Thus, it appears that what was meant by the Founders in granting the power to Congress to regulate commerce among the several States has been explicitly defined by the context in which James Madison used it. It specifically refers to controlling the tariffs, duties, import and transfer fees charged by the States on goods passing through them enroute to other States and foreign countries. Nothing less and nothing more. In other words, all the other hogwash that the Congress has seen fit to justify under this clause represents an unconstitutional usurpation of authority.
One of the other powers of Congress that should be discussed when dealing with aspects of criminal law is the power:
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
This power is pretty much self-explanatory and to the best of my knowledge is not being abused. Therefore, the bottom line is don't counterfeit. The government will then legitimately nail your hide to the wall if they catch you.
Yet another power of the Congress which has a direct bearing on criminal law is:
To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Laws of Nations;
This again is pretty much self-explanatory. However, it will be helpful to look at what James Madison has to say about it in The Federalist number 42, pages 265 and 266.
The power to define and punish piracies and felonies committed on the high seas and offenses against the law of nations belongs with equal propriety to the general government, and is a still greater improvement on the Articles of Confederation. These articles contain no provision for the case of offenses against the law of nations; and consequently leave it in the power of any indiscreet member to embroil the Confederacy with foreign nations. The provision in the federal articles on the subject of piracies and felonies extends no further than to the establishment of courts for the trial of these offenses. The definition of piracies might, perhaps, without inconveniency, be left to the law of nations; though a legislative definition of them is found in most municipal codes. A definition of felonies on the high seas is evidently requisite. ...
Thus, it can be seen that the emphasis here is on matters pertaining to crimes committed by people which usually take place outside the jurisdiction of the several States. Therefore, an attempt to apply this power to define felonies that take place within the boundaries of one of the States away from the seas would be an unwarranted extension of it.
As this essay is intended primarily to study the aspects of the criminal jurisdiction of the federal government that might apply to civilians, I will go ahead and skip over the powers of the Congress as they relate to the military in general. Also, a proper discussion of the powers of Congress as they relate to the militia is beyond the scope of what I intend to cover in this essay.
Perhaps the most potentially confusing power of the Congress is expressed as follows:
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;
James Madison explains this in detail in The Federalist number 43 on pages 272 and 273.
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. This consideration has the more weight as the gradual accumulation of public improvements at the stationary residence of the government would be both too great a public pledge to be left in the hands of a single State, and would create so many obstacles to a removal of the government, as still further to abridge its necessary independence. The extent of this federal district is sufficiently circumscribed to satisfy every jealousy of an opposite nature. And as it is to be appropriated to this use with the consent of the State ceding it; as the State will no doubt provide in the compact for the rights and consent of the citizens inhabiting it; as the inhabitants will find sufficient inducements of interest to become willing parties to the cession; as they will have had their voice in the election of the government which is to exercise authority over them; as a municipal legislature for local purposes, derived from their own suffrages, will of course be allowed them; and as the authority of the legislature of the State, and of the inhabitants of the ceded part to it, to concur in the cession will be derived from the people of the State in their adoption of the Constitution, every imaginable objection seems to be obviated.
The necessity of a like authority over forts, magazines, etc., established by the general government, is not less evident. The public money expended on such places, and the public property deposited in them, require that they should be exempt from the authority of the particular State. Nor would it be proper for the places on which the security of the entire Union may depend to be in any degree dependent on a particular member of it. All objections and scruples are here also obviated by requiring the concurrence of the States concerned in every such establishment.
The bottom line to all that is unless you happen to be on a section of land which was specifically ceded by a State government to the federal government for it's use, then this particular clause does not give the federal government any authority over you. Where this gets confusing is that when the Congress passes a law, they refer to these areas that they have complete and total control over by using the term "United States." Black's Law Dictionary, 6th Edition, spells this out on page 1533 where it defines the term "United States" as follows:
This term has several meanings. It may be merely the name of a sovereign occupying the position analogous to that of other sovereigns in family of nations, it may designate territory over which the sovereignty of United States extends, or it may be collective name of the states which are united by and under the Constitution. Thus, when one is studying various different federal laws, and encounters the term "United States" used to describe the area that the law is in effect for, one has to very carefully check the context of such usage. For it is only by the context that the term is used in that it's exact meaning in that specific instance can be determined. Otherwise, one might mistake sections of United States code that apply only to areas of land that have been specifically ceded to the federal government by the various different State governments for sections of United States code that apply equally to all people throughout the entire country regardless of where they are specifically located. One of the major problems that we have today is that there are many federal employees and agents who not only do not understand this distinction but may even be unaware of it. Also, as confusion over which exact definition is being used in a particular section of law will more often than not benefit the federal government by appearing to let it exercise more power than it should, those federal government agents and employees who are aware of it have not been at all hesitant to take advantage of State governments, employees and citizens who think that the term "United States" automatically refers to the entire country as a whole.
The last clause of Article I section 8 that we will examine is the necessary and proper clause. It states that Congress has the power:
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 Office thereof.
Alexander Hamilton goes into almost excruciating detail over what this clause really means in The Federalist, number 33 pages 201 through 203. The emphases used in the quotation are those that Hamilton himself used.
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The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it. United State Constitution, Art. I Sec. 9 Par. 2
"Dissent is the Highest form of Patriotism" -- Howard Zinn
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