letter -- wayne lapierre & ted nugent

8/6/2019 LETTER -- Wayne LaPierre & Ted Nugent

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February 21, 2011

5892 Shoreland TrailOrlando, Florida 32807

NATIONAL RIFLE ASSOCIATION of AMERICAAttn.: Wayne LaPierre & Ted Nugent11250 Waples Mill RoadFairfax, Virginia 22030

Re: You, Ted Nugent and the rest of your membership should take aninterest in an American citizens right to bear arms as a property right.

Dear Wayne & Ted,

Property law in America is largely defined by state law. BOARD OFREGENTS v. ROTH, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33L.Ed.2d 548 (1972) (Property interests, of course, are not created by theConstitution. Rather, they are created and their dimensions are defined byexisting rules or understandings that stem from an independent source suchas state lawrules or understandings that secure certain benefits and thatsupport claims of entitlement to those benefits. Thus, the welfare recipientsin GOLDBERG v. KELLY, supra, had a claim of entitlement to welfarepayments that was grounded in the statute defining eligibility for them. Therecipients had not yet shown that they were, in fact, within the statutoryterms of eligibility. But we held that they had a right to a hearing at which

they might attempt to do so.), but any legal proceeding takes cognizanceof your property claims in light of your status, and federal citizens arecreatures of the federal government which functions in the nature of acharitable corporation with federal citizens as internal beneficiaries thereof,whereas state citizenship derives from English subjectship with its pre-existent civil liberties that were grounded in English common law withgovernment functioning in the nature of a charitable corporation with privatecitizens regarded as external beneficiaries with their civil liberties orfundamental rights held in trust and managed as trust assets by governmentas their trustees.

Since [t]he federal and State governments are in fact but different agents

and trustees of the people, constituted with different power, and designed

for different purposes, most of a states rights must ultimately be derived

from the rights of its citizens. THE FEDERALIST No. 46, at 330 (J. Madison)

(B. Wright ed. 1951). . . . Laurence H. Tribe, AMERICAN

CONSTITUTIONAL LAW, 2d Ed., Mineola, New York: The Foundation


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Press, Inc., 1988, p. 385; and, though these are Laurence Tribes words

and not that which is found in the first paragraph of said FEDERALIST

PAPER, the renowned constitutional lawyer makes it so much clearer; many

of the original states constitutions had provisions in their Declaration of

Rights which made government and government officers entrusted with theright and duty to exercise sovereign power in a representative capacity as

trustees of the people; and, state law, as it existed at the time our federal

constitution was adopted became incorporated as a reference given that said

instrument was a contract.

State citizens compacting with the citizenry in its collective capacity and vice

versa thereby defines the Sovereignty of the State as lying in the citizenry

collectively with government officialselected or appointedits

representatives. VANHORNES LESSEE v. DORRANCE, 2 U.S. (2 Dall.)

304, 310 (1795) ([T]he right of acquiring and possessing property, andhaving it protected, is one of the natural, inherent, and unalienable rights of

man. Men have a sense of property: Property is necessary to their

subsistence, and correspondent to their natural wants and desires; its

security was one of the objects, that induced them to unite in society. No

man would become a member of a community, in which he could not enjoy

the fruits of his honest labour and industry. The preservation of property

then is a primary object of the social compact, and, by the late

Constitution ofPennsylvania, was made a fundamental law. (Emphasis in

bold italics, mine)).

Where the United States Supreme Court decided that a state constitution

was not a contract within the meaning of that clause of the Constitution for

the United States of America which prohibits the states from passing laws

impairing the obligation of contracts in light of the Fourteenth Amendment,

CHURCH v. KELSEY, 121 U.S. 282, 282-283, 7 S.Ct. 897, 30 L.Ed. 960

(1887) (If we understand correctly the questions on which it is claimed

our jurisdiction in this case rests, they are: 1. that the provision in 1, Art.

XIV, of the amendments of the Constitution of the United States that a stateshall not deprive any person of life, liberty, or property without due process

of law prevents the State of Pennsylvania from giving jurisdiction to a court

of equity of a suit brought by the *283* owner of an equitable interest in

land to establish his rights against the holder of the legal title, because it

deprives the holder of the legal title of the right to a trial by jury, which he

would have in a suit at law, and 2. that, as the constitution of a state is the


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fundamental contract made between the collective body of citizens of the

state and each individual citizen, a state statute which violates a state

constitution is a law impairing the obligation of contracts within the

meaning of that term as used in Art. I, 10, clause 1, of the Constitution of

the United States.

It sufficiently appears from the record that the first of these questions was

actually presented to and decided by the court below adversely to the claim

of the plaintiffs in error. . . .), and We cannot find that the other question

was actually presented to the state court for decision. Certainly it cannot be

found in the record in the form it has been stated in the brief of counsel

here. . . . A state constitution is not a contract within the meaning of

that *284* clause of the Constitution of the United States which

prohibits the states from passing laws impairing the obligation of

contracts. (Emphasis mine)Ibid., 121 U.S. 282, 283-284, the stateconstitution can be no contract to federal citizensthe law of presumptions

regarding the plaintiffs in error as citizens pursuant to 1 of the Fourteenth

Amendment; the state constitution is a contract to state citizens of Article

IV, 2, cl. 1; and this citizenship was regarded as a choice of law decision

which must be claimed prior to the Fourteenth Amendment taking effect;

and, the original states had statutes offering citizenship given that requisites

of birth in one of the several united States and residence of a time certain

which were repealed under the guise of federal preemption regarding Article

I, 8, cl. 4, which provides, in pertinent part, that Congress shall havepower to . . . establish an uniform rule of Naturalization;and, Ive attached

Virginias Citizenship statute for your perusal; the problem with these

citizenship statutesif Virginias can be seen as representative of the rest

is that they embraced aliens immigrating from without the United States,

but this has nothing to do with my vested common law right to claim natural

born citizenship pursuant to Article IV, 2, cl. 1.

State citizenship could never be regarded as a choice of law decision

subsequent to the Fourteenth Amendment because federal citizenship is a

second class citizenship: federal citizens are public citizens permanently

attached to governmentthe political jurisdiction thereof; whereas, private

state citizens owe their allegiance, in a personal capacity, to the citizenry

collectively all within the common law jurisdiction of the laws of the United

States of America in contradistinction to those attached to government, e.g.,

government officers, government contractors, military personnel, that


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temporarily waive their rights secured by the federal constitution in return

for those granted or created by the instrument for the duration of their

attachment which is defined by the political jurisdiction as the statutory

jurisdiction and in many instances is more fully defined by the Administrative

Procedure Act.

A private state citizen stepping onto government property temporarily leaves

the common law jurisdiction he/she is domiciled in, waiving his/her rights

secured by the federal constitutionsecured because thats all the

instrument could possibly do with pre-existing rightsto accept rights

granted by government because anyone affecting the internal

administration of government must be regulated.

When our Declaration of Independence took effect, the civil liberties of

English subjectship became the property rights of American state citizensdue to a progression of historical events involving contracts. And if the

following account of these events is true, it would appear that Congress has

converted the property right of state citizenship which is held in trust by

each of the 50 states for the beneficial interests of its citizens to a

proprietary interest of the federal government.

Three of the four principle provisions or statutes restraining the Kings

Prerogative have been declared part of the common law by Letters Patent

which is an executory contract with the people; the Confirmation of the

Charters, (25 Edw. 1), did this for the Magna Carta, and the Crown and

Parliament Recognition Act of 1689, (2 Will. & Mar. c. 1), did this for the

Petition of Right of 1627 and the Bill of Rights of 1688. Halsbury, THE

LAWS OF ENGLAND (Third Edition), Volume 7, Constitutional Law,

BUTTERWORTH & CO. (PUBLISHERS) LTD., London, England, 1954,

482, footnotes (h) & (i) (The extent of the prerogative being necessarily

somewhat vague, it has been found necessary at various times to define its

limits more accurately by statute (h). The principal provisions, from a

constitutional standpoint, are to be found in four great statutes or charters

by which the rights and liberties of the subject are preserved and acts oftyranny by the Crown or its ministers restrained (i).), and The Crown or

its ministers may not punish, imprison, or coerce the subject in an arbitrary

manner. No freeman may be taken or imprisoned, or disseised of his

freehold or liberties or free customs, or be outlawed or exiled, or in any

other wise molested (destruatur, lit. destroyed); nor may he be judged

(nec super eum ibimus), or condemned (nec super eum mittimus), except


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by the lawful judgment of his peers, or by the law of the land; nor may

justice or right be sold, denied, or delayed to any (k).Ibid., 483,

footnote (k).

(footnote (h):The prerogative may also be, in effect, in abeyance where

statute has enacted provisions which enable what might have been done

under the prerogative to be done under the statute; see p. 222, ante.)

(footnote (i):These are Magna Carta, 1215 (see the re-issue Magna

Carta, 1297 (25 Edw. 1), and the confirmation by Confirmation of the

Charters, 1297 (25 Edw. 1) (both printed in Statutes of the Realm); the

Petition of Right (1627) (3 Car. 1 c. 1); the Bill of Rights (1688) (1 Will. &

Mar. sess. 2 c. 2), confirmed by the Crown and Parliament Recognition Act,

1689 (2 Will. & Mar. c. 1); and the Act of Settlement (1700) (12 & 13 Will.

3 c. 2).

Magna Carta is still in force and binding upon the Crown, so far as its

provisions are not obsolete or repealed. It was confirmed, and sometimes

extended, but more frequently curtailed, by Henry III, and by numerous

subsequent charters (Coke reckons thirty-two) down to the reign of Henry

IV, and in particular by the confirmation and re-issue of 1297 (25 Edw. 1),

by which it was directed to be observed as the common law of the realm and

all judgments contrary to it were declared void. The Petition of Right was

drawn up by the Commons 1627 (3 Car. 1 c. 1), and recited in particular

Magna Carta, 1297 (25 Edw. 1 c. 29), and the statute de Tallagio non

Concedendo, 1297 (25 Ed. 1). To the petition itself the King appended the

answer, Soit droit fait come est desire. As to the manner in which the Bill

of Rights was enacted, see note (i), p. 199, ante. These statutes must not

be regarded as curtailments of existing prerogatives, but as declarations of

the fundamental laws of England. See 2 Co. Inst. proem., p. 3; 1 Bl. Com.

(14th Edn.) 128.)

(footnote (k):Magna Carta, 1215 arts. 39, 40 (see the confirmation and

re-issue, 1297 (25 Edw. 1) c. 29). See also the Petition of Right (1627) (3Car. 1 c. 1), ss. 3, 8. But on c. 40 of Magna Carta, see CHESTER v.

BATESON, [1920] 1 K.B. 829, at p. 832, per DARLING, J. (Magna Carta

has not remained untouched; and, like every other law of England, it is not

condemned to that immunity from development or improvement which was

attributed to the laws of the Medes and Persians ); the civil liberties of

English subjects are contract rights grounded in the common law.


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Halsbury, THE LAWS OF ENGLAND (Third Edition), Volume 7,

Constitutional Law, BUTTERWORTH & CO. (PUBLISHERS) LTD.,

London, England, 1954, footnote (b) to 723 (25 Edw. 1 (Magna

Carta) (1297); the Petition of Right (1627) (3 Car. 1 c. 1); the Bill of Rights

(1688) (1 Will. & Mar. sess. 2 c. 2); and the Act of Settlement (1700) (12 &13 Will. 3 c. 2), being in the nature of solemn compacts between the

Sovereign and people, are usually designated quasi-statutes; see title

STATUTES.);BOUVIERS LAW DICTIONARY, Vol. II, The Lawbook

Exchange, Ltd.: New York, NY, 1993, p. 38 (LETTERS PATENT. The

name of an instrument granted by the government to convey a right to the

patentee, as, a patent for a tract of land; or to secure to him a right which

he already possesses, as, a patent for a new invention or discovery. Letters

patent are matter of record. They are so called because they are not sealed

up, but are granted open. Vide Patent.); BLACKS LAW DICTIONARY,

7th Ed., West Group: St. Paul, Minn., 1999, p. 707 (GRANT, n. 1.

An agreement that creates a right of any description other than the one held

by the grantor. Examples include . . . patents, franchises, powers, and

licenses. 2. The formal transfer of real property. 3. The document by

which a transfer is effected; esp. DEED. 4. The property or property right

so transferred.); DOWNS v. UNITED STATES, 113 F. 144, 147 (CA4,

Md. 1902) (The word grant is more comprehensive in meaning than the

term bounty. It implies the conferring by the sovereign power of some

valuable privilege, franchise, or other right of like character, upon a

corporation, person, or class of persons. Under the ancient laws of England

this was deemed in many cases to be the prerogative of the king, who

possessed large powers for the regulation of trade and commerce. It is

stated, for example, by Macaulay, as follows: In addition to his [King

James Is] undoubted right to grant special commercial privileges to

particular places, he long claimed a right to grant special commercial

privileges to particular societies and to particular individuals. And again:

He readily granted oppressive patents of monopoly. 4 Macaulay, HISTORY

OF ENGLAND, pp. 222, 223. A well-known instance of a similar grant was in

the great Case of Monopolies (Cokes Reports, pt. 11, p. 86), where a

patent had been granted to the plaintiff, giving him the sole right to import

playing cards and the entire traffic in them, and the sole right to make such

cards within the realm. The court held that the grant to have the sole

benefit of making them was against the common law and the benefit and


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liberty of the subject. See comment on this case in SLAUGHTER-HOUSE

CASES, 16 Wall. 36, 103, 21 L.Ed. 394.).

Parliament regarded the abdication of King James II a breach of the

contract between the Crown and his people. Halsbury, THE LAWS OF

ENGLAND (Third Edition), Volume 7, Constitutional Law,

BUTTERWORTH & CO. (PUBLISHERS) LTD., London, England, 1954,

footnote (d) of 481 (The refusal of the King to perform the regal

functions, by withdrawing himself out of the realm or otherwise, is abhorrent

to the spirit of the constitution, and was regarded by Parliament as a breach

of the contract between the Crown and people in the case of James II (see

1 Bl. Com. (14th Edn.) 244, 245).).

In the exertion therefore of those prerogatives, which the law has given

him, the king is irresistible and absolute, according to the forms of theconstitution. And yet, if the consequence of that exertion be manifestly to

the grievance or dishonour of the kingdom, the parliament will call his

advisers to a just and severe account. For prerogative consisting (as Mr.

Locke on Gov. 2, 166 has well defined it) in the discretionary power of

acting for the public good, where the positive laws are silent, if that

discretionary power be abused to the public detriment, such prerogative is

exerted in an unconstitutional manner. Thus the king may make a treaty

with a foreign state, which shall irrevocably bind the nation; and yet, when

such treaties have been judged pernicious, impeachments have pursued

those ministers, by whose agency or advice they were concluded.

The prerogatives of the crown (in the sense under which we are now

considering them) respect either this nations intercourse with foreign

nations, or its own domestic government and civil polity. William

Blackstone, COMMENTARIES ON THE LAWS OF ENGLAND, 1st Edition,

University of Chicago Press, 1979: Volume I, Of the Rights of

Persons (1765), pp. 244-245.

Several of the original states of the several united States of Americaobtained colonial charters from the King that stipulated inhabitants of these

colonies had the right to the common law of England as if they were within

its realm. Examine, in pertinent part, Marylands:

Charles, by the Grace of God, of England, Scotland, France, and

Ireland, king, Defender of the Faith, &c. To all to whom these Presents


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come, Greeting. Para. I;[a]lso We do grant and likewise Confirm

unto the said Baron of Baltimore, his Heirs, and Assigns, . . . ample

Rights, Jurisdictions, Privileges, Prerogatives, Royalties, Liberties,

Immunities, and royal Rights, and temporal Franchises whatsoever . . .

as any Bishop of Durham, within the Bishoprick or County Palatine ofDurham, in our Kingdom of England, ever heretofore hath had, held,

used, or enjoyed, or of right could, or ought to have, hold, use, or

enjoy. Para. IV;[a]nd forasmuch as We have above made and

ordained the aforesaid now Baron of Baltimore, the true Lord and

Proprietary of the whole Province aforesaid, Know Ye therefore further,

that We, forges, our Heirs and Successors, do grant unto the said now

Baron, (in whose Fidelity, Prudence, Justice, and provident

Circumspection of Mind, We repose the greatest Confidence) and to his

Heirs, for the good and happy Government of the said Province, free,full, and absolute Power, by the Tenor of these Presents, to Ordain,

Make, and Enact Laws, of what Kind soever, according to their sound

Discretions whether relating to the Public State of the said Province, or

the private Utility of Individuals, of and with the Advice, Assent, and

Approbation of the Free-Men of the same Province, or the greater Part

of them, or of their Delegates or Deputies, whom We will shall be

called together for the framing of Laws, when, and as often as Need

shall require, by the aforesaid now Baron of Baltimore, and his Heirs,

and in the Form which shall seem best to him or them, and the same

to publish under the Seal of the aforesaid now Baron of Baltimore, and

his Heirs, and duly to execute the same upon all Persons, for the time

being, within the aforesaid Province, and the Limits thereof, or under

his or their Government and Power. . . . So, nevertheless, that the

Laws aforesaid be consonant to Reason, and be not repugnant or

contrary, but (so far as conveniently may be) agreeable to the Laws,

Statutes, Customs, and Rights of this Our Kingdom of England. Para.

VII;In Witness Whereof We have caused these our Letters to bemade Patent. Witness Ourself at Westminster, the Twentieth Day of

June, in the Eighth Year of our Reign. Para. XXIII.

. . . [A]nd the inhabitants of Maryland are also entitled to all property,derived to them, from or under the Charter, granted by his Majesty CharlesI. to Crecilius Calvert, Baron of Baltimore. (Emphasis mine) MARYLAND


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CONSTITUTION of 1776, Declaration of Rights, Article III; contractrights are property rights. UNITED STATES TRUST CO. v. NEW JERSEY,431 U.S. 1, 20 n. 16, 97 S.Ct. 1505, 52 L.Ed.2d 92 (1977) (Contractrights are a form of property, and, as such, may be taken for a publicpurpose provided that just compensation is paid. CONTRIBUTORS to

PENNSYLVANIA HOSPITAL v. PHILADELPHIA, 245 U.S. 20 (1917); see ELPASO v. SIMMONS, 379 U.S. 497, 533-534 (1965) (BLACK, J.,dissenting).).

Rights derived from and under the Charter granted to colonial Maryland by

King Charles I of England pursuant to his Letters Patent which is an

executory contract flow through Article V of the Maryland Constitutions

Declaration of Rights as a fundamental right to state citizens of Article IV,

2, cl. 1 of the Constitution for the United States of America. BOARD of

PUBLIC WORKS of MARYLAND v. LARMAR CORPORATION, 262 Md.

24, 277 A.2d 427, 432 (Md.App. 1971) ( . . . The lands in Maryland

covered by water were granted to the Lord Proprietor by Section 4 of the

Charter from King Charles I to Caecillius Calvert, Baron of Baltimore, his

heirs, successors and assigns, who had the power to dispose of such lands,

subject to the public rights of fishing and navigation. BROWNE v. KENNEDY,

5 Har. & J. 195 (1821). By virtue of Art. 5 of the Declaration of Rights in the

Maryland Constitution, the inhabitants of Maryland became entitled to all

property derived from and under the Charter and thereafter the State of

Maryland had the same title to, and rights in, such lands under water as the

Lord Proprietor had previously held. These lands were held by the State for

the benefit of the inhabitants of Maryland and this holding is of a general

fiduciary character. KERPELMAN v. BOARD of PUBLIC WORKS, Md., 276

A.2d 56.);KERPELMAN v. BOARD of PUBLIC WORKS of MARYLAND,

261 Md. 436, 276 A.2d 56, 61 (Md.App. 1971) (Mrs. Kerpelman,

secondly, . . . seeks to establish her standing to sue upon the novel theory

that she, as a member of the public of Maryland, is a beneficiary of a public

trust flowing from Art. 6 of the Declaration of Rights of the Maryland

Constitution stating that persons invested with the legislative or executive

powers of government are Trustees of the Public, and, as such, accountablefor their conduct. . . .

Article 6 is hortatory in naturesee BERNSTEIN v. BOARD of EDUCATION

of PRINCE GEORGES COUNTY, 245 Md. 464, 226 A.2d 243, 248 (1967)

and sets forth the well-established doctrine that the duties of public officials

are fiduciary in character and are to be exercised as a public trust. The


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lands in Maryland covered by water were granted to the Lord Proprietor by

Section 4 of the Charter from King Charles I to Caecillius Calvert, Baron of

Baltimore, his heirs, successors and assigns, who had the power to dispose

of such lands, subject to the public rights of fishing and navigation.

BROWNE v. KENNEDY, 5 Har. & J. 195 (1821). By virtue of Art. 5 of theDeclaration of Rights in the Maryland Constitution, the inhabitants of

Maryland became entitled to all property derived from and under the Charter

and thereafter the State of Maryland had the same title to, and rights in,

such lands under water as the Lord Proprietor had previously held. These

lands were held by the State for the benefit of the inhabitants of Maryland

and this holding is of a general fiduciary character.).

It would appear that the English civil liberties that became the fundamental

rights of American state citizens were grounded in the common law of

England as contract rights, Halsbury, THE LAWS OF ENGLAND (ThirdEdition), Volume 7, Constitutional Law, BUTTERWORTH & CO.

(PUBLISHERS) LTD., London, England, 1954, footnote (b) to 723

(25 Edw. 1 (Magna Carta) (1297); the Petition of Right (1627) (3 Car. 1 c.

1); the Bill of Rights (1688) (1 Will. & Mar. sess. 2 c. 2); and the Act of

Settlement (1700) (12 & 13 Will. 3 c. 2), being in the nature of solemn

compacts between the Sovereign and people, are usually designated quasi-

statutes; see title STATUTES.), and thats what our founding fathers

regarded as the common law as our birthright. CALVIN v. SMITH, 77 Eng.

Rep. 377, 398 n. K (K.B. 1608) (Memorandum 9th of August, 1722, itwas said by the Master of the Rolls to have been determined by the Lords of

the Privy Council, upon an appeal to the King in Council from the foreign

plantations:-

1st. That if there be a new and uninhabited country found out by English

subjects, as the law is the birthright of every subject, so wherever they go,

they carry their law with them, and therefore such new found country is to

be governed by the laws of England. . . . );BOUMEDIENE v. BUSH,

PRESIDENT OF THE UNITED STATES, No. 06-1195, Decided June 12,

2008, 553 U.S. ____ (The common-law . . . , as received into the law of

the new constitutional Republic, took on such changes as were demanded by

a system in which rule is derived from the consent of the governed, and in

which citizens (not subjects) are afforded defined protections against the

Government. As Justice Story wrote for the Court,


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The common law of England is not to be taken in all respects to be

that of America. Our ancestors brought with them its general

principles, and claimed it as their birthright; but they brought with

them and adopted only that portion which was applicable to their

situation. VAN NESS v. PACARD, 2 Pet. 137, 144 (1829).

See also Hall, The Common Law: An Account of its Reception in the United

States, 4 Vand. L. Rev. 791 (1951). (Emphasis mine)) (JUSTICE

SCALIA, with whom THE CHIEF JUSTICE, JUSTICE THOMAS,and

JUSTICE ALITO join, dissenting.);WHEATON v. PETERS, 33 U.S. 591,

607 (1834) (The American colonies brought hither, as their birthright

and inheritance, the common law, so far as it was applicable to their

situation. Judge Chase, in UNITED STATES v. WORRALL, 1 Dall. Rep. 384.

(Emphasis mine)); and,[i]t was very properly admitted by the court

below, on the trial of this cause, that when the American colonies were first

settled by our ancestors, it was held as well by the settlers, as by the judges

and lawyers of England, that they brought with them, as a birthright and

inheritance, so much of the common law as was applicable to their local

situation and change of circumstances; and that each colony judged for

itself, what parts of the common law were applicable to its new condition.

Mr Justice Story recognises the same principle in his Commentaries, vol. 1,

137 to 140. Englishmen, says he, removing to another country, must be

deemed to carry with them those rights and privileges which belong to them

in their native country; and that the plantations formed in this country were

to be deemed a part of the ancient dominions, [33 U.S. 591, 688] and

the subjects inhabiting them to belong to a common country, and to retain

their former rights and privileges. That the universal principle has been (and

the practice has conformed to it), that the common law is our birthright

and inheritance, and that our ancestors brought hither with them, upon

their immigration, all of it which was applicable to their situation. The whole

structure of our present jurisprudence stands upon the original foundation of

the common law. The old congress, in the year 1774, unanimously resolved,

that the respective colonies are entitled to the common law of England. 1Story's Com. 140, and note. (Emphasis mine)Ibid., 33 U.S. 591, 687-

688.

In order to accommodate necessary legislation without deviating from the

principle that all laws impairing the obligations of contract are

constitutionally prohibited, the Court developed two basic analytical devices


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the obligation-remedy distinction and the reserved powers doctrine8

both of which dominated contract clause interpretation for the next century.

John F. Cooper and Thomas C. Marks, Jr., FLORIDA

CONSTITUTIONAL LAW: Cases and Materials, 4th Edition, Carolina

Academic Press: Durham, NC, 2006, p. 473 and n. 8 (citingPOMPONIO v. CLARIDGE of POMPANO CONDOMINIUM, INC., 378 So.2d 774

(Fla. 1979)).

(n. 8:For a brief discussion and comparison of these two approaches,

see, e.g., COMMENT, Revival of the Contract Clause, 39 Ohio St. L. J.

195, 196-98 (1978). . . .); it would appear that the reserved powers

doctrine used to determine impairment of the obligation of contract is most

appropriate when state citizenship in contradistinction to federal citizenship

is in issue.

Into all contracts there enter conditions which arise, not out of the literal

terms of the contract itself, but out of deference to the Sovereignty that was

created by the compact clause of Floridas 1838 Constitution, Declaration of

Rights, 1 in the state citizens in their collective capacity where they were

also part of the Sovereignty of the several united States of America as

American citizens in their collective capacity as each and every state citizen,

in their individual capacity, is party to the implicit compact clause of the

Constitution for the United States of America; and these conditions are

superinduced by the pre-existing and higher authority of the community to

which the parties belong which leaves the citizens attached to the political

jurisdiction free to act as trustees to the private citizens unattached to the

political jurisdiction because they are of the common law jurisdiction.

HOME BLDG. & LOAN ASS'N v. BLAISDELL, 290 U.S. 398, 435-436,54

S.Ct. 231, 78 L.Ed. 413 (1934) (Not only are existing laws read into

contracts in order to fix obligations as between the parties, but the

reservation of essential attributes of sovereign power is also read into

contracts as a postulate of the legal order. The policy of protecting contracts

against impairment presupposes the maintenance of a government by virtue

of which contractual relations are worthwhile,a government which retains

adequate authority to secure the peace and good order of society. This

principle of harmonizing the constitutional prohibition with the necessary

residuum of state power has had progressive recognition in the decisions of

this Court. . . .


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The reservation of this necessary authority of the state is deemed to be a

part of the contract. In the case last cited, [(WEST RIVER BRIDGE v. DIX, 6

How. (47 U.S.) 507), 12 L.Ed. 535 (1848),] the Court answered the forcible

challenge of the states power by the following statement of the controlling

principle, a statement reiterated by this Court speaking through Mr. JusticeBrewer, nearly fifty years later, in LONG ISLAND WATER SUPPLY CO. v.

BROOKLYN, 166 U.S. 685, 692, 17 S.Ct. 718, 721:

But into all contracts, whether made between states and individuals

or between individuals only, there enter conditions which arise, not out

of the literal terms of the contract itself. They are superinduced by the

pre-existing and higher authority of the laws of nature, of nations, or

of the community to which the parties belong. They are always

presumed, and must be presumed, to be known and recognized by all,

are binding upon all, and need never, therefore, be carried intoexpress stipulation, for this could add nothing to their force. Every

contract is made in subordination to them, and must yield to their

control, as conditions inherent and paramount, wherever a necessity

for their execution shall occur. ).

The sovereignty of Florida state and its prerogative of self-protection is at

issue with the omission of the compact clause of the FLORIDA

CONSTITUTION of 1838, Declaration of Rights, 1, and it may be its dual

nature that makes it problematical. ALLIED STRUCTURAL STEEL CO. v.

SPANNAUS, 438 U.S. 234,240, n. 10 omitted, 98 S.Ct. 2716, 57

L.Ed.2d 727 (1978) (The language of the Contract Clause appears

unambiguously absolute: No State shall . . . pass any . . . Law impairing

the Obligation of Contracts. U.S.Const., Art. I, 10. The Clause is not,

however, the Draconian provision that its words might seem to imply. As

the Court has recognized, literalism in the construction of the contract

clause . . . would make it destructive of the public interest by depriving the

State of its prerogative of self-protection. W. B. WORTHEN CO. v. THOMAS,

292 U.S. 426, 433.); the compact as a covenant that is compelled by the

FLORIDA CONSTITUTION of 1838, Declaration of Rights, 1 has a dual

nature in that it must be consummated in Floridas common law jurisdiction

since that is where the state sovereignty resideswhere the state citizens

are domiciledwhich gives said compact a private nature and yet it can only

be brought into being with the aid of the people of the political jurisdiction in

their representative capacitynotably the Florida Attorney Generalwhich


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gives said compact a public nature; it is to be accepted as a commonplace

that the Contract Clause does not operate to obliterate the police power of

the States.

It is the settled law of this court that the interdiction of statutes impairingthe obligation of contracts does not prevent the State from exercising suchpowers as are vested in it for the promotion of the common weal, or arenecessary for the general good of the public, though contracts previouslyentered into between individuals may thereby be affected. This power,which in its various ramifications is known as the police power, is an exerciseof the sovereign right of the Government to protect the lives, health, morals,comfort and general welfare of the people, and is paramount to any rightsunder contracts between individuals. MANIGAULT v. SPRINGS, 199 U.S.473, 480.Ibid., 438 U.S. 234, 241; and, a states police power must beused to preserve the State of Florida acting in the nature of a charitable

corporationa political corporationwith respect to all individuals attachedto government and, at the same time, a states police power must berestrained from impairing civil liberties of those individuals unattached togovernment who are owed a trustees fiduciary duty of protection;[t]heseverity of the impairment measures the height of the hurdle the statelegislation must clear. Minimal alteration of contractual obligations may endthe inquiry at its first stage. Severe impairment, on the other hand, willpush the inquiry to a careful examination of the nature and purpose of thestate legislation.

The severity of an impairment of contractual obligations can be measuredby the factors that reflect the high value the Framers placed on theprotection of private contracts. Contracts enable individuals to order theirpersonal and business affairs according to their particular needs andinterests. Once arranged, those rights and obligations are binding under thelaw, and the parties are entitled to rely on them.Ibid., 438 U.S. 234,245, n. 17 omitted; and, a state citizens vested right to consent to begoverned by contracting to pledge his allegiance in return for the statecitizenrys pledge of protection and vice versa which is a pre-existing right;there is no showing in the record before us that this severe disruption ofcontractual expectations was necessary to meet an important general social

problem. The presumption favoring legislative judgment as to thenecessity and reasonableness of a particular measure, UNITED STATESTRUST CO., 431 U.S., at 23, simply cannot stand in this case.Ibid., 438U.S. 234, 247; there is no showing in the record justifying Floridascompact clause omission;This Minnesota law simply does not possess theattributes of those state laws that, in the past, have survived challengeunder the Contract Clause of the Constitution. The law was not evenpurportedly enacted to deal with a broad, generalized economic or social


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problem. Cf. HOME BUILDING & LOAN ASSN. v. BLAISDELL, 290 U.S., at445. It did not operate in an area already subject to state regulation at thetime the companys contractual obligations were originally undertaken, butinvaded an area never before subject to regulation by the State. Cf. VEIX v.SIXTH WARD BUILDING & LOAN ASSN., 310 U.S. 32, 38. It did not effect

simply a temporary alteration of the contractual relationships of those withinits coverage, but worked a severe, permanent, and immediate change inthose relationshipsirrevocably and retroactively. Cf. UNITED STATESTRUST CO. v. NEW JERSEY, 431 U.S., at 22.Ibid., 438 U.S. 234, 250, n.25 omitted; and, in the instant case, it is the replacement of Floridascompact clause with the Fourteenth Amendment citizenshipa second classfederal citizenshipthat I am complaining about.

Note well, Floridas case law on the subject of the impairment of theobligation of contracts. COASTAL PETROLEUM CO. v. CHILES, 672So.2d 571, 573-574 (Fla. 1st DCA 1996) (. . . [U]nder the contractsclause of our state constitution, little tolerance has been shown for thestates attempts to alter its own contracts. For example, in CHILES v.UNITED FACULTY of FLORIDA, 615 So.2d 671 (Fla. 1993), an agreement forpay raises for state workers was reached and initially funded by thelegislature. When a shortfall in projected revenue required legislative actionto balance the budget, the legislature attempted to postpone the raise. Thesupreme court held this action violated article 1, section 10, explaining:

The right to contract is one of the most sacrosanct rights guaranteedby our fundamental law. It is expressly guaranteed by article 1,

section 10 of the Florida Constitution. . . . The legislature has only avery limited authority to change the law to eliminate a contractualobligation it has itself created. Id., at 673.

While recognizing that the legislature has authority to reduce previouslyapproved appropriations where it can demonstrate a compelling stateinterest, the court emphasized:

Before that authority can be exercised, however, the legislaturemust demonstrate no other reasonable alternative means ofpreserving its contract with public workers, either in whole or in part.Id.

The court concluded that the state had not met that burden where it hadnot demonstrated that the funds were unavailable from other possiblereasonable sources.


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Similarly, the trustees have failed to demonstrate that imposing the bond atissue is the only means available to protect the state lands, particularly inlight of the existing surety requirements of section 377.2425, FloridaStatutes, and Coastals agreement in the lease contract to assumeresponsibility for all damages caused by [its] operations. Accordingly, we

must conclude that the $1.9 billion bond requirement would substantiallyimpair the obligation of the lease contract in violation of article I, section10.); Florida had a contract clause from the very beginning[t]hat no lawimpairing the obligation of contracts shall ever be passed. FLORIDACONSTITUTION of 1838, Declaration of Rights, 19;and, in theinstant case, Floridas compact clause was not created by the Legislatureacreature of the constitutionbut, by the people; the people are the principaland the Legislature is the agent; a constitutionstate or federalis thesupreme law of the land; its the will of the people in their original,sovereign, and unlimited capacity; statute law is the will of the legislature intheir derivative or subordinate capacity. RISON v. FARR, 24 Ark. 161, 87Am.Dec. 52, 55 (1865) (Paterson, J., in VANHORNE v. DORRANCE, 2Dall. 308, in defining what a constitution is, says: It is the form ofgovernment delineated by the mighty hand of the people, in which certainfirst principles of fundamental laws are established. The constitution iscertain and fixed; it contains the permanent will of the people, and is thesupreme law of the land; it is paramount to the legislature, . . . .

And in defining what legislatures are, the same learned judge says: Theyare creatures of the constitution; they owe their existence to theconstitution; they derive their powers from the constitution. It is their

commission, and therefore all their acts must be conformable to it, or elsethey will be void. The constitution is the work or will of the peoplethemselves in their original, sovereign, and unlimited capacity; lawis the work or will of the legislature in their derivative or

subordinate capacity. The one is the work of the creator, the other

of the creature. (Emphasis mine)).

The United States Court of Appeal for the Eleventh Circuit characterized thedifference between the federal and the Florida contract clauses in GEARYDISTRIBUTING COMPANY, INC. v. ALL BRAND IMPORTERS, INC., 931 F.2d1431, 1434 n. 4 (11th Cir. 1991):

. . . [T]he Supreme Court of Florida adopted an approach to the

Florida contract clause that the court termed similar to that of the

United States Supreme Courts approach to the federal contract

clause. [Citation omitted.] Although the approach is similar, Florida

courts interpreting the Florida contract clause appear to tolerate less


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impairment than the federal courts interpreting the federal contract

clause. . . . John F. Cooper and Thomas C. Marks, Jr., FLORIDA

CONSTITUTIONAL LAW: Cases and Materials, 4th Edition, Carolina

Academic Press: Durham, NC, 2006,p. 480 and n. 17.

Indian cases can be very instructive on certain points, as a matter of law,

because there are parallels allowing a comparison of the American Indian to

the American state citizen; they both pre-existed our federal government

and its constitution; examine STATE of WASHINGTON v. BUCHANAN,

138 Wash.2d 186, 978 P.2d 1070, 1076 (1999) (At the time the

treaties were negotiated, approximately three-fourths of Western

Washingtons 10,000 or so inhabitants were Indians. WASHINGTON v.

WASHINGTON STATE COMMERCIAL PASSENGER FISHING VESSEL ASSN,

443 U.S. 658, 664, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979) (hereinafterFISHING VESSEL). . . .); and A treaty, including one between the United

States and an Indian tribe, is essentially a contract between two sovereigns.

FISHING VESSEL, 443 U.S., at 675, 99 S.Ct. 3055; STATE v. COURVILLE, 36

Wash.App. 615, 619, 676 P.2d 1011 (1983).Ibid., 978 P.2d 1070,

1077; and The goal of treaty interpretation is the same as the goal of

contract interpretationto determine the intent of the parties. FISHING

VESSEL, 443 U.S., at 675, 99 S.Ct. 3055; UNITED STATES v. WASHINGTON,

157 F.3d, at 642.Ibid., 978 P.2d 1070, 1078; and A key principle of

treaty interpretation is known as the reservation of rights doctrine. First

announced in UNITED STATES v. WINANS, 198 U.S. 371, 25 S.Ct. 662, 49

L.Ed. 1089, a case involving interpretation of a Stevens Treaty made with

the Yakama Indians,7 the reservation of rights doctrine holds that a treaty

between the federal government and an Indian tribe is not a grant of rights

to the Indians but, rather, a grant from them. In other words, the Indians

ceded certain rights possessed by them at the time of making the treaty but

reserved whatever rights were not expressly granted to the United States.

WINANS, 198 U.S., at 381, 25 S.Ct. 662. See also SEUFERT BROS., 249

U.S., at 199, 39 S.Ct. 203; FISHING VESSEL, 443 U.S., at 679-81, 99 S.Ct.

3055; WILKINSON, supra, at 454-55.

Under the reservation of rights doctrine, tribal members have possessed

certain rights, such as hunting and fishing rights, from time immemorial. A

treaty between a tribe and the United States documents a grant of some

rights from the tribe to the federal government. However, those rights not

expressly ceded in the treaty, as well as those expressly reserved, remain


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with the tribe. JOHNSON, supra, at 553.Ibid., n. 7 omitted; and The

United States Supreme Court has interpreted the treaty language securing

or secured rights to be synonymous with reserving rights previously

exercised. FISHING VESSEL, 443 U.S., at 678, 99 S.Ct. 3055.Ibid., 978

P.2d 1070, 1078-1079; a comparison of STATE of WASHINGTON v.BUCHANAN, supra, with what HALSBURYS LAWS OF ENGLAND has to

say about the nature of English civil liberties as they came to American state

citizens as fundamental rights should allow the understanding that there

should be a corresponding reservation of rights doctrine applicable to

American state citizens and the meaning of securing or secured rights

in the above Indian case is the same regarding American state citizen civil

liberties. RICHMOND NEWSPAPERS, INC. v. VIRGINIA, 448 U.S. 555,

579 & n. 15, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980) (The State

argues that the Constitution nowhere spells out a guarantee for the right of

the public to attend trials, and that accordingly no such right is protected.

The possibility that such a contention could be made did not escape the

notice of the Constitutions draftsmen; they were concerned that some

important rights might be thought disparaged because not specifically

guaranteed. It was even argued that because of this danger no Bill of Rights

should be adopted. See, e. g., The Federalist No. 84 (A. Hamilton). In a

letter to Thomas Jefferson in October 1788, James Madison explained why

he, although in favor of a bill of rights, had not viewed it in an important

light up to that time: I conceive that in a certain degree . . . the rights in

question are reserved by the manner in which the federal powers are

granted. He went on to state that there is great reason to fear that a

positive declaration of some of the most essential rights could not be

obtained in the requisite latitude. 5 Writings of James Madison 271 (G.

Hunt ed. 1904).15 )

(n. 15:Madisons comments in Congress also reveal the perceived need

for some sort of constitutional saving clause, which, among other things,

would serve to foreclose application to the Bill of Rights of the maxim that

the affirmation of particular rights implies a negation of those not expresslydefined. See 1 Annals of Cong. 438-440 (1789). See also, e. g., 2 J. Story,

Commentaries on the Constitution of the United States 651 (5th ed. 1891).

Madisons efforts, culminating in the Ninth Amendment, served to allay the

fears of those who were concerned that expressing certain guarantees could

be read as excluding others.); and let there be no confusion between civil

rights and civil liberties which are fundamental rights. SOWERS v. OHIO


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CIVIL RIGHTS COMMISSION, 20 Ohio Misc. 115, 252 N.E.2d 463, 475

(1969) (Civil rights then, within the meaning of [the Ohio statutory

code] . . . are economic rights functioning as legally enforceable claims

which are structured in legislation. On the other hand civil liberties are

natural rights which appertain originally and essentially to each person as ahuman being and are inherent in his nature; such rights, which are

constitutionally protected, are not actually rights but are immunities, or

restraints on government. (Emphasis mine)).

In summation, Michael Hodge and I need backers to sustain us in order to

bring this forward. In simplistic terms, legal action needs begin with a

petition to the state attorney general for state citizenship pursuant to Article

IV, 2, cl. 1 and Floridas compact clause found in its first constitution with

a simultaneous renunciation of federal citizenship pursuant to 1 of the

Fourteenth Amendmenteach individual state citizen owes allegiance to theSovereignty which lies in the state citizens collectively and not the political

jurisdiction. The political jurisdiction is set up to exercise our sovereignty in

a representative capacity. This petition must be accompanied by a

declaration of domicile which must be seen as having been created in the

common law jurisdictionnot the statutory jurisdiction. SMITH and

ARMISTEAD v. CROOM[2], 7 Fla. 180, 185 (1857) ([T]he law of

citizenship, as it is known in America [ ] is found in American

decisions. This citizenship I understand as equivalent to domicil,

when applied to an American born or a foreigner naturalized. To be acitizen of a State, says Judge Story, a man must have his domicil in the

State.).

We would appreciate hearing from you at your earliest convenience.

Very Truly Yours,

J. Patrick Simpson

321-299-5773 (SU, MO, & TU are days off; otherwise my 12-hour

driving shift precludes me from talking on my cell phone)

letter -- wayne lapierre & ted nugent

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