Laws and penalties can only be meted out at the federal level through the passage of legislation, voted upon by elected by members of Congress. There is no other mechanism within constitutional authority for placing restraints upon the freedoms of the American public, or of imposing a penalty for exercising activities so restrained. Under Section 8, Article I, Congress is restricted to the punishment of but two human behaviors:
Clause 6. To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
Clause 10. To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;
The only other crime which federal government was authorized to punish is treason, but that falls under the purview of the Supreme Court of the United States (Clause 1, Article 3), not Congress. While Congress was also delegated the authority to regulate commerce, it was not granted the power to criminalize or punish it.
Instead of following this constitutional delegation of powers, however, our Representatives have not only outlawed 14,000 human behaviors outside of granted authority (4,000 “crimes” under Title 18, and 10,000 civil regulations to which the criminal penalty of prison has been assigned) it has delegated lawmaking authority to dozens of agencies not authorized by or found in the United States Constitution. These agencies of questionable origin and authority have now criminalized, sua sponte, in excess of 300,000 additional human behaviors, none of which were previously against the law (Source: American Legislative Exchange article, pasted below). No dictator, tyrant, or “evil empire” in human history has ever generated so many ways to send its citizens to prison. The ‘land of the free’ now has 314,000 statutes with prison as penalty, resulting in the highest level of mass incarceration the world has ever seen.
These are the steps that must be taken to stop unconstitutional legislation:
1. Only legislation passed by Congress has force of law. Any legislation or rule by agencies or any entity other than the Congress of the United States, is null, void, and unenforceable.
2. Before voting for any legislation, each Representative should be required to go on record as having fully read the entirety of the proposed law or regulation. This would act to limit the length of legislation and restrain those outside of Congress who currently write many, if not most, of our nation’s laws, criminal statutes, and regulations, from overburdening our elected Representatives and passing unjust laws.
3. Require that no law be passed that does not require criminal intent on the part of the accused to be proven by government, beyond a reasonable doubt, before a penalty can be imposed. The principle of mens rea must be restored to rule of law.
4. Legislation by the Executive Branch is also unlawful. There is no provision in Article 2 of the United States Constitution for “executive orders,” and no such authority was ever so granted to the Executive Branch by ‘We the People.’ All Executive Orders must be declared advisory in nature, and legislation passed to preclude such unlawful attempts to legislate by the Executive and further attempts to be cause for impeachment.
5. Put an end to seizure of private assets by police or government until a citizen has a) been charged and proven guilty of a crime and b) a relation between those assets and the crime has been established beyond a reasonable doubt.
6. To end the current situation of “government for sale,” I would ultimately suggest that Congress follow the advice of Austrian Economist, Frederick von Hayek, who once said, “Pass one law. Make every statute written or advantage granted, apply equally to all. Only then will the legislature be unable to grant favors to one group, at the expense of, or detriment to, others.” Our government will no longer be for sale to the highest bidder if this sage advice were followed.
Back to rule of law. We need to devolve back to our ultimately law of the land….The United States Constitution. Viva la Devolucion!
Howell W. Woltz
Author, “The Way Back to America: a 10-step plan to restore the United States to constitutional government,”(2015) and "Justice Restored: 10 steps to end mass incarceration in America (2016)
Born in North Carolina and educated at the University of Virginia, Wake Forest University and Caledonian University in Scotland, Howell now lives in Warsaw, Poland with his wife, Dr. Magdalena Iwaniec-Woltz writing, speaking and working for reform of the American system of justice, which now incarcerates more of its citizens than any nation on earth or in history.