Evidence for Klamath Falls

If that were the case, the dams would have to be removed from the TVA, the Columbia River, the Colorado River, etc.

Exactly so.

I agree that the Constitution did not authorize them in the first place. Now that they're there, there is also no authorization for the gubmint to remove them, although the environazis here in the Northwest are demanding that very thing.

Except that the federal government built those dams in part by seizing land through eminent domain. Any law that is not constitutional is no law at all, and thus the law that authorized the seizure of land by eminent domain is no law, and thus the land must be returned to its rightful owners. In order to effect this, the dams have to go.

Whatever the best case the farmers may have, I think that injecting contitutionality into it just muddys the water and shifts the focus.

So why'd the farmers do just that? It unnecessarily weakens their case and opens up the floor for an enviro-whacko dropkick.

It does work. FDR accomplished much damage against the Constitution. This damage is fait accomplis now, 67 years later.

The Klamath Project predates FDR by a fair margin (unless you're counting his time as Navy Undersecretary).

There was no Constitutional provision for the water project's construction. There is no Constitutional provision for it's destruction.

The people who got their land stolen by eminent domain have a right to have that land returned to them.

N0 disrespect intended, but it is pretty much impossible to merge a discussion of the realities of the world with that of political theories.

Whether it constitutionally justified or not, we have a body of laws that have been created legislatively, judicially, administratively, and by regulation at the federal state and local levels.

Actually you are once again wrong - but not for the reason you think.

Well, I'm game...

Your cute attempt to skewer the poster with his "logic" is actually logical - but open to discussion and research. Did the Government, under the enumerated powers clause, have the authority to enter into this contract? I don't know - haven't done the research.

I looked under the various enumerated powers, and building dams and irrigation works is NOT listed.

If you are truly willing to finally admit that the Constitution is a limiting document which specifically limits Federal Power by only authorizing that which is specifically enumerated therein then you have made much progress in your understanding of the document.

It does limit Federal power--but not as much as some of the hyper-strict constructionists would have us believe, as we are not constrained to a late-18th-century state of common law. Common law, IMNHO, boils down to common sense application of first principles to a specific problem, whether that problem is an old one or a new one. Said limitations on Federal power are still fairly strict.

I doubt that you have come to accept that truth and believe you are merely adopting that position for the sake of tweaking the posters to this thread.

I am arguing the logical consequences of the argument presented.

But I digress...back to your quote that I posted and why it is wrong. Under contract law - at equity - the remedy in this case, assuming arguendo, that the government did not have authority to enter into the contract to begin with (again, I'm not taking a position on that issue), where the other party has fully performed on their part of the contract, is to force the Government to perform on it's part of the contract.

Then the plaintiffs should stick to the contract law end of affairs and not wander off into Constitutional matters that can be applied against their case. They raised it; that means that if they draw a "watermelon" judge (green on the outside, pink on the inside), it can and will be used against them.

If the plaintiff raises a basic question about whether the Government has the authority to enter into the contract, then there

The farmers may very well have a right to the water. The question they've inadvertently raised is "do they have a right to said water on John Q. Taxpayer's dime?"

If such a remedy gives rise to causes of action to other parties then the contract and the Court's ruling is admissible in those actions for monetary damages against the government to the aggrieved parties.

What you have to realize is that the left will cheerfully use a strict-construction argument if it advances their particular agenda. Therefore, avoid raising arguments that can be used in this fashion.

As for monetary damages...what if the damaged party demands his land be returned to him for his use, enjoyment, and disposition?

A contract-law argument is sound, and the argument should stay there. Raising issues external to the viable argument is not a

So, any way you hash it, legitimate contract or exercise of extra-Constitutional power, the Government would be forced to live up to the terms of the orginal contract which it has not done to date....Regards.

Regards yourself. For the record, I am not fond of federal water management in any guise, because it tends to (a) centralize local issues (water management is not a national-level matter), (b) opens the door for massive fraud, waste, and abuse, and (c) sets a bad precedent elsewhere.

So much for FR's mission statement, eh?

bump for later

the feds have trumps in that they can set minimum lake levels for the endangered sucker

The "law" resulting in this is in itself unconstitutional IMHO. When that is the case, then it is by God important to bring constitutionality into the picture. It muddies nothing in that regard ... it shines a light on one of the things that must change.

In the end, the people so affected are simply not going to stand for it ... and that type of resistance to such laws, rulings, takings and actions by their own government is going to spread. At some point, such Federal or even state and local actions push beyond a threshold and the the pendulum begins to swing.

We saw that in Klamath, we saw it at Jarbidge and we are going to see more of it until things are restored to their proper order under the constitution. In the end, it will be the people who force the issue. Too bad those who are placed in a position of trust will not di their duty ... but historically such conditions have been reached before.

I am grateful for the progress in Klamath, but it isn't reasolved yet. Hopefully, it ill be soon and without the need for further confrontation.

Hmmmm....it's official. Hell has frozen over - I agree with your entire post.

Running outside to see if the sky is falling....

;^)

This is all I have to say on this subject, Poohbah, because you know the truth. That "subsidy" you refer to allowed the farmers of Klamath Falls to feed YOUR relatives during times of war and depression........and may well again, unless of course people like you manage to wipe out an entire culture. Then you can starve with the liberals.

Forest espouses the original interpretation of Constitutional powers. SCOTUS has long dropped this strict interpretation by the wayside, although Justice Thomas has been known to revisit it with an eye towards attempted resurection. Personally, I wish Forest well, but realistically I do not believe that he will get anywhere.

The following sets forth the original interpretation regarding federal public works from which we have departed:

Jacobson v. Com. Massachusetts, 197 U.S. 11 (1905):

"We pass without extended discussion the suggestion that the particular section of the statute of Massachusetts now in question ( 137, chap. 75) is in derogation of rights secured by the preamble of the Constitution of the United States. Although that preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution, and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States, unless, apart from the preamble, it be found in some express delegation of power, or in some power to be properly implied therefrom. 1 Story, Const. 462."

Early attempts of Congress, under claimed Constitutional powers to legislate "for the general welfare," to direct internal improvements within the States were met with an imphatic veto by President Madison:

To the House of Representatives of the United States:

"Having considered the bill this day presented to me entitled "An act to set apart and pledge certain funds for internal improvements," and which sets apart and pledges funds "for constructing roads and canals, and improving the navigation of water courses, in order to facilitate, promote, and give security to internal commerce among the several States, and to render more easy and less expensive the means and provisions for the common defense," I am constrained by the insuperable difficulty I feel in reconciling the bill with the Constitution of the United States to return it with that objection to the House of Representatives, in which it originated.

"The legislative powers vested in Congress are specified and enumerated in the eighth section of the first article of the Constitution, and it does not appear that the power proposed to be exercised by the bill is among the enumerated powers, or that it falls by any just interpretation with the power to make laws necessary and proper for carrying into execution those or other powers vested by the Constitution in the Government of the United States.

"The power to regulate commerce among the several States" can not include a power to construct roads and canals, and to improve the navigation of water courses in order to facilitate, promote, and secure such commerce with a latitude of construction departing from the ordinary import of the terms strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.

"To refer the power in question to the clause "to provide for common defense and general welfare" would be contrary to the established and consistent rules of interpretation, as rendering the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them, the terms "common defense and general welfare" embracing every object and act within the purview of a legislative trust. It would have the effect of subjecting both the Constitution and laws of the several States in all cases not specifically exempted to be superseded by laws of Congress, it being expressly declared "that the Constitution of the United States and laws made in pursuance thereof shall be the supreme law of the land, and the judges of every state shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding." Such a view of the Constitution, finally, would have the effect of excluding the judicial authority of the United States from its participation in guarding the boundary between the legislative powers of the General and the State Governments, inasmuch as questions relating to the general welfare, being questions of policy and expediency, are unsusceptible of judicial cognizance and decision.

"A restriction of the power "to provide for the common defense and general welfare" to cases which are to be provided for by the expenditure of money would still leave within the legislative power of Congress all the great and most important measures of Government, money being the ordinary and necessary means of carrying them into execution.

"If a general power to construct roads and canals, and to improve the navigation of water courses, with the train of powers incident thereto, be not possessed by Congress, the assent of the States in the mode provided in the bill can not confer the power. The only cases in which the consent and cession of particular States can extend the power of Congress are those specified and provided for in the Constitution.

"I am not unaware of the great importance of roads and canals and the improved navigation of water courses, and that a power in the National Legislature to provide for them might be exercised with signal advantage to the general prosperity. But seeing that such a power is not expressly given by the Constitution, and believing that it can not be deduced from any part of it without an inadmissible latitude of construction and reliance on insufficient precedents; believing also that the permanent success of the Constitution depends on a definite partition of powers between the General and the State Governments, and that no adequate landmarks would be left by the constructive extension of the powers of Congress as proposed in the bill, I have no option but to withhold my signature from it, and to cherishing the hope that its beneficial objects may be attained by a resort for the necessary powers to the same wisdom and virtue in the nation which established the Constitution in its actual form and providently marked out in the instrument itself a safe and practicable mode of improving it as experience might suggest."

James Madison, President of the United States March 3, 1817

Justice Brewer in State of Kansas v. State of Colorado, 206 U.S. 46 (1907), establishes that the federal government has no Constitutional claim to power to legislate on issues of a "national character" beyond the specifically enumerated powers. Such undelegated powers are retained by "all the people of the states":

"...counsel for the government relies upon 'the doctrine of sovereign and inherent power;' adding, 'I am aware that in advancing this doctrine I seem to challenge great decisions of the court, and I speak with deference.' His argument runs substantially along this line: All legislative power must be vested in either the state or the national government; no legislative powers belong to a state government other than those which affect solely the internal affairs of that state; consequently all powers which are national in their scope must be found vested in the Congress of the United States. But the proposition that there are legislative powers affecting the nation as a whole which belong to, although not expressed in the grant of powers, is in direct conflict with the doctrine that this is a government of enumerated powers. That this is such a government clearly appears from the Constitution, independently of the Amendments, for otherwise there would be an instrument granting certain specified things made operative to grant other and distinct things. This natural construction of the original body of the Constitution is made absolutely certain by the 10th Amendment. This Amendment, which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed general welfare, attempt to exercise powers which had not been granted. With equal determination the framers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads: 'The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.' The argument of counsel ignores the principal factor in this article, to wit, 'the people.' Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted. The preamble of the Constitution declares who framed it,-'we, the people of the United States,' not the people of one state, but the people of all the states; and article 10 reserves to the people of all the states the powers not delegated to the United States. The powers affecting the internal affairs of the states not granted to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, and all powers of a national character which are not delegated to the national government by the Constitution are reserved to the people of the United States. The people who adopted the Constitution knew that in the nature of things they could not foresee all the questions which might arise in the future, all the circumstances which might call for the exercise of further national powers than those granted to the United States, and, after making provision for an amendment to the Constitution by which any needed additional powers would be granted, they reserved to themselves all powers not so delegated. This article 10 is not to be shorn of its meaning by any narrow or technical construction, but is to be considered fairly and liberally so as to give effect to its scope and meaning. As we said, construing an express limitation on the powers of Congress, in Fairbank v. United States, 181 U.S. 283, 288, 45 S. L. ed. 862, 865, 21 Sup. Ct. Rep. 648, 650:

"'We are not here confronted with a question of the extent of the powers of Congress, but one of the limitations imposed by the Constitution on its action, and it seems to us clear that the same rule and spirit of construction must also be recognized. If powers granted are to be taken as broadly granted and as carrying with them authority to pass those acts which may be reasonably necessary to carry them into full execution; in other words, if the Constitution in its grant of powers is to be so construed that Congress shall be able to carry into full effect the powers granted, it is equally imperative that, where prohibition or limitation is placed upon the power of Congress, that prohibition or limitation should be enforced in its spirit and to its entirety. It would be a strange rule of construction that language granting powers is to be liberally construed, and that language of restriction is to be narrowly and technically construed. Especially is this true when, in respect to grants of powers, there is, as heretofore noticed, the help found in the last clause of the 8th section, and no such helping clause in respect to prohibitions and limitations. The true spirit of constitutional interpretation in both directions is to give full, liberal construction to the language, aiming ever to show fidelity to the spirit and purpose.'"

In the case of Carter v. Carter Coal Co., 298 U.S. 238 (1936), the Court had occasion to review the limits of the legislative power of Congress as is Constitutionally restricted to specifically enumerated powers. Justice Sutherland, in delivering the opinion of the Court made it clear that a national "general public interest" or promotion of "the general welfare" is insufficient authority to legislate, absent the legitimate authority of a specifically enumerated power:

..."Certain recitals contained in the act plainly suggest that its makers were of opinion that its constitutionality could be sustained under some general federal power, thought to exist, apart from the specific grants of the Constitution...the powers which Congress undertook to exercise are not specific but of the most general character-namely, to protect the general public interest and the health and comfort of the people, to conserve privately-owned coal, maintain just relations between producers and employees and others, and promote the general welfare, by controlling nation-wide production and distribution of coal. These, it may be conceded, are objects of great worth; but are they ends, the attainment of which has been committed by the Constitution to the federal government? This is a vital question; for nothing is more certain than that beneficent aims, however great or well directed, can never serve in lieu of constitutional power."

"The ruling and firmly established principle is that the powers which the general government may exercise are only those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers. Whether the end sought to be attained by an act of Congress is legitimate is wholly a matter of constitutional power and not at all of legislative discretion. Legislative congressional discretion begins with the choice of means and ends wit the adoption of methods and details to carry the delegated powers into effect. The distinction between these two things-power and discretion-is not only very plain but very important. For while the powers are rigidly limited to the enumerations of the Constitution, the means which may be employed to carry the powers into effect are not restricted, save that they must be appropriate, plainly adapted to the end, and not prohibited by, but consistent with, the letter and spirit of the Constitution. McCulloch v. Maryland, 4 Wheat. 316, 421. Thus, it may be said that to a constitutional end many ways are open; but to an end not within the terms of the Constitution, all ways are closed.

"The proposition, often advanced and as often discredited, that the power of the federal government inherently extends to purposes affecting the Nation as a whole with which the states severally cannot deal or cannot adequately deal, and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have never been accepted but always definitely rejected by this court. Mr. Justice Story, as early as 1816, laid down the cardinal rule, which has ever since been followed-that the general government 'can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.' Martin v. Hunter's Lessee, 1 Wheat. 304, 326. In the Framers Convention, the proposal to confer a general power akin to that just discussed was included in Mr. Randolph's resolutions, the sixth of which, among other things, declared that the National Legislature ought to enjoy the legislative rights vested in Congress by the Confederation, and 'moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation.' The convention, however, declined to confer upon Congress power in such general terms; instead of which it carefully limited the powers which it thought wise to intrust to Congress by specifying them, thereby denying all others not granted expressly or by necessary implication. It made no grant of authority to Congress to legislate substantively for the general welfare, United States v. Butler, supra, 297 U.S. 1, at page 64, 56 S.Ct. 312, 102 A.L.R. 914; and no such authority exists, save as the general welfare may be promoted by the exercise of the powers which are granted. Compare Jacobson v. Massachusetts, 197 U.S. 11, 22, 25 S.Ct. 358, 3 Ann.Cas. 765."

If you want to see how the commerce clause was twisted to enlarge federal powers, you can find the information here

This is all I have to say on this subject, Poohbah, because you know the truth. That "subsidy" you refer to allowed the farmers of Klamath Falls to feed YOUR relatives during times of war and depression........and may well again, unless of course people like you manage to wipe out an entire culture. Then you can starve with the liberals.

So much for supporting a return to constitional governance. I guess without Klamath Falls alfalfa supplied with federally-subsidized water, we'll have TEOTWAWKI, dogs and cats will live together in sin, and we'll all starve.

Lets see friend-We all drive on gov subsidized roads,get gov sudsidized electric,gas,water,kids go to subsidized schools and colleges.If in towns you have transit, parks,fire,police, playgrounds, sewers, librarys, all getting gov subsidies.

Oh and Klamath farmers are only ones in basin paying for water year in and year out.(pd last year and didn't get it). Power companies don't pay, rafters don't pay, tribes don't pay,fisherman don't pay, greenies don't pay, ad nauseum. Ed Hubel.

Thanks, Pal. 8<)) Forest

Thank you, Jeff, for your scholarly input.

I do realize that I am attacking a windmill with a sword, but in this case, I must. If we don't stop the bloated bureaucracy somewhere, we will lose our entire Constitutional Republic -- in the foreseeable future. The farmers in the Klamath Basin must win. To lose is to lose our country. This being a national issue, those farmers are not in this alone.

To ALL: You are well advised to listen to Jeff Head. Jeff is a respected authority on the Klamath Basin Crisis.

To those of you who are expounding on the impractical issues of this post, I ask that you read the documentation that I have made available. You will find about 32 years of reseach consumated there for your perusal. It's all hot linked. The KBD will be a good place to start. Then dig into my thesis, Limited Federal Government.

Forest

To date, even though water is again flowing (and I thank God and the brave people who stood against this for that), none of the critical issues have been addressed or resolved.

That is what all my research is about. BUMP and BTTT.

Thanks for the Jacobson, et.al., cases. Very informative.

Upon reviewing all the replies to this post, I make the following comments:

First, I thank all of you for your interest. This is what FreeRepublic is all about.

To resolve the unconstitutional acts of our “trusted” officials in WNDC, it is perhaps best to observe the Constitution with its original intent by the Founding Fathers. Undo the bad acts back to what the Constitution would have allowed in the beginning. Destruction and waste is ridiculous to even think about. It must always be remembered that “We are the government”.

Saying that considering the Constitution will muddy the waters is tantamount to saying we have lost it. The Supreme Law of this land consists of that trilogy known as the Constitution of the US, the Federalist Papers and the US Supreme Court cases. It is the deviation from that supreme law by WNDC that has us in “turbulent waters”.

Certainly in the West, water runs with the land. This is a vital truth. Water rights are filed and followed. But the federal government can not. We all have “unalienable rights”, and right to ownership of water is one of them.

The Indians sold their reservation to the federal government. The Indians have no say in this matter. I hold nothing against Indians. It is the law with which I am concerned.

As pointed out, the water project was paid off in full long ago. I see no subsidy there. Please get your facts straight before expounding.

The only discussion of the military pertinent to this discussion is the Posse Comitatus law which forbids the use of military against civilians. Yet armed federal agents stood in ready to draw stance while the Headgates were closed the last time. I was there and saw it with my own eyes.

Controls are very important here, water being only one, but quickly vital. See my Controls List. (Click on Controls.)

I do not see this as a civil war, but rather RW2 - Revolutionary War 2. Read the Declaration of Independence and update it to today.

It could be true that I will get nowhere. But one thing is certain: I will get nowhere for sure if I do nothing. I am dedicated to saving this Constitutional Republic for my issue or die trying.

Thank you for your interest.

Forest

When you see the rod iron, concrete and surveillance equipment installed around the headgates, you know the issuess have not been resolved and you know that it is not over.

I pray the gov will do the right thing, but know in my heart they were brought kicking and unwilling to the state where the water was turned back on. I pray it will stay on and that these folks rights will be respected and honored ... I am very conerned that it is only temporary.

I have been hearing some things from reliable sources. This is one to watch. Meantime, I have several other research papers pertinent to this issue that I must get done for documentation if needed.

But, I am with you in hoping the government will see the light and get out. I received the return receipts from Bush and Cheney, finally, after instigating a fraud investigation. Maybe that didn't do it, but the timing sure was good. Gail Norton and Veneman got theirs, too. Now, all they have to do is obey the Misprision of Felony law and their Oath of Office. I "shant" hold my breath, as the Little Red Hen would have so intelligently stated in this case.