
Fourth. Provision shall be made for the establishment and maintenance of systems of public schools free from sectarian control which shall be open to all the children of said state.



Can I possibly be reading that right? "The people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying with the boundaries of this state, and to all lands lying within said limits owned or HELD by ANY Indian or Indian tribes"

That says 'The people of Washington all agree that they do not now or shall ever have any right to public lands within state boundaries AND to ALL lands within the state boundaries owned or HELD by ANY Indian or Indian Tribe.'

I think that could be read as basically giving any individual American Indian essentially INSTANT adverse possession to a piece of property. Break in and change the locks hold it and it's yours. Or say, some tribe had a disagreement with some port authority or something. Could they seize the building, evacuate the staff, chain the doors and rock and roll?

I mean that's what the law says, right?

 
steward
Posts: 1191
Location: Torrey, UT; 6,840'/2085m; 7.5" precip; 125 frost-free days
117
bee books chicken duck goat trees
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Landon Sunrich wrote:

California State Constitution wrote: ARTICLE I SECTION 20 Noncitizens have the same property rights as citizens.



Might this not relate to the fact that by 1850 much of California was already settled under Spanish, then Mexican property rights? Protecting the non-American-citizens' centuries' old property rights seems like a good start to entering the American union. Otherwise, new American arrivals could lay claim to long established properties. Our family's house where I grew up traced its deed back to the Mexican land grants.


Constitution of Washington State wrote: ARTICLE XXVI
COMPACT WITH THE UNITED STATES



The following ordinance shall be irrevocable without the consent of the United States and the people of this state:
First. That perfect toleration of religious sentiment shall be secured and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.
Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying with the boundaries of this state,



Something very similar is in the whereas and preambles to the Nevada constitution. Both of these states came into the union after the Homestead Act of 1862, where the federal government was issuing out land ownership to private citizens. It would certainly muck things up if both the state and the federal government asserted the right to disburse the same land. In fact, Wikipedia (that august authority I know) says that the Enabling Acts that allowed the western states to petition for statehood basically had this clause as a requirement for an acceptable petition. Similarly, in the Washington case, it seems that this means the states are acknowledging the federal authority for negotiation of tribal treaties. This does not seem to be part of the Nevada constitution, but with 20+ years of Indian Wars after the end of the Civil War, maybe the later states had more requirements in their Enabling Acts. Utah's enabling act certainly had an unusual provision to exclude polygamy from the definition of religious freedom, so they did evolve over time..

I'm not sure what you mean by adverse process. I'm much more of a historian than a constitutional scholar.
 
Landon Sunrich
pollinator
Posts: 1703
Location: Western Washington
22
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

Ann Torrence wrote: ...[/b] Noncitizens have the same property rights as citizens.

Might this not relate to the fact that by 1850 much of California was already settled under Spanish, then Mexican property rights? Protecting the non-American-citizens' centuries' old property rights seems like a good start to entering the American union. Otherwise, new American arrivals could lay claim to long established properties. Our family's house where I grew up traced its deed back to the Mexican land grants.



That sounds very plausible. I find it very interesting that it is enshrined in the state constitution and filed under 'rights'. With so many long term non-citizens in California it struck me as being pretty relevant.


Constitution of Washington State wrote: ARTICLE XXVI
COMPACT WITH THE UNITED STATES



The following ordinance shall be irrevocable without the consent of the United States and the people of this state:
First. That perfect toleration of religious sentiment shall be secured and that no inhabitant of this state shall ever be molested in person or property on account of his or her mode of religious worship.
Second. That the people inhabiting this state do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying with the boundaries of this state,



Ann Torrence wrote:
Something very similar is in the whereas and preambles to the Nevada constitution. Both of these states came into the union after the Homestead Act of 1862, where the federal government was issuing out land ownership to private citizens. It would certainly muck things up if both the state and the federal government asserted the right to disburse the same land. In fact, Wikipedia (that august authority I know) says that the Enabling Acts that allowed the western states to petition for statehood basically had this clause as a requirement for an acceptable petition. Similarly, in the Washington case, it seems that this means the states are acknowledging the federal authority for negotiation of tribal treaties. This does not seem to be part of the Nevada constitution, but with 20+ years of Indian Wars after the end of the Civil War, maybe the later states had more requirements in their Enabling Acts. Utah's enabling act certainly had an unusual provision to exclude polygamy from the definition of religious freedom, so they did evolve over time..



That also seems like a sound interpretation for the first half of that clause - its the second half concerning land HELD within the state boundaries I'm curious about.

Ann Torrence wrote:
I'm not sure what you mean by adverse process. I'm much more of a historian than a constitutional scholar.



Adverse possession. This is a legal concept that allows for physical possession to become legal possession particularly with real property. It is essentially a statue of limitation on trespassing. Each states laws are different some states, such as Washington, have several different laws concerning this principle. In my state the absolute hard test is 10 years of continuous possession. Basically no matter what, I could be setting up a fence on your property or ever breaking into your house and live there. If I do it openly for more than 10 years and you don't complain you no longer own the property, I do.
 
Posts: 596
Location: Bendigo , Australia
21
dog homestead
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Well it would seem that people complaining about Indians claiming back the land because of the notes you have highlighted, have forgotten that is seems the same land intact was stolen from its rightful owners.
Thus any 'claim ' for it back is simply resetting the situation where the law was broken initially.
 
master pollinator
Posts: 2738
480
books cat chicken duck rabbit transportation trees woodworking
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator

John C Daley wrote:Well it would seem that people complaining about Indians claiming back the land because of the notes you have highlighted, have forgotten that is seems the same land intact was stolen from its rightful owners.
Thus any 'claim ' for it back is simply resetting the situation where the law was broken initially.




This is not true at all actually.

The Indians did not have their land stolen, through uncontrolled immigration they were overwhelmed by numbers of people from away who had superior weapons and when the dust of the many wars was settled, they lost the wars. This sounds cold, but I assure you it is not. This is no different than any other war where land was won or lost by bloodshed. Again, the American Indians really had no chance against the onslought, but the piece missing is that they willingingly gave up their land. It was not without a fight, and they paid a high price (just as in other places in the world and all through antiquity), but they signed Peace Treaties. They gave the land up.

This is no different than if I have a neighbors young kid come to my house, my dog bites them, and in a bitter legal battle my neighbor wins and I end up selling my property in compensation for the loss. Ultimately I sign on the dotted line, forced too granted by circumstances, but I signed nonethless. Because I signed my rights away, I cannot take them back at a later date. Another example of this might be my father-in-law who ended up giving up my wife for adoption to her step-father because he couldnot afford his back child support payments. He did not want to, but circumstances forced his hand. Same with the American Indian.

As for reading old laws, a person has to be really careful because subsquent Supreme Court Determinations nullifies and/or strengthens those old laws. Furthermore certain common sense aspects rule in court without need for specific terms. For instance, most fiscal transactions do not specifically say "in United States Currency" because people just assume non-international transactions means it is going to be in US dollars.

To be honest though I did not read the law to say an American Indian can come back at any time and take a person's residence. Reading old laws is like reading the bible; a person cannot just take out specific passages and make a determination on what it means, it has to be read by chapeters and books to get a sense of context. A great way to apply this is to take the totality of the entire paragraph of the law into light. What does the sentence preceeding the questionable statement say? What does the following sentence say?

....

How can I possibly say all this? Well we have been here since the mayflower and I have a lot of history at my disposal. My deed here goes back to the King of England, but my heritage includes both the European, but also the American Indian. Atrocities were committed on both sides, but despite being Part Indian, I am not going to be bitter about the past. History (in war and peace) has formed my most inner genetics and I am who I am because of it.

What do I mean?

A few years ago my father was enraged that a shirt from LL Bean was made in Vietnam, a war he served two tours of duty in and lost his best friend to a sniper. I told him simply, "we lost enough servicemen, better to be at peace with them, then to be at war."






 
John C Daley
Posts: 596
Location: Bendigo , Australia
21
dog homestead
  • Mark post as helpful
  • send pies
  • Quote
  • Report post to moderator
Travis I am interested in this point.
From Australia I am interested in the topic, and from my readings I see it differently but I am happy to be corrected.
I was thinking of the area where Custer was killed.
Black Moiuntains I think?
My understanding was that it was reserved for the natives, but gold and good grazing  attracted the white man.
So the plan was to starve, or kill the natives out, despite the reservation, etc.
Am I incorrect please?
Thanks
 
Lasagna is spaghetti flavored cake. Just like this tiny ad:
5 Ways to Transform Your Garden into a Low Water Garden
https://permies.com/t/97045/Reduce-garden-watering
  • Post Reply Bookmark Topic Watch Topic
  • New Topic
Boost this thread!