Marco Rubio and the Anti-constitutionalism and Intellectual & Moral Bankruptcy of Our Time.

By Publius Huldah.

In a previous paper, I explained the shift from the philosophy of our Framers, which was based on Logic, Fixed Principles & Judeo/Christian Morality, to the pragmatist/existentialist mindset of today.  With our mindset of today, we are “freed” from the notion that some things are True, other things are False; some things are Right, other things are Wrong; and that there exist fixed Standards and Principles – such as the U.S. Constitution and the moral laws – to which we must conform.

Today, we have nothing to guide us but our own feelings: “I like it”, “I don’t like it”, “I agree”, “I don’t agree”, I “believe” or “I don’t believe”. That is the essence of the existentialist mindset: we make “choices” on the basis of no standard except for what we “like”. Or don’t like. When people disagree, those with The Power decide – on the basis of what they like.

Our politicians ignore Our Constitution. They do whatever they want. Every day, the President violates the Constitution he swore to protect; and Congress does nothing about it.  How could Congress do anything about it?  Since they too abandoned the Constitution, they have no Objective Standard by which to judge the President.  All they can say is, “I don’t agree”.

And WE THE PEOPLE don’t hold our politicians accountable for their violations of Our Constitution.  We keep re-electing them! Why?  Because we too have abandoned the Standard by which to judge their acts: Have you read Our Declaration of Independence and Our Constitution?  Do you understand the concepts of “enumerated powers”, “federalism” and “rule of law”?

Our Existentialist U.S. Senator, Marco Rubio

All our politicians fall short of the mark. None of them seem to understand that they are obligated to obey Our Constitution; and that they have no right to elevate into law their own personal views. They all illustrate the intellectual and moral collapse of our time – even the charismatic Tea Party darling, Sen. Marco Rubio (R, Fl).  Consider his speech of August 2, 2011 before the Senate. ¹ You can read it here, and watch it here.

A few paragraphs into his speech, Rubio says:

I would remind many like myself that were elected in the last election cycle, tightly embracing the principles of our Constitution… [boldface added]

Oh!  A tea party candidate who will “tightly embrac[e] the principles of our Constitution”! We in the Tea Party are all for that, aren’t we?

But then, Rubio goes on to speak of the dispute “between two very different visions of America’s future”.

One group, Rubio tells us, “believe that the job of government is [to] deliver us economic justice, which basically means: an economy where everyone does well or as well as possibly can be done.”

The other group believes “it’s not the government’s job to guarantee an outcome but to guarantee the opportunity to fulfill your dreams and hopes.”

He’s doing OK so far.  But then, he goes on to say, respecting the two views: “By the way, one [is] not more or less patriotic than the other.”  And, “One is not more moral than the other.” ²

No Moral Distinctions?

WHAT?  He sees no moral distinction between, on the one hand, a government which takes – by force – property from one group of people and gives it to other people to whom it does not belong; and, on the other hand, the free country with a federal government of limited and enumerated powers created by Our Constitution?  No moral distinction between legalized plunder and a federal government which respects the private property of The People? ³

When one abandons the moral Principle, “Thou shalt not steal”; then there is no impediment to stealing – assuming you have the power to do it.  So, stealing is just fine when the federal government does it – because they have the power to do it.

Making a Choice – By What Criteria?

Rubio goes on to say:

…America is divided on this point … we must decide …what kind of government do we want to have and what role do we want it to have in America’s future.

Folks! WE THE PEOPLE have already decided this issue: Our decision is enshrined in Our Constitution – the Constitution whose Principles Rubio promised to “tightly embrace”. Our Constitution does not permit the federal government to rob Peter to pay Paul.

Besides, on what basis would we decide?  Rubio has already told us that there are no moral distinctions between a government which robs Peter to pay Paul, and a government which respects the private property of Peter.  Rubio has already told us that those who advocate legalized plunder are “patriots” to the same extent as those who oppose such plunder.

So!  If there are no moral distinctions between the two “very different visions”, and we all go along with Rubio’s abandonment of his promise to “tightly embrace” the Principles of the Constitution, then on what basis do we decide?  We have no basis for making a decision other than our own “likes” and “dislikes”.

And THAT is the existentialist mindset.  A mind “freed” from all standards other than, “I want” or “I don’t want”.  “I like” or “I don’t like”.

So!  Now that Rubio has come to the point where the only standard is what we “like” and “don’t like”, he tells us what he likes:

I believe and we believe in a safety net program, programs that exist to help those who cannot help themselves and to help those who have tried but failed to stand up and try again, but not safety net programs that function as a way of life…

WHERE does the Constitution permit the federal government to redistribute peoples’ private property?  WHO can lay his finger on that Provision of the Constitution which authorizes the safety net programs Rubio “believes in”? ⁴

Rubio told us near the beginning of his speech that he was elected on the basis that he would “tightly embrace” the principles of the Constitution.  Doesn’t “morality” require him to live up to his promise?   Well, if stealing is OK, then breaking your Word must be OK as well.

And who decides whether we continue these “safety net programs” Rubio “believes in”?  People in Congress like Rubio and Rep. Pete Stark (D. Ca.) voting for what they “believe in” – the Constitution be damned? ⁵

And as to THE PEOPLE who don’t want to be robbed to pay for other peoples’ handouts, and who object to being enslaved so that Rubio can continue safety nets he “believes in”: Rubio has stripped them of any moral or legal basis for objecting.

How to Fix This

I do not accuse Rubio of being a bad person. But he has absorbed the prevailing dogma of our time – existentialism – and may not even be aware of it. The first task of man is this: Ask yourself, “What do I believe, and why do I believe it?”  You may find that you believe it for no other reason than that you have always believed it. ⁶

And as a People, we have lost the ability to think and to analyze.  Rubio’s speech [like the speeches of all politicians] reflects this inability to think and to analyze, as well as an existentialist mindset.  If he had argued from Principle – if he had applied the Constitution he promised to embrace – he would have said that Our Constitution prohibits Congress from spending money on anything other than its enumerated powers. If he understood “federalism”, he would have understood that the power to create “safety nets” is reserved to The States or to THE PEOPLE. If he understood “the rule of law”, he would have understood that the obligation of people in Congress is to obey the Constitution.      

And WE THE PEOPLE must return to our Founding Principles.  We must start choosing our candidates on the basis of their conformity to our Founding Principles – not good looks and charm.  We in the Tea Party are every bit as silly as the foolish Democrats & Independents who voted for Obama for the reason that he too was good-looking and charismatic. PH

Endnotes.

¹ I focus on Marco Rubio because he – like all other politicians – illustrates the philosophical problems of which I write; and some are presenting him as the “ideal” running mate for the winner of the Republican nomination.

² Rush Limbaugh understands that Rubio’s words reveal his moral blindness. I first heard of Rubio’s speech on Rush’s show.

³ Frederic Bastiat’s essay, “The Law”, explains the evil of legalized plunder and the moral superiority of limited civil government.  It is one of the masterworks of Western civilization, and the best thing to ever come out of France.  It is clear, and easy to understand. Someone! Give Rubio a copy!

⁴ Our beloved James Madison, Father of the U.S. Constitution, couldn’t find the provisions either. He said:

The government of the United States is a definite government, confined to specified objects. It is not like state governments, whose powers are more general. Charity is no part of the legislative duty of the government. — James Madison, speech in the House of Representatives, January 10, 1794 [boldface added].

The Economics Department at George Mason University provides this quote (among many wonderful others) on its page, Constitutional Limitations on Government.

⁵ Watch this magnificent woman point out to Congressman Pete Stark that obamacare makes SLAVES – in violation of the 13th Amendment – of those who are forced to provide medical care to others.  And watch Stark ignore her moral and constitutional argument against slavery and tell his constituents that “the federal government can do most anything”.

⁶A bit of personal history illustrates this point: I was raised a secular humanist by parents who were secular humanists. When not much older than Rubio, I asked a Christian pastor, “How can you believe all that stuff?”  He answered, “I have preconceptions; you have preconceptions.  Examine yours.”  I did. And discovered that I was a secular humanist simply because I had always been a secular humanist.  I had never examined it.  When I examined it, I found there was no evidence to support my world view.  So!  I abandoned it and learned a new world view based on Fixed Principles – those laws which are woven into the Fabric of Reality.

Let us pray that Sen. Rubio will do the same, and consign his existentialist worldview to the trashcan (where it belongs). The Laws of Morality and the Laws of Logic are among those Laws woven into the Fabric of Reality. And he promised to “tightly embrac[e] the principles of our Constitution”! PH

January 10, 2012; revised Jan. 12, 2012

 

Recess Appointments by the President: What Our Constitution Really Says.

By Publius Huldah.

Much misinformation about The Constitution is put out by those who seek to circumvent its clear provisions.  In Peter Schroeder’s recent article in The Hill, he reports that David Arkush, director of Public Citizen’s Congress Watch division, makes two arguments which Arkush claims permit the President to make a “recess” appointment of someone (Richard Cordray) whose nomination has already been blocked by the Senate.

Arkush reportedly claims that Art. 2, Sec.3, U.S. Constitution, allows the President to force the House and Senate to adjourn; and then, pursuant to Art. II, Sec. 2, last clause, he would be permitted to make a “recess” appointment of his rejected nominee. ¹

Arkush’s next claim is this: The 20^th Amendment states that Congress shall assemble at least once a year, with each session beginning on Jan. 3.  Arkush says that in order to be able to start a session on Jan 3; Congress would have to have stopped a previous session – and between the stopping of the old and the starting of the new, the President may slip in there and make a “recess” appointment of his rejected nominee!

Rubbish.

So!  Let us see how easy it is to look things up in Our Constitution.  You do not have to settle for the rubbish spewed by others and uncritically reported by journalists. You can find out for yourself what Our Constitution really says.

Look It Up In Our Constitution!

FIRST: What does Our Constitution say about presidential “appointments”?  Article II, Sec. 2, cl. 2, says:

…he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone…[emphasis added]

Do you see?  The constitutional scheme is that the President nominates – the Senate confirms or rejects the President’s nomination.  This is the “check” which Our Constitution imposes on the President’s nominations.  The purpose is to protect us from the loons, incompetents, or toadies whom various presidents have, from time to time, nominated.

NOW let us see what Our Constitution says about recess appointments. Article II, Sec. 2, last clause, says:

   The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session. [emphasis added]

Do you see?  The Vacancy must have happened at a time when the Senate was already in Recess!

So!  The President may not properly circumvent the Senate’s constitutionally granted power to reject his nominations by means of cheap gimmicks such as forcing the Congress to adjourn, or by waiting until Congress is in recess, to “recess appoint” someone whom the Senate has already refused to approve!

Check It Out In The Federalist Papers!

The Federalist Papers are authoritative on the genuine meaning of Our Constitution, ²  so you always want to see what they say about any clause in Our Constitution. Here is an online edition of The Federalist Papers with a searchable text.  If you type in “recess”, you will get hits for The Federalist Papers which use that term.

Throughout Federalist No. 76, Alexander Hamilton explains the reasons for the constitutional provision requiring nominations by the President to be submitted to the Senate for their approval or disapproval. In the last 3 paras, Hamilton points out that the Constitution “requires” the cooperation of the Senate in appointments in order to “check” the President and “to prevent the appointment of unfit characters”; and that “the necessity of its [the Senate’s] co-operation, in the business of appointments, will be a considerable and salutary restraint upon the conduct of that magistrate [the President].”

Now, let us see what The Federalist Papers say about “recess” appointments. In Federalist No. 67 (next to last para) Hamilton is very clear that Article II, Sec. 2, last clause, means what it says:

…The ordinary power of appointment is confined to the President and Senate JOINTLY, and can therefore only be exercised during the session of the Senate; but as it would have been improper to oblige this body to be continually in session for the appointment of officers and as vacancies might happen IN THEIR RECESS, which it might be necessary for the public service to fill without delay, the succeeding clause is evidently intended to authorize the President, SINGLY, to make temporary appointments “during the recess of the Senate, by granting commissions which shall expire at the end of their next session.”… [caps are Hamilton’s]

Do you see?  Article II, Sec. 2, last clause, means exactly what it says. Before this clause even kicks in, the vacancy must have happened while the Senate was in “recess”.

So!  The Constitution requires the President to submit his nominations to the Senate for their approval. A President who disbands Congress so that he can circumvent the constitutional provisions which grant to the Senate the power to reject the President’s nominations, is a usurper & a tyrant who should be promptly impeached and removed from office. ³

If the Senate rejects any nomination, the President may not circumvent that rejection by unconstitutional gimmicks such as those proposed by Arkush.

If people wish to show how clever, creative, or original they are, then they should write a novel. When applying Our Constitution, we must display only Obedience.

Now you know how to look things up in Our Constitution and check it out in The Federalist Papers.  Political consultants, journalists, TV pundits, talk show hosts, candidates for office, people in Congress, in the Executive Branch, and sitting on Federal Benches don’t know how to do this.  So you must do it and spread the Word if we are to restore our Constitutional Republic. PH

Endnotes:

¹ Article II, Sec. 3 authorizes the President to adjourn Congress only when there is a “Disagreement” between the Houses “with Respect to the Time of Adjournment”. He is not permitted to adjourn Congress so that he may then circumvent the constitutional provisions which grant to the Senate the Power to reject the President’s nominees!

² See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia  (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School. They said:

…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)  [emphasis added]

³  On impeaching the President for usurpations of power – i.e., acting outside the few enumerated powers granted to the President by Our Constitution – see Federalist No. 66 (2^nd para) & Federalist No. 77 (last para). PH

Posted Dec. 17, 2011

The President’s Enumerated Powers, Rulemaking by Executive Agencies, & Executive Orders.

By Publius Huldah.

On election night, November 2, 2010, Rep. John Boehner said in his victory speech:

…While our new majority will serve as your voice in the people’s House, we must remember it is the president who sets the agenda for our government. … [emphasis added]

Next morning, Ezra Klein commented in the Cult of the President lives on:

I’d like Boehner to show us where in the Constitution it says that the president sets the agenda for the government.

But Boehner is not as astute as Ezra Klein, and does not know that it is our Constitution which sets the “agenda” for the federal government.  The agenda the Constitution sets restricts the federal government to war, international relations & commerce; and domestically, the establishment of an uniform commercial system: a monetary system based on gold & silver, weights & measures, patents & copyrights, a bankruptcy code, and mail delivery (Art. I, Sec. 8, cls.1-16). ¹

And because none of the House Republicans seem to know that our Constitution sets the agenda, and don’t know that our Constitution also enumerates the powers delegated to the President, they are allowing Obama to carry out his “agenda” to transform our Country into a fascist dictatorship.

What are the Enumerated Powers of the President?

The powers of the President are “carefully limited” and precisely defined by our Constitution.  In Federalist Paper No. 71 (last para), Alexander Hamilton asks,

…what would be … feared from an elective magistrate of four years’ duration, with the confined authorities of a President of the United States?…[emphasis added] ²

The answer to Hamilton’s question is this: There would be nothing to fear if Presidents obeyed the Constitution. But they don’t obey it because the dolts in Congress don’t make them obey it!

Well, then!  Here is the complete list of the President’s enumerated powers:

Art. I, Sec. 7, cls. 2 & 3, grants to the President the power to approve or veto Bills and Resolutions passed by Congress.

Art. I, Sec. 9, next to last clause, grants to the executive Branch – the Treasury Department – the power to write checks pursuant to Appropriations made by law – i.e., by Congress.

Art. II, Sec. 1, cl.1, vests “executive Power” [see below] in the President.

Art. II, Sec. 1, last clause, sets forth the President’s Oath of Office – to “preserve, protect and defend the Constitution of the United States”.

Art. II, Sec. 2, cl.1:

• makes the President Commander in Chief of the armed forces when they have been called by Congress into the actual service of the United States. ³

• authorizes the President to require the principal Officers in the executive Departments to provide written Opinions upon the Duties of their Offices.

•  grants the President power to grant Reprieves and Pardons for offenses against the United States, ⁴  but he can not stop impeachments of any federal judge or federal officer.

Article II, Sec. 2, cl. 2 grants to the President the power:

• to make Treaties – with the advice and consent of the Senate. ⁵

• to nominate Ambassadors, other public ministers and Consuls, federal judges, and various other officers – with the advice and consent of the Senate.

Article II, Sec. 2, cl. 3 grants to the President the power to make recess appointments, which expire at the end of Congress’ next session.

Art. II, Sec. 3:

• Imposes the duty on the President to periodically advise Congress on the State of the Union, and authorizes the President to recommend to Congress such measures as he deems wise.

• Authorizes the President, on extraordinary Occasions, to convene one or both houses of Congress [e.g., when he asks Congress to declare War]; and if both houses can not agree on when to adjourn, he is authorized to adjourn them to such time as he deems proper.

• Imposes the duty upon the President to receive Ambassadors and other public Ministers.

• Imposes the duty upon the President to take care that the Laws be faithfully executed, and

• Imposes the duty upon the President to Commission all the Officers of the United States.

That’s it! Anything else the President does is unlawful and a usurpation of powers not granted.

 What is the “executive Power”?

So!  The granting of the “executive Power” to the President is not a blank check giving him power to do whatever he wants.  The “executive Power” is merely the power to put into effect – to implement – those Acts of Congress which are within Congress’ enumerated powers.  Thus, if Congress establishes “an uniform Rule of Naturalization” (as authorized by Art. I, Sec. 8, cl. 4), it is the President’s duty to implement and enforce the law Congress makes. The President is to carry out – to execute – Acts of  Congress.

But note well:  His Oath of Office – to “preserve, protect and defend the Constitution”, shows that the President must use his independent judgment ⁶  as to which acts of Congress are and are not constitutional.  Thus, as shown in this paper, “The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges“, the President has the duty, imposed by his Oath, to act as a “check” on Congress (and on federal courts, as well).

Accordingly, when Congress makes a “law” which is not authorized by the Constitution, it

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution”… Federalist No. 33 (last two paras); ⁷

and since the President’s Oath requires him to “preserve, protect and defend the Constitution“, the President must refuse to enforce an unconstitutional “law” made by Congress.  Otherwise, he’d be in collusion with the legislative branch to usurp power over The People. ⁸

So, then!  Acting as a check on Congress (and federal courts) by refusing to enforce unconstitutional “laws” (and opinions), as well as the duty of entertaining foreign dignitaries, are the only occasions where the President may act alone. His prime responsibility is to do what Congress tells him.

Article I, Sec. 1 & The Unconstitutional Administrative Law State

Now, you must learn of “administrative law” – i.e., rulemaking by Executive Agencies. ⁹

Article I, Sec.1, U.S. Constitution, says:

All legislative Powers herein granted shall be vested in a Congress of the United States.

That little phrase is of immense importance. It means what it says, that only Congress may make laws: laws are to be made only by Representatives whom we can fire every two years, and by Senators whom we can fire every six years.

But in Joseph Postell’s “must read” paper, “Constitution in Decline“, he shows that during the administration of the nefarious Woodrow Wilson, Congress began delegating its lawmaking powers to agencies within the Executive Branch.  Since then, Congress passes an overall legislative scheme, and delegates the details to be written by un-elected, un-accountable bureaucrats in the various Executive Agencies.  They write the “administrative rules” which implement the Legislation. The result is the execrable Code of Federal Regulations (CFR), which is accepted, by the indoctrinated members of my profession, as “law”. Go here to see the abominable CFR.

May the President Lawfully Make “Executive Orders”?

The Guiding Principle is this:  The President has no authority to do ANYTHING apart from constitutional authority or statutory authority (assuming the statute itself is constitutional).

1.    So!  Respecting those matters within his constitutional authority & duties, and authority & duties imposed by constitutional statutes, the President may make “orders” – call them “executive orders” if you like.

For example: It is the President’s constitutional duty “to take care that the Laws be faithfully executed”. Thus, he has the duty to enforce [constitutional] laws made by Congress.  How does he enforce the laws?  Sometimes, by means of “orders”.

To illustrate: Say Congress makes a law, as authorized by Art. I, Sec. 8, clause 6, making it a felony to counterfeit the Securities and current Coin of the United States.  If U.S. Attorneys are not prosecuting counterfeiters, the President should “order” them to do it. Or fire them.

But say Congress makes a law which purports to make possession of shotguns shorter than 18 inches a crime.  Since the President’s Oath requires him to “preserve, protect and defend the Constitution”, he is obligated to “order” the U.S. Attorney General and the U.S. Attorneys to refuse to prosecute anyone for possession of sawed-off shotguns. Why?  Because such a “law” is unconstitutional as outside the scope of the legislative powers granted to Congress in Our Constitution.  It also violates the Second Amendment.

Clearly, such an order to refuse prosecution falls within the President’s constitutional duties (enforce the Constitution), and he is giving an order to people within the Executive Branch. The President is the one who is charged with carrying out the Acts of Congress – he has the “executive Power”.  But because of his Oath, he may not carry out unconstitutional “laws”. That is one of the checks on Congress.

The President may also properly make orders addressing housekeeping issues within the Executive Branch:  Dress codes, no smoking or drinking on the job, he may encourage executive agencies to hire qualified handicapped people, and the like.  Just as if you have a business, you may make orders addressing such matters.

So! Do you see?  The President may lawfully make orders to carry out his constitutionally imposed powers and duties, and powers bestowed by statutes which are constitutional; and he may address “housekeeping” issues within the Executive Branch.

2.   But a President may not lawfully, by means of “orders”, exercise powers not delegated to him by the Constitution or by (constitutional) Acts of Congress.

Yet Obama has issued various executive orders which are unlawful because they are not authorized by the Constitution or by (constitutional) Acts of Congress. Here are two executive orders which are particularly pernicious because they undermine our foundational Principle of “Federalism”, and have as their object the “improper consolidation of the States into one … republic.”: ¹⁰

E.O.13575 – Establishment of the White House Rural Council: This E.O. provides for over 25 federal departments & agencies to run every aspect of rural life!

E.O. Establishing Council of Governors: The effect of this E.O. is to erase the Independence and Sovereignty of the States and consolidate us into a national system under the boot of the Executive Branch.

Joseph Stalin couldn’t do better than this.  These E.O.s are blatantly unconstitutional as usurpations of powers not granted in The Constitution!  So,  Nullify them!

3.   Likewise, executive agencies may not, by means of “administrative rulemaking”, usurp the powers of Congress. (Remember, because of Art. I, Sec.1, all rulemaking by executive agencies is unconstitutional)!

Here are several cases of such unconstitutional rulemaking:

a)  When Congress refused to pass the DREAM ACT, which provided a path to citizenship for certain categories of illegal aliens, ICE had no authority to implement it, in whole or in part, by executive “memo”!  Power over Rules of Naturalization (i.e., who qualifies for citizenship and what are the procedures) is expressly granted to Congress by Article I, Sec. 8, cl. 4, which grants to Congress alone the Power “To establish an uniform Rule of Naturalization”.

The President has no constitutional power over immigration & naturalization except to enforce the Acts of Congress respecting those subjects.  Article II, Sec. 3, which imposes upon the President the duty to “take care that the Laws be faithfully executed”, requires the President to enforce such constitutional Acts of Congress.

But if Congress refuses to make a law respecting naturalization, a President who enacts it anyway,  via “executive order”, or “administrative regulation”, or “administrative memo” by his underlings in the various executive agencies, is acting lawlessly.  His unlawful acts should be nullified, and he should be removed from office for his usurpation.

b) Congress recently did not pass three sinister and grotesquely unconstitutional bills Obama wanted: “Card check“, “Cap and Trade“, and the Disclose Act.  These bills are unconstitutional as outside the scope of the legislative powers granted by our Constitution to Congress. Nowhere does our Constitution give Congress authority to make laws about labor unions (“card check”), or to regulate carbon emissions – CO², the stuff humans and animals exhale, and plants & trees need for photosynthesis (“cap and trade”), or requiring people with federal contracts to report their personal political activities to the Executive Branch (“Disclose Act”)!

Since Congress may not lawfully make laws on such subjects, no one can. Yet, Obama is circumventing the Constitution and implementing these three failed & unconstitutional bills by agency rulemaking or executive order!:

The National Labor Relations Board, is implementing “card check” by agency regulation.  Read this.

The Environmental Protection Agency is implementing “cap and trade” by agency regulation. Read this.

And it appears that Obama – in furtherance of his “agenda” to reward his supporters and punish non-supporters – is considering signing an executive order to implement the Disclose Act. Read this.

So! Let us sum this up:  The President must always uphold our Constitution. When Congress makes an unconstitutional law, the President must refuse to implement it; and he may, by means of executive orders, instruct people in the Executive Branch not to comply.  E.g., if a President orders the U.S. Attorneys to decline to prosecute persons for possession of sawed-off shotguns, he would be acting lawfully because Congress has no authority to ban them. But the President is violating the Constitution when he implements “card check” by agency rules made by the NLRB; when he implements “cap & trade” by agency rules made by the EPA; and the “Disclose Act” by executive order, because the President and executive agencies (as well as Congress) do not have authority over these objects; and further, no one in the Executive Branch has authority to make “laws”!

What Should we do about illegal Executive Orders & Rules made by Executive Agencies?

A Congress filled with he-men and she-women, instead of ignorant cowards, wusses, and wimps, would impeach obama for his usurpations in signing unconstitutional executive orders, and in circumventing Congress by having executive agencies implement, by means of administrative rules, legislation which Congress did not pass.  In Federalist Paper No. 66 (2nd para), Hamilton expressly states that impeachment is an essential check on a President who encroaches on the powers of Congress; and in Federalist No. 77 (last para), points out that impeachment is the remedy for “abuse of the executive authority”.

But since the people in Congress are too ignorant and weak to rid us of the abomination in the White House, the States and Counties must nullify unconstitutional executive orders and administrative rules, or submit to slavery and the destruction of our Constitutional Republic. Since State and County officials have taken the Oath to support the U.S. Constitution (Art. VI, last cl.), they are bound by Oath to refuse to submit to illegal executive orders and illegal agency rules.

And of course, WE THE PEOPLE and our businesses must also spit on such illegalities by the Executive Branch. Our “creature” (Federalist No. 33, 5th para, Hamilton), has turned into Frankenstein, and has lost all legitimacy. PH

Endnotes:

¹  In Federalist No. 45 (9th para), James Madison, Father of Our Constitution, says,

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State. [boldface added]

²  In Federalist No. 48, Madison points out that in our representative republic,

…the executive magistracy is carefully limited; both in the extent and the duration of its power… (5th para) [i.e., limited & enumerated powers and 4 year terms]

…the executive power being restrained within a narrower compass [than that granted to the legislative branch], and being more simple in its nature… (6th para)

In Federalist No. 75 (3rd para), Hamilton says,

…The essence of the legislative authority is to enact laws, or, in other words, to prescribe rules for the regulation of the society; while the execution of the laws, and the employment of the common strength, either for this purpose or for the common defense, seem to comprise all the functions of the executive magistrate… [boldface added]

In Federalist No. 78 (6th para), Hamilton says,

…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules … The judiciary … has no influence over … the sword or the purse …and …must ultimately depend upon the aid of the executive arm … for the efficacy of its judgments. [boldface added].

Read the list of the President’s enumerated powers!  The President’s powers really are “confined” and “carefully limited” to carrying out laws made by Congress and enforcing certain judicial decisions, military defense (a power shared with Congress), appointing officials (subject to Congress’ approval), and entertaining foreign dignitaries. That’s it!

³ Only Congress has the power to declare war (Art. I, Sec. 8, cl. 11)!  See clauses 12-16 showing that Congress has the power to determine the funding for the military, and to make the Rules for the discipline & training of the military and the Militia.

⁴ Re “Offenses against the United States”: I explain here the criminal laws Our Constitution permits Congress to make.  It’s a short list.  Take note, you federal criminal defense lawyers.

⁵ I explain the treaty making power of the United States in two papers here

⁶ During the Terri Schiavo case, Alan Keyes spoke on the radio about the constitutional powers of the President.  I seem to recall that Dr. Keyes spoke of the President’s obligation to exercise his “independent judgment” as to whether an act of Congress or a federal court opinion is constitutional. Whatever he said, he opened my eyes, and enabled me to see the elegant beauty of our Constitution.

⁷  Hamilton also says in Federalist No. 33 (6^th para)

…it will not follow…that acts of …[the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of … [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union [Art. VI, cl. 2]…EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [caps are Hamilton's, boldface mine]

⁸ Madison says in Federalist No. 44 (last para before 2.):

…the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; … [boldface added]

The President must not collude with the legislative  or judicial branches to usurp power over The People!  He must honor his Oath!

⁹ Most of the existing “federal” executive agencies are unconstitutional.  They meddle in matters which are not the business of the federal government, as power over the matters is not granted by our Constitution to the federal government.  Here are a few of the unconstitutional federal agencies: the Departments of Agriculture, Labor, Health and Human Services, Housing and Urban Development, Energy, Education, Transportation, and Homeland Security.  Likewise for the Environmental Protection Agency, the Federal Communications Commission, the Office of Science and Technology Policy, the Office of National Drug Control Policy,  the National Economic Council, the Small Business Administration, the Council on Environmental Quality, etc., etc., etc.

¹⁰  Progressives have erased the concept of “federalism” from our minds. “Federalism” refers to the form of our government & the division of powers between the national government and the States. A “Federation” (which is what our Constitution creates) is an alliance of independent States associated together in a “confederation” with a national government to which is delegated authority over the States in specifically defined areas ONLY (i.e., the enumerated powers granted to Congress by our Constitution).  Those enumerated powers are the only areas wherein the national government is to have authority over the States.  In all other matters, the States have supremacy, are independent, and sovereign!  Learn more of “federalism” here and here.

Our Framers warned against the consolidation of the sovereign States into one national sovereignty:   In Federalist No. 32 (2nd para), Hamilton writes,

An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States…. [caps are Hamilton's; boldface mine]

Federalist No. 62 (5th para) says,

… the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.  So far the equality ought to be no less acceptable to the large than to the small States; since they are not less solicitous to guard, by every possible expedient, against an improper consolidation of the States into one simple republic. [boldface mine]

And in Federalist No. 39  (6th para), Madison says,

“But it was not sufficient,” say the adversaries of the proposed Constitution, “for the convention to adhere to the republican form. They ought, with equal care, to have preserved the FEDERAL form, which regards the Union as a CONFEDERACY of sovereign states; instead of which, they have framed a NATIONAL government, which regards the Union as a CONSOLIDATION of the States.” And it is asked by what authority this bold and radical innovation was undertaken? The handle which has been made of this objection requires that it should be examined with some precision….[caps are Madison's]

Madison then gives a brilliant exposition of the “national” and “federal” aspects of Our Constitution.  More than any other Paper, No. 39 addresses the primary political problem of our Time:  The  destruction of “federalism” by eradicating all vestiges of sovereign & independent States. 

We are a trusting People easily lead astray.  Make something sound “patriotic”, and we are all for it.  Since 1892, American public school children have been indoctrinated with the statist Lie that ours is an indivisible national government.  This was done by means of the Pledge of Allegiance:  “….one nation … indivisible…”.  Is it any wonder that the author of this nasty bit of poison, Francis Bellamy, was a socialist who worked with the National Education Association to institute this statist indoctrination into the public schools?  This pernicious pledge is why you don’t know, and no one knows, that our Constitution created a “federation” of sovereign & independent States, united only for the limited purposes enumerated in the Constitution. Wikipedia has good info on Bellamy. PH

August 30, 2011

Why the “Balanced Budget Amendment” is a Hoax – and a Deadly Trap

By Publius Huldah.

You can not responsibly support a proposed Amendment to Our Constitution unless you have read and understand the proposal and how it would change our Constitution. You must look behind the nice sounding name!  Will the Balanced Budget Amendment (BBA) really “reign in” the federal government? Will it really “show them” that they have to balance their budget the same as we do?

Or does it actually legalize spending which is now unconstitutional?  Is it actually a massive grant of new constitutional powers to the President and the federal courts – a grant which will cut the Heart out of The Constitution our Framers gave us?

Amending the Constitution is serious business – and you are morally bound to get informed before you jump on The Amendment Bandwagon.

So, lay aside your giddy joy at the fact that all 47 U.S. Senate Republicans are co-sponsoring the Balanced Budget Amendment, Senate Joint Resolution 10 (March 31, 2011).  Let’s go through it.  What you believe the BBA will do, and what it will actually do, are two very different things indeed.

But First:  How Did We Get a National Debt of $14.4 Trillion?

Congress gave us a debt of $14.4 trillion which increases at the rate of $4 billion a day.  Let us look at a few of the items which comprise this $14.4 trillion debt:

Congress spent $2.6 million to teach Chinese prostitutes how to drink responsibly. Congress appropriates $147 million a year to subsidize Brazilian cotton farmers.  Congress spent $3.6 million to fund a study of the sex lives of dope-smoking, menstruating monkeys.  Congress paid $500,000 to paint a salmon on an Alaska Airlines passenger jet.  Congress appropriates $6.9 billion a year for the National Science Foundation where they fund such research as that which revealed the amazing fact that sick shrimp do not perform as well on stamina tests as do healthy shrimp.¹  Citizens Against Government Waste’s pig book shows Congress spent $16,547,558,748. on pork projects last year.  In Sen. Tom Coburn’s Waste Book 2010, which lists 100 spending projects, he shows that $1.5 million was spent to spruce up apartments in Shreveport, La. before they were torn down.

All this spending – every penny of it – and trillions more which is not here listed – has one thing in common:  It is all unconstitutional as outside the scope of the powers delegated to Congress in the Constitution.  Congress has no constitutional authority to spend money on these projects.

So!  It was Congress’ unconstitutional spending which put us in the mess we are in today.

What Does Our Constitution Permit Congress To Spend Money On?

WE THE PEOPLE ordained and established a Constitution wherein the powers WE delegated to the federal government are limited and defined – “enumerated”.  Read the list at Art. I, Sec. 8!  Basically, all WE gave Congress authority to do for the Country at large is international relations, commerce & war; and domestically, the creation of an uniform commercial system (weights & measures, patents  & copyrights, a money system based on gold & silver, bankruptcy laws, mail delivery & road building.)  Some Amendments authorize Congress to make laws protecting civil rights. That’s about it, Folks!  The list of objects on which Congress may lawfully appropriate funds is short.  The only significant authorized expense is the military.  James Madison, Father of the U.S. Constitution, said in Federalist No. 45 (9th para):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.  [boldface added]

Note that Madison contemplated that the federal government would be financed in large part by taxation on foreign commerce.  That is because the constitutional powers of the federal government are so limited & defined!  The States and the People are to handle everything else.

Do you now see that Our Constitution does not authorize Congress to pay for a museum for neon signs ($5.2 million),  to archive memorabilia for a rock group ($615,000), or to post poems in zoos ($997,766.)?  [See Sen. Coburn's Waste Book 2010].  Congress has no lawful authority to do most of what they do. They just do it because they want to, they have been doing it for a long time, and WE haven’t known enough to stop them.  Our $14.4 trillion debt was caused by Congress’ spending in thousands of areas where they have no constitutional authority to spend.

My dear Friend Mark said it best  here:

…the federal government’s expenditures are limited by the Constitutional grants of authority, NOT THE AMOUNT OF REVENUE THEY CAN GENERATE. [caps are Mark's].

 

Is the BBA Really the Solution? 

So!  These 47 Senate Republicans (and some in the House) are showing you how much they now “care” about fiscal responsibility by supporting the BBA.  But think:  Why don’t they control their spending now?  The Republicans control the House – NO spending can get through the House unless the Republicans approve it.  So if the Republicans really wanted to control spending and balance the budget, they could do it now. Why don’t they do it?  Because they don’t want to.

Furthermore, the BBA they support with such broad smiles and glib promises of future fiscal responsibility, doesn’t make them control their spending.  Instead, it would legalize spending which is now unlawful and would markedly increase the powers of the federal government. And it would do nothing to reduce spending.  In short, the BBA is a Scam and a Terrible Trick.

What Would We Get From the BBA ?

In plain English, this is what the 10 Sections of the BBA mean  [but read it yourself -  it's very short]:

Section 1: They won’t spend more than they take in unless they vote to spend more than they take in.

Section 2: They won’t spend more than 18% of the GDP unless they vote to spend more than 18% of the GDP.

Section 3: The President will write the budget: He will designate the taxes, and what the money will be spent on.  He won’t spend more than he decides to tax you for, and he won’t spend more than 18% of the GDP.  The GDP is a computation made by the Bureau of Economic Analysis in the Department of Commerce, an agency under the control of the President. [Do you see?  The President controls the agency which computes the number which limits his spending.]

Section 4: Congress won’t make a law raising your taxes unless they vote to raise your taxes.

Section 5: Congress won’t raise the debt limit unless they vote to raise the debt limit.

Sections 6 & 7: Congress can waive the above provisions of the BBA (except for Sec. 4 which says they can’t raise your taxes unless they vote to raise your taxes) when there is a declared war or  a “military conflict” which they think justifies their waiving the above provisions of the BBA.

Section 8:  Courts can’t order your taxes to be raised. [But you can bet your life that this section, together with section 3, will be seen to authorize the President to order that your taxes be raised.]

Section 9: I leave this to others to explain. But be assured the President’s minions will define stuff however he wants; make stuff “off-budget” or “on-budget” to fit his agenda.

Section 10:  Congress can make laws to enforce the BBA, and can rely on numbers provided by the President who is to be given constitutional authority to order tax increases & decide how to spend the money.

So!  Do you see?  You get no benefit from the BBA.  But it will cause us irreparable harm.

How Would the BBA Cut the Heart Out of Our Constitution?

1. It would Transform Our Constitution From One of Enumerated Spending Powers To One of General (“Unlimited”) Spending Powers.

Congress’ Powers are enumerated.  Thus, the objects on which Congress may lawfully appropriate funds are limited to those listed in the Constitution.  Congress has ignored the limitations on its powers for many decades – but at least the limitations are still in the Constitution, to be invoked if We The People ever repent. ²

But the BBA, by ignoring the unconstitutional objects of Congress’ spending, and by merely limiting the amount of such spending to 18% of the GDP & the taxes the President assesses, repeals the enumerated powers aspect of our Constitution.  Furthermore, if Congress limited its appropriations to its enumerated powers, they could not possibly spend a sum as vast as 18% of the GDP.  Thus, the BBA is clear intention to repeal the enumerated powers, and transform the federal government into one of general and unlimited powers.

Congress’ idiotic spending is now unlawful & unconstitutional. But with the BBA, it would become lawful & constitutional, as long as the total spending doesn’t exceed the limits (unless they waive the limits).  With the BBA, it will become lawful for them to appropriate funds for whatever the President (who will write the budget) says!  ³

2. The BBA Transfers Control of the “Purse” from Congress to the President.

The federal government didn’t even have a budget until Congress passed the Budget and Accounting Act of 1921. That “law” purported to grant budget making power (taxes & appropriations) to the President.

But the Budget Act of 1921 is unconstitutional: The Constitution places the taxing & appropriations powers squarely in the hands of  Congress – not the Executive Branch; and contrary to the beliefs of indoctrinated lawyers, Congress may not “amend” the Constitution by making a law. ⁴

Article I, Sec. 8, cl. 1, grants to Congress the Power to lay and collect Taxes; and Art. I, Sec. 9, next to last clause, grants to Congress the Power to make the appropriations:

No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law; and a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.

Accordingly, for most of our history, Congress made appropriations as the need arose; determined the taxes, and kept records of  both. [See Bruce Bartlett's excellent history of the budget process.]

Our Framers gave us an elegant system of separated powers, where Congress commands the purse – not the Executive Branch and not the Judicial Branch!  In Federalist No. 78 (6^th para), Alexander Hamilton outlines this separation of powers:

…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules …  The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society… ⁵

In Federalist No. 58 (4^th para from end) Madison explains why the House alone is granted power to propose taxes (Art. I, Sec. 7, cl. 1):  To protect The People from overreaching by the other branches of the federal government:

…The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing … all the overgrown prerogatives of the other branches of the government. This power over the purse may … be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance…

Ponder Hamilton’s and Madison’s words. You must understand what they are saying if we are to restore our Constitutional Republic.  Otherwise, the BBA will usher in a totalitarian dictatorship.

Pursuant to the unconstitutional Budget Act of 1921, the President has been preparing the budget. Since the Budget Act is unconstitutional, the President’s preparation of the budget has been likewise unconstitutional.  Section 3 of the BBA would legalize what is now unconstitutional and unlawful.

But Section 3 of the BBA does more than merely legalize the unlawful. It actually transfers the constitutional power to make the appropriations and to determine taxes to the President.  Congress will become a rubber stamp.

Now look at this pretty little snare:  Section 8 of the proposed BBA says:

No court of the United States or of any State shall order any increase in revenue to enforce this article.  [emphasis added]

Our Constitution does not grant to courts the power to “order” tax increases.  So why does Sec. 8 of the BBA say they can’t do it?

It’s a trap!  There is an ancient maxim of  legal construction which goes like this:  “The Expression of One Thing is the Exclusion of Another”:

An implied exclusion argument lies whenever there is reason to believe that if the legislature had meant to include a particular thing within the ambit of its legislation, it would have referred to that thing expressly. Because of this expectation, the legislature’s failure to mention the thing becomes grounds for inferring that it was deliberately excluded. Although there is no express exclusion, exclusion is implied. …[emphasis added]

Why does Sec. 8 of the BBA exclude the President?  From this exclusion, one may reasonably infer that the intent of Sec. 8 is to permit the President to order tax increases.  If the BBA is ratified, you can be sure that Presidents will claim power under Sec. 8 of the BBA to order tax increases. That inference is strengthened by the fact that Sec. 3 of the BBA transfers constitutional power over the Budget to the President.

So!  The BBA surrenders the purse to the President!  Our Framers understood the danger of having the sword & the purse held by one person.  That is why our Constitution provides for Congress to make the decisions on taxes & appropriations; and, as pointed out in Federalist No. 72 (1^st para), the President is to apply and disburse “the public moneys in conformity to the general appropriations of the legislature”.

With the BBA, Congress’ sole remaining constitutional function over taxing & spending will be to rubberstamp the dictates of the President.

3. The BBA grants judicial power over taxing & spending to the federal courts.

Article III, Sec. 2, cl. 1 states:  “The judicial Power shall extend to all Cases…arising under this Constitution.”

If the BBA is ratified, it will become an Amendment to the Constitution which is subject to the judicial authority of the federal courts.

You say the BBA won’t transfer power over the purse to the President?  You say Congress won’t become a mere rubberstamp whose sole remaining function over taxing & appropriations is to enact into law the dictates of the President?

Who will decide?  Since this would be an issue “arising under the Constitution”, the supreme Court will decide. The Judicial Branch – a branch which Hamilton took care to point out should have no power whatsoever over The Purse.

And so five (5) people on the supreme Court will decide an issue which goes to the heart of our Constitution – an issue which the People clamoring for the BBA don’t even know exists.  And remember:  Our supreme Court is filled with fallen people who looked at Sec. 1 of the 14th Amendment and said it means that women may kill their babies. They looked at the 1^st Amendment and said it means that Congress may regulate political speech, and courts may ban Christian speech in the public square, but it gives Westboro “baptists” a “right” to spew their filth & hate at private funerals of dead American heroes.

If the BBA is ratified, do you really want five (5) of those judges deciding this issue? ⁶

What is the Solution to The Financial Plight Congress has put us in?

We have 47 Republican U.S. Senators who don’t understand [or do they?] the ramifications of the BBA which some of them (most notably Senators Jim De Mint & Mike Lee) are determined to cram down our throats.  Many supposedly conservative talk show hosts & pundits  (most notably, Redstate.com), are carrying their water.  Whether these people are fools or tyrants, I do not know; but you must learn that you can not trust anybody. You must insist that people prove what they say!

WE THE PEOPLE must reclaim our glorious Heritage. We must find & support candidates who understand the Constitution, obey it, and agree to work to dismantle the unconstitutional federal apparatus.  We can eliminate the trillions of dollars of unconstitutional spending by restoring constitutional government.  In an orderly fashion, we can dismantle the multitude of offices and agencies and departments of the last 100 years which harass us and eat out our sustenance.

Oh my People!  The grinning politicians and pundits who promise you “fiscal responsibility” with their BBA will actually strip you of the protections of Our Constitution. Their BBA will legalize a totalitarian dictatorship.  Do not be deceived by them – they are leading you astray, and their BBA will destroy us.

Oh you Proponents of this thoroughly Evil Scheme:  I throw my glove in your face:  Show me, if you can, where I am wrong.  Or rethink your position. PH

End Notes:

¹  Our Constitution does not authorize Congress to fund scientific research. Congress’ only power in the areas of the arts and sciences is to issue patents and copyrights (Art. I, Sec. 8, cl. 8).  If Congress obeyed Our Constitution and stopped funding “scientific” research, the proponents of these idiotic studies would have to do something useful instead of sucking at the taxpayers’ teat.

²  We must repent of  our desire to live at other peoples’ expense. This is the contradiction which undermines the Tea Party.  Many don’t want a constitutional government of limited & enumerated powers. They just want to eliminate funding for programs they don’t like. They want their social security, their Medicare, their government retirement pensions, their perks.  I beg each of you who is now living at other peoples’ expense:  Are you willing to sacrifice your grandchildren so that  you can keep your handouts?  Or will you accept an orderly & gradual dismantlement of the unconstitutional “entitlement” programs?

³  Are you aware that federal executive agencies are forming their own SWAT teams?  Are you aware that DHS is federalizing our local police and using their fusion centers to turn them into a national secret police – America’s version of the STAZI?  Building Obama’s “civilian national security force” which is “just as powerful just as strong just as well funded as the military” takes money.  Lots of it!  The BBA will permit the President to write into the Budget the funding needed to build this armed force; and it will be under his sole & personal control.

⁴  Article V sets forth the exclusive methods of amending The Constitution.

⁵  In Federalist No. 26, Hamilton addresses how Congress is to determine (after public deliberations) the appropriations for the military; and warns that the President must never be given power over the purse respecting armed forces: 

The legislature of the United States will be OBLIGED, by this provision [Art. I, Sec. 8, cl. 12], once at least in every two years, to deliberate upon the propriety of keeping a military force on foot; to come to a new resolution on the point; and to declare their sense of the matter, by a formal vote in the face of their constituents. They are not AT LIBERTY to vest in the executive department permanent funds for the support of an army, if they were even incautious enough to be willing to repose in it so improper a confidence…. (9^th para) [capitals are Hamilton's; boldface mine]

It has been said that the provision which limits the appropriation of money for the support of an army to the period of two years would be unavailing, because the Executive, when once possessed of a force large enough to awe the people into submission, would find resources in that very force sufficient to enable him to dispense with supplies from the acts of the legislature…. (12th para)

Do you see that Hamilton warned us not to trust the President with power to determine the funding for the armed forces?  Learn from Hamilton & Madison. Or perish.

⁶  If the President disagrees with the supreme Court’s decision, he – who would, thanks to the BBA, hold both the sword & the purse – could ignore it with impunity. PH

June 27, 2011; revised Sept. 9, 2011

Nullification: Smacking Down Those Who Smackdown The Constitution.

By Publius Huldah.

In response to a recent article in the National Review by Allen C. Guelzo, a nullification denier and history professor at Gettysburg College, and two responding letters to the Editor,¹ one “Celticreeler” posted an astute rebuttal you can read here.

The issue in the National Review article and letters is this: Guelzo denies that States have any right to nullify unconstitutional laws made by Congress. He looks at Art. VI, clause 2, U.S. Constitution (the “supremacy clause”) which reads,

    This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land… [emphasis added]

and concludes that any law made by Congress is the “supreme” law of the land; and everyone must obey, unless & until five (5) judges on the supreme Court say they don’t have to. He claims that only judges have authority to nullify unconstitutional acts of Congress.

In her rebuttal, Celticreeler correctly points out that the phrase, “in Pursuance thereof”, “limit[s] the federal government’s supremacy to laws that were made pursuant to the Constitution…”

She also reprints Guelzo’s reply to her letter to the Editor. And what he says in his reply is so at odds with the words of our Framers,  that I am compelled to respond. 

We will look at four Founding Principles which Guelzo rejects and reverses.

1. What does “In Pursuance thereof” Really Mean?

Guelzo says in his reply,

“In pursuance thereof ” was intended only to recognize that, at the time of the Constitution’s adoption, no body of legislation had yet been made under the Constitution…

What?   He presents no proof  – though he does throw in the factoid that “The supremacy clause was written by an anti-Federalist, Luther Martin, whom we might presume to have entertained a few anxieties about an overmighty federal government”.

Actually, Luther Martin said the clause he proposed was “very materially different from the [supremacy clause] clause adopted by the Constitution” ²;  but I will not quibble.

In any event, it is The Federalist Papers which are authoritative as to the genuine meaning of the Constitution ³ – not speeches of delegates to the Federal Convention (thou they can shed light). And this is what The Federalist Papers say about Art. VI, clause 2, and “in Pursuance thereof”:

In Federalist No. 33 (6^th para), Alexander Hamilton says:

…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [capitals are Hamilton's]

In the next para, Hamilton says that a law made by Congress which is not authorized by the Constitution,

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…. [boldface mine]

In Federalist No. 27 (last para), Hamilton says:

…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS… [capitals are Hamilton's; other emphasis mine]

And in Federalist No. 78 (10^th para),  Hamilton says:

…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis mine]

Do you see?  Federalist No. 33, 27, & 78 are clear:  Acts of  Congress which are not authorized by the Constitution are “void” – they are “mere usurpations and deserve to be treated as such”. They are not made “in Pursuance” of the Constitution and have “supremacy” over nothing. ⁴

2. Who is Supposed to Look to the U.S. Constitution for Permission: The Federal Government, the Member States, or the People?

Guelzo says (in his reply):

If the Founders had wanted to grant nullifying power-to the states or any other body-they would have had more than sufficient opportunity to include it in the Constitution.  [boldface added]

Guelzo thus asserts that the States [i.e., the Members of the Federation] don’t have any powers unless “the Founders” said they could have them and wrote it into The Constitution!  He demands that the States look to the Constitution to see what they are permitted to do! According to Guelzo, if the Constitution doesn’t give States permission, they can’t do it.

Guelzo has it backwards – our Founding Documents refute his words. The second paragraph of The Declaration of Independence says that Rights come from God and to secure these rights, ⁵

Governments are instituted among Men, deriving their just powers from the consent of the governed, -

So, governments have only those powers “the governed” permit them to have!  In our Constitution, WE THE PEOPLE, acting through our Representative States, decided what powers WE would delegate to the federal government.

Accordingly, WE THE PEOPLE created the federal government when WE, acting through our States, ordained & established the Constitution for the United States of America. In the Constitution, WE itemized the powers WE granted to each branch of the federal government.  No Branch of the federal government may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in the federal government, are merely our “creatures”.  In Federalist No. 33 (5^th para), Hamilton calls the federal government our “creature”; and points out that it is up to THE PEOPLE to smackdown the federal government when it “overpass[es] the just bounds of its authority and make[s] a tyrannical use of its powers”. ⁶

In Federalist No. 32 (2^nd para), Hamilton says,

…the State governments …clearly retain all the rights of sovereignty which they before had, and which were not… EXCLUSIVELY delegated to the United States. This exclusive delegation …of State sovereignty would only exist in three cases… [caps are Hamilton's, boldface mine]

The Tenth Amendment says:

   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.  [emphasis added]

Do you see? Guelzo reverses & perverts the whole point of Our Declaration of Independence, Our Revolution, & Our Constitution.

It is each of the three branches of the federal government (Legislative, Executive, & Judicial) who must look to the Constitution to see what powers WE THE PEOPLE, acting through our States, allowed them to have. All other powers are reserved to The States or The People.

3. Who Has Authority to Nullify Unconstitutional Laws Made by Congress?

Guelzo says, respecting the power to nullify a law made by Congress,

…That determination lies in the hands of the courts, under the principle of judicial review laid down in McCulloch v. Maryland in 1819…

McCulloch v. Maryland?  In McCulloch v. Maryland, the supreme Court decided [wrongly] that Congress has power under various of the enumerated powers listed at Art. I, Sec. 8, clauses 1-16, and the “necessary & proper clause” (Art. I, Sec. 8, last clause) to incorporate a national bank.  That case is not about “judicial review”.

Perhaps he meant Marbury v. Madison (1803).  Even so, Hamilton had already “laid down” the principle of judicial review in Federalist No. 78 (8^th -15^th paras) some 15 years earlier.

And in the Constitution, WE did not delegate EXCLUSIVE authority to federal judges to nullify unconstitutional laws! Furthermore, the Oaths of Office at Art. VI, cl. 3 & Art. II, Sec. 1, last clause, impose on all who take them an obligation to uphold the Constitution against usurpations by the federal government.  Thus, nullification is both a Power retained by the States & The People as well as an Obligation imposed by Oath. 

And REMEMBER!  Our Rights pre-date & pre-exist The Constitution. Thus, nullification of usurped powers is a natural right – it is the remedy against insupportable oppression by the federal government. ⁷

4. In Our American System, WE Do Not Take Oaths To Obey Persons, Institutions, Or Judges.

I have proved elsewhere that nullification of unconstitutional laws, executive orders, supreme Court opinions and treaties is required by the Constitutional Oaths of office. That Oath requires that all who take it swear or affirm that they will support the Constitution.  In our American system, we do not take Oaths to obey persons, institutions, or courts.   Here are two papers explaining the legal & moral imperatives of nullification: Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson   and  The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges  ⁸

Guelzo’s Statist Vision.

Guelzo’s vision is this:  Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and the Member States & WE THE PEOPLE must obey, unless & until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law is unconstitutional. In other words, Guelzo holds that only the federal government may question the federal government.

His words are poison.  Under his vision, the federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five judges, not the Constitution, is the sole measure of its powers.  It is an evil ideology. And, as I have proved herein, it is antithetical to our Founding Documents and Principles. ⁹ PH

Endnotes:

¹ Celticreeler states that Guelzo’s original article appeared in the February 21, 2011 issue of National Review.  In response, she submitted a letter to the Editor, and Guelzo replied.  Celticreeler reprints Guelzo’s reply in her linked rebuttal.  Guelzo’s original article is available to subscribers only.

² You can read Martin’s actual comments (March 19, 1788) here: Luther Martin’s Reply to the Landholder.1  

³  The Federalist Papers were written during 1787-88 to explain the proposed Constitution to The People and to induce them (through their States) to ratify it. For this reason, The Federalist Papers are authoritative on the genuine meaning of the Constitution. And at a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school was passed:

…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)  [emphasis added]

Someone!  Show Professor Guelzo the on-line edition of The Federalist Papers so he can learn the genuine meaning of the Constitution!  Salvage the minds of the young people who the administration of Gettysburg College places in Guelzo’s care.

⁴  Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & Concurrent Jurisdiction Explained.  Guelzo mentions “preemption” [it does sounds "grand, doesn't it?]; but in this paper I  explain the interplay between constitutional federal & Reserved State powers.

⁵  It is impossible to understand The Constitution without acknowledging the Principle set forth in Our Declaration of  Independence that that our Rights are granted to us by The Creator God;  they thus pre-exist & pre-date The Constitution, and are unalienable by man. WE do not look to The Constitution for our Rights!  I explain our Rights here.

⁶  Here are Hamilton’s actual words:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (Federalist No. 33, 5^th para) [emphasis added]

⁷  In his writings on Nullification, our beloved Thomas Jefferson distinguishes between [mere] “abuses of delegated powers” and the assumption of powers “which have not been delegated”:

…in cases of an abuse of the delegated powers, the members of the General [federal] Government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them:.. [boldface added]

I.e., if Congress merely abuses a delegated power [e.g., makes silly bankruptcy laws (Art. I, Sec. 8, cl. 4)], then the proper remedy is to vote the Representatives out of office and replace them with sensible ones who will repeal the silly bankruptcy laws.

But if Congress assumes a power which has not been delegated to it – e.g., control of the Peoples’ medical care – then each State has a natural right to nullify it within their own borders.  It is outside the compact the States made with each other – the States and the People never gave their “creature” (the federal government) power over their medical care!  Without Nullification, the States and the People would be under the absolute & unlimited control of the federal government.

⁸ Remember! We expect the lowest-ranking soldier to refuse to obey an unlawful order even when given by a commissioned officer. See “A Duty to Disobey: The Forgotten Lessons of My Lai“, by military lawyer Robert S. Rivkin. And do not forget the Nuremberg trials – defendants claimed they were “just following orders”.  The Court properly rejected that defense.

Do we ask less of ourselves and our State & federal officials than we do of 18 year-old soldiers when we are confronted with unconstitutional acts of the federal government?  The three branches of the federal government have connived against us – THE PEOPLE.  So smack them down!  Can we live up to our Framers’ expectations as set forth throughout The Federalist Papers?  See also, What Should States Do When the Federal Government Usurps Power? for advice from James Madison.

⁹  Does Professor Guelzo understands the poisonous import of his words?  Or did he uncritically accept, and does he unthinkingly recite, what he has been told?  What he says is the prevailing dogma of our time – most lawyers believe it because it is what they were told in law school. Theirs’ are minds which have never been trained to think, and they are ignorant of the concept of “objective meaning”. I address the problem of inability to think and our moral & intellectual corruption here: How Progressive Education & Bad Philosophy Corrupted The People & Undermined The U.S. Constitution  PH.

April 17, 2011

The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges.

The Oath of Office & Nullification.

By Publius Huldah.

Rush Limbaugh recently ¹ castigated our putative president for announcing that his regime would not enforce the Defense of Marriage Act.  Rush said:

“…He’s ordering his Justice Department not to defend a federal law.  Nobody has said the law is unconstitutional other than Obama and Holder, and they don’t have the power to do that … For a president to ignore a federal law … for him to act as legislature and court …is hugely troubling …”

Newt Gingrich commented to the same effect to Newsmax on Feb. 25, 2011; and added that “it’s a violation of his [Obama's] constitutional oath” and “could lead to a constitutional crisis”.

Not so, Rush & Newt!  Actually, it is a President’s sworn duty to refuse to enforce any unconstitutional “law” made by Congress. And contrary to the misinformation with which we are constantly bombarded, judges are not vested with exclusive authority to declare Acts of Congress unconstitutional.

The Truth is that a President, the States, local governments, and individual citizens, together with the courts, all have the Right & Duty to overrule – to spurn & cast out – unconstitutional laws made by Congress. For it is a fundamental [though long suppressed] Principle of our Founding that an unconstitutional “law” is no “law” at all – it is a “mere usurpation, and deserves to be treated as such”.

Our Framers placed “Oaths of Office” in the Constitution. When honored, these Oaths function as “checks” on the powers of the federal government and protect us from usurpations. Each Branch of the federal government has “the check of the Oath” on the other two branches.

The States, whose officials also take the Oath of Office, have the same check on all three branches of the federal government.

And WE THE PEOPLE, the “original fountain of all legitimate authority” (Federalist No. 22, last para), have the Right to overrule violations of the Constitution by elected & appointed officials.

Ignorance of Our Founding Principles

WE THE PEOPLE forgot our Founding Principles. Conservative lawyers, politicians, judges, “intellectuals”, and radio & TV pundits don’t know them. The lawyers uncritically accepted what they were told in law school, and the non-lawyers accept what other people say. No one learns The Constitution – no one thinks independently – like Dufflepuds, they chant the prevailing dogma. As a result, our Country spirals downward at an ever quickening pace.

But if you read on, you will learn seven of our Founding Principles:

1. Who Really Is The Boss? WE THE PEOPLE?  Or the Federal Government?

WE THE PEOPLE created the federal government when we ordained & established the Constitution for the United States of America. WE created the three branches of the federal government and itemized the powers WE granted to each branch. ²Neither the Legislative, nor the Executive, nor the Judicial Branch may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in the federal government, be they Senators, Representatives, federal judges, Presidents or other officials, are merely our “creatures”.  When they disobey the Constitution, WE are to take action.  In Federalist No. 33 (5th para), Alexander Hamilton says:

“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed [the Constitution], and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [emphasis added]

Did you get that? Read it again.

2. Congress’ Powers are Enumerated

In the Constitution, WE authorized Congress to make laws only on those objects WE listed in the Constitution. Those few objects on which WE authorized Congress to make laws applicable throughout our Country are itemized at Art. I, Sec. 8, clauses 1-16 (and in a few Amendments).  Here is an explanation of Congress’ Enumerated Powers.

3. When is a “Law” Not a Law?

When it’s a usurpation!  I.e., when Congress makes any “law” which the Constitution does not authorize it to make.  Our Framers understood that civil governments seek to expand their powers; but when our federal government does so, its acts are VOID. In Federalist No. 33 (last para), Hamilton says a law made by Congress which is not authorized by the Constitution,

“…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…” [boldface mine]

In Federalist No. 78 (10th para), Hamilton says:

“…every act of a delegated authority, contrary to…the commission under which it is exercised, is void. No legislative act … contrary to the Constitution, can be valid. To deny this, would be to affirm…that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]

Do you see?  If Congress makes a law which is not authorized by the Constitution, then it is no “law” at all.  It is a “mere usurpation” – it is “void” and “not valid“.

4. What is the “Rule of Law”?

Article VI, clause 2, says the Constitution, and the Laws & Treaties authorized by the Constitution, are the “supreme Law of the Land”.  The Rule of Law prevails when the civil authorities obey The Constitution.  Webster’s 1828 Dictionary says for “Constitution”:

“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.”

If any Branch fails to obey the “supreme Law”, then, in order to preserve the Rule of Law, the other Branches, or failing that, the States or THE PEOPLE, must overrule them.

5. What Does the Oath of Office Actually Say?

Article II, Sec. 1, last clause, sets forth the President’s Oath of Office:

“I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.”

Article VI, clause 3, provides that all other representatives, officers & judges (federal and state) are bound to support the Constitution.

6. The Check Provided by the Oath of Office

The Key is this:  One’s Oath is pledged to The CONSTITUTION - the Oath is NOT to go along with Congress, or to obey the Executive Branch, or submit to federal judges.

The President’s “Check” on Congress and Federal Courts:

Say Congress makes a “law” which says Jews must wear a yellow star on their arm; Christians, a white cross; & that it’s a felony if they fail to wear the armbands.  Imagine you are President. You vetoed the bill; but Congress overrode your veto. Are you going to enforce that “law”?

Look at your Oath of Office.  Does your Oath require you to obey Congress ³ unless & until five people on the supreme Court say you don’t have to?  And even if those five side with Congress, will you allow U.S. Attorneys to prosecute Christians & Jews who don’t wear the arm bands?

Or will you look at your Oath of Office which recites that your Sworn Duty is to “preserve, protect and defend the Constitution of the United States”. The Constitution – not whatever law a majority of people in Congress pass & five people on the supreme Court approve. If you are faithful, you will review Art. I, Sec. 8, clauses 1-16, and you will ask, “Where is Congress authorized to make a law which requires Christians & Jews to wear armbands? You will see that The Constitution does not authorize Congress to make the law, and you will see that the supreme Court’s opinion upholding it is unconstitutional. You will denounce the pretended law & judges’ opinion as “mere usurpations”, and you will instruct the Attorney General & U.S. Attorneys NOT to prosecute violations of that pretended “law”. ⁴

Four Checks on Federal Judges:

We were told in law school that the supreme Court is the ultimate authority on the Constitution, and when they [or rather, a majority of five] speak, we must all scurry to obey. Rubbish!

The Oath of Office (Art. VI, last clause) does require judges to strike down “laws” made by Congress which are unconstitutional.  Hamilton recognizes in Federalist No. 78 (9th para, et seq.) that judges have the power to strike down unconstitutional “laws”.

But this is the only “check” law students hear about!  Since they don’t know about The Federalist Papers & (thanks to progressive education) can’t think, they graduate law school believing that the only “check” is that of federal judges to declare laws made by Congress unconstitutional (“judicial review”). They believe that no one has a check on the supreme Court – that their word is final.

Not so! Federal judges are not gods. They are morally & intellectually fallible people who (as our Framers saw) can cause dreadful harm to our Country when they connive with another Branch.

Thus, they are subject to “the check of the Oath” for their usurpations – checks imposed by Congress, the Executive Branch, the States, and THE PEOPLE:

(a) Congress must impeach & remove federal judges who usurp power – they serve during “good Behaviour” only (Art. III, Sec.1).  Hamilton discusses impeachment of usurping judges in Federalist No. 81, 8th para. ⁵ So yes!  Congress may review the propriety of  judges’ opinions!

(b) The President must refuse to go along with unconstitutional opinions. Hamilton saw that federal judges might become “embarked in a conspiracy with the legislature” (Federalist No.16, next to last para).  So the President is bound by Oath to reject unconstitutional “laws” even when approved by the supreme Court.  And Hamilton understood that it might be appropriate for a President to refuse to enforce a federal court opinion.  He says in Federalist No. 78 (6th para):

“…The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary …  has no influence over … the sword or the purse; no direction … of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [caps are Hamilton's, other emphasis mine]

Do you see?

(c) The States must nullify unconstitutional opinions. ⁶ State officers & judges are bound by Oath to support the Constitution (Art. VI, last clause).  So they too are Honor bound to refuse to comply with unconstitutional federal court opinions, as well as unconstitutional federal laws, executive orders, & pretended treaties which affect them & their Citizens.

7. The People Have The Ultimate Power & Responsibility to Enforce The Constitution

For too long, we have shirked our Responsibility to enforce The Constitution – we let the supreme Court be in charge.

Look at what they have done with the power we relinquished to them: They approved Congress’ massive & grotesquely unconstitutional expansions of federal control over our lives [e.g., their "interstate commerce clause" & "general welfare clause" jurisprudence]; they outlawed the Faith of Our Fathers & used the 14th Amendment to bring about a radical redefinition of “Liberty” as freedom from moral restraints; and they connived with Congress in turning the once proud American People into parasites who clamor to live at other peoples’ expense. They usurped Our status as the “pure, original fountain of all legitimate authority”, and claim for themselves the power to “make policy” for our Country!

Our Framers Understood That Judges Could Be Dangerous – But Couldn’t Get Away With It Unless WE Concurred.

Hamilton says “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Because judges may be “embarked in a conspiracy with the legislature”, Hamilton expected the People to be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No.16, next to last para).

“…liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments…” ( Federalist No. 78, 7th para).

James Madison says in Federalist No. 44 (last para before 2.):

“…the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers.” [boldface added]

So! It is up to The People, who are “the natural guardians of the Constitution” (Federalist No.16, next to last para), to take whatever action is necessary when their representatives in the federal government concur with the usurpations of another Branch – and thereby violate their Oaths to preserve The Constitution.

How do we become “enlightened enough” to do this?

Read The Declaration of Independence & The Constitution – read them often. The more you read, the more you will come to see that The Constitution gives effect to the Principles of the Declaration. Outline The Federalist Papers.  Get Mary Webster’s edition in modern English for yourself and the young people in your Family.  Consult Webster’s 1828 Dictionary for definitions. Be careful whom you trust – most conservative lawyers have minds like blank sheets of paper which got imprinted in law school; and the conservative commentators regurgitate what the indoctrinated lawyers tell them!  Study so that you can speak like this wonderful woman who challenged Rep. Pete Stark on obamacare.

Stop wasting your time on bizarre theories about the Uniform Commercial Code (UCC) , “emergency powers”, “corporations”,  gold fringe on flags & admiralty jurisdiction, and other such silly stuff.  It may be tempting to place the blame on others who are in a secret cabal to take away your rights via nefarious schemes such as the UCC, “corporate government” , or adding gold fringes to flags; but the Truth is that you, along with everyone else, haven’t bothered to do the Work to learn our Founding Documents & Principles.

Lose your pride in your own knowingness about The Constitution: What you think you know, just ain’t so; and the misinformation in your head blinds you to Truth. When you just repeat the stuff you hear, you add to the problem.  Millions of Americans heard Rush & Newt and were mislead by the misinformation those two spread.  And for Heaven’s Sake, don’t advocate ratification of Amendments to the Constitution until you fully understand the existing Constitution! [And if you fully understood it, the only amendments you would want are those repealing some of the previous amendments.]

Stop thinking like a slave – we have become a Country of “permission seekers”.  For every issue, we want to file a lawsuit in federal court. Why?  Because we don’t want to take Responsibility for dealing with the issue ourselves. Spend a few hours studying the Declaration & Constitution and you will know the Constitution doesn’t give Congress authority to force you into a government controlled “health care” system. You will know it doesn’t give the Executive Branch authority to control CO² emissions. You will know it doesn’t give the Executive Branch & Congress authority to force us into pernicious UN treaties such as the Declaration on the Rights of the Child & to implement [as they are doing right now] the UN’s Agenda 21 “sustainable development” scheme.  Many federal judges are our enemies – they are the last people you should ask for permission to have constitutional government.  WE need to “man up” and take responsibility.

As Madison advises, defeat elected federal & State officials who have betrayed us; and replace them with faithful servants who will annul the acts of the usurpers.

Learn your State’s recall statutes – recall faithless elected officers. Learn your State’s impeachment procedures – demand impeachment of faithless State judges and officers. Demand impeachment of faithless federal officials and judges. Demand that each house of Congress expel members who usurp power (Art. I, Sec. 5, clause 2).  Expel the loons in the House!

Learn about Nullification by States and restore Jury Nullification in criminal cases. ⁷

Learn about Federalism.  Urge repeal of the 17th Amendment to help restore “federalism”.

Learn from the heroic Rev. Dr. Martin Luther King, who practiced non-violent civil disobedience of  unjust State “laws” which enforced segregation.  Withdraw your concurrence to usurpations.

Endnotes:

¹ Rush’s show of Feb 24, 2011. When Rush speaks on the Constitution, beware!  But when he speaks on other matters, he can be brilliant.  And Gingrich, who is supposed to be an intellectual & an expert, showed he is profoundly ignorant of our Founding Principles.

² Art. I creates the Legislative Branch & enumerates its powers.  Art. II creates the Executive Branch & enumerates its powers.  Art. III creates the Judicial Branch & enumerates its powers.

³ You may object, “But Art. II, Sec. 3 says the President “shall take Care that the Laws be faithfully executed!”  And I would remind you that an unconstitutional “law” is no law at all – it is “a mere usurpation and deserves to be treated as such” – it is “VOID” & “not valid“.

⁴ In Federalist No. 66, 2nd para, and Federalist No. 77, last para,  Hamilton points out that Congress may impeach & remove the President for “encroachments” on the powers of the Legislative Branch.  So if Congress objects to your ignoring their pretended law, they may impeach & remove you.

⁵ Hamilton says in Federalist No. 78 (7th para up from bottom) that judges may not

“…substitute their own pleasure to the constitutional intentions of the legislature … The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would … be the substitution of their pleasure to that of the legislative body...” [caps are Hamilton's]

When federal judges substitute their pleasure for that of Congress [when Congress' acts are constitutional] Congress is honor bound to impeach & remove them for their usurpation. And everyone else is honor bound to spit on the judges’ unconstitutional opinion. Yes! It takes he-men & she-women to enforce The Rule of Law!  Man up, People!

⁶ The supreme Court issues unconstitutional opinions all the time. Look at how they perverted the 14th Amendment and the 1st Amendment!  In these (& other) cases, they substitute their pleasures for the Will of The States and The People.

⁷ Webster’s 1828 Dictionary has the following entry under “jury”:

“…Petty juries, consisting usually of twelve men, attend courts to try matters of fact in civil causes, and to decide both the law and the fact in criminal prosecutions …” [emphasis added]

Would you convict someone for the “crimes” of failing to buy health insurance or failing to wear the armbands?  THAT is the essential purpose of  Jury Nullification in criminal cases. Get your Legislatures to restore it and insist that it be applied in federal criminal trials conducted in your State. PH

March 29, 2011; revised Nov. 16, 2011

How Progressive Education and Bad Philosophy Corrupted The People & Undermined The Constitution of The United States

By Publius Huldah.

Throughout human history, the prevailing belief system changes from time to time & place to place;  most people unthinkingly absorb whatever happens to be the prevailing dogma of their time & place. Here, I will show the radical differences between the philosophy of our Founding Era and the philosophy of today. And when I have done so, you will understand why our Country is declining and what you can do about it.  In a nutshell, the Enlightenment philosophy of our Founding Era, which was based on Reason and the recognition of the existence of Fixed Principles, was taken away from us; and replaced with the subjective philosophies of Pragmatism & Existentialism, both of which reject Reason and deny the existence of  Objective Truth & Fixed Principles. These are now the prevailing dogma of our Time; and unless we promptly repudiate them, we will fall.

Alexander Hamilton, James Madison, & John Jay (authors of The Federalist Papers), and others at the Federal Convention of 1787, embodied the best aspects of The Age of Enlightenment. They were well educated, exquisitely knowledgeable in statecraft & political philosophy, embraced the concepts of Objective Reality & Fixed Principles, knew Logic, and could think. George Washington, a man renowned for his Moral Character, which was based on Judeo-Christian ideals, presided over the Convention.

The Fruit of the Philosophy, Religion, & well-trained Minds of our Framers was a Constitution which ordained and established a Federation of States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce & relations; and domestically, the creation of an uniform commercial system:  Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. ¹

Progressive “Education” & the Conditioning of the American People

But during the 19th Century, Progressives took control of public schools & teachers’ colleges. They then conditioned teachers and children to abandon our Founders’  Enlightenment philosophy of Reason, Fixed Principles, & Judeo-Christian ideals; and to accept a new ideology which replaced Reason with “feelings” and denied the existence of an Objective Reality & Fixed Principles. They thus primed the objects of their conditioning to accept whatever attitudes the Progressives chose to instill in them. And the objects of this conditioning did not – do not – know what was done to them!

Samuel L. Blumenfeld explains the two opposing philosophies of education:

the “progressives”…viewed public education primarily as a tool for social and cultural reform to be achieved through the remaking of human nature; and the traditionalists …viewed education, public or private, primarily as a development of an individual’s intellectual skills in combination with moral instruction based on Judeo-Christian ideals. ["Is Public Education Necessary?", Ch. 12]

Thanks to the traditional education they received, our Framers knew history, political philosophy & statecraft, Logic, Judeo-Christian moral ideals, and could think!

Thanks to progressive “education”, Americans have been so dumbed-down that they can’t read, ² know nothing, and can’t think. After the Progressives ripped moral instruction based on Judeo-Christian ideals out of the public schools, and replaced it with the view that morality is a matter of  subjective personal opinion or group consensus, ³ we became an amoral people who kill babies, reject altogether the concept of personal responsibility, insist on a claimed “right” to live at other peoples’ expense, and believe that the only guide for our conduct is our own likes, dislikes, & “feelings”: “I like it” or “I don’t like it”; “I feel like it” or “I don’t feel like it”. We became so shallow and morally blind that we elect fools & tyrants to high office. Thanks to “self-esteem” classes, we believe that our views & “feelings” on subjects of which we have no knowledge whatsoever are as important as anybody else’s.

With our untrained & empty minds and instilled amorality, we were rendered incapable of  resisting the conditioning of the Progressives.  And this, Folks, has been the purpose of public “education” ever since the Progressives took it over.

2000 years of Western Philosophy on Metaphysics & Epistemology ⁴ in One Paragraph

 

So!  In Western Civilization, we had the Age of Faith (There is an Objective Reality & Truth ⁵ and they are revealed in the Bible & Works of Creation); the Enlightenment (There is an objective Reality & Truth and we discover it by use of Reason); the Age of Romanticism (“Truth” is found in your emotions & feelings); and now, Pragmatism & Existentialism (There is no Objective Reality; “Truth” is a concept which has no meaning; there are no fixed principles, there is only “opinion” and one man’s “opinion” is as good as another’s).

Pragmatism & Existentialism

During the late 19th century, the philosophy of Pragmatism (William James, Charles Saunders Peirce, John Dewey) arose.  It rejected the concept of an Objective Reality with its Timeless Truths.  Instead of concerning oneself with the question of whether something is “True”, the pragmatist asks, “What difference will it make in my life whether I believe it or don’t believe it?”  So one looks to the “utility” of believing it or not believing it. If it has a good result for me, it is “true”.  If it has a bad result for me, it is not “true”. What is “true” for me may not be “true” for you, so an idea can be “true” for some and not “true” for others.  Furthermore, what is “true” for me today may not be “true” for me tomorrow, so “truth” evolves.

Do you see?  They tossed the concept of Objective Truth – Objective Reality – Fixed Principles & Standards – out the window.

Pragmatism morphed into Existentialism (Jean-Paul Sartre). Existentialism rejects an objective basis for life in favor of a subjective basis: ⁶ Humans are merely biological organisms living meaningless lives, making “choices” on the basis of no criteria whatsoever other than their own likes or dislikes.  Since there is no basis for any external Principles or Standards to which we must conform, people are free to do whatever they want.

Again, it was the Colleges of Education and the public schools which were the vehicles for dumbing-down the American People and conditioning them to reject the Philosophy of our Founders, and to accept the pragmatist & existentialist mind-set.

A friend recalls an incident which happened around 1960 in English class in an American public high school.  The students read a story.  The teacher asked each student to say what the story meant to him. Whatever a student said was praised by the teacher. But my friend said, “It doesn’t matter what it means to me.  What matters is what the author says.”  The teacher was most displeased with that remark.

Do you see?  Under the pretext of teaching literature, the teacher indoctrinated her students into rejecting the concept of  Objective Reality & Fixed Principles, and accepting a subjective world-view devoid of objective meaning.  The teacher most likely had no idea what she was doing – she was just following her teacher’s manual.  She was thus one of the millions of useful idiots who graduate from our Colleges of Education and set about assisting in the destruction of  the minds & morals of  the American People. ⁷

Do you not remember hearing over & over in your public schools,  “There is no black or white, there is only gray.”  “What’s true for me may not be true for you”.  “If it works, it’s right.”  “What does it mean to you?”  And when one is facing a moral decision, one is asked, “How do you feel about it?”  One’s “feelings” are set up as the criterion for making moral decisions!  There is no appeal to objective standards of Right & Wrong.  That was ripped out of the public schools by the Progressives.  And we are mystified by the high crime rates among our children? ⁸

Most Americans are now existentialists, even though they never heard of John Paul Sartre. We see our own “likes”, “dislikes”, & “feelings” as the only standard.  We just want to “feel good”.  That our personal likes & dislikes are irrelevant when they conflict with objective Standards of Good & Bad, Right & Wrong, is unthinkable.  I’ll illustrate:  It is painful, but we have no time left to pussy-foot:

Standards of Conduct:  What’s Right By Objective Standards?  Or, What do I like?

 

Talk to an obese person about what he eats:  He will most likely say something like, “I’ll eat what I like.”  He thus follows a subjective standard: his likes & his dislikes. Because he is an existentialist (though doesn’t know it), he rejects the idea that there is an objective standard by which one can decide what to eat and what to avoid:  That of health – Is the food healthy? Or unhealthy?  And if you tell him of this objective standard, he’ll say, “I don’t care – I’ll eat what I like.” The essence of the existentialist mind-set is that the existentialist sees no reason why he should set anything above his own “feelings”, likes, or dislikes.

There was a stay-at-home Mom. When her young children were hungry, she tossed them a box of crackers or cookies, or took them to a fast food joint.. Why?  Because she didn’t like to cook.  That she had a DUTY to provide her children with healthy food, never entered her mind.  She didn’t “like” cooking, she “felt like” going to the mall instead, and that was the end of the matter.

Couch potatoes don’t exercise because they “hate” exercise.  They reject the objective fact of Reality  that exercise is necessary to be healthy.

Pragmatism, Existentialism & Federal Judges

So! With the rise of Pragmatism & its conception of evolving and subjective “truth”, American lawyers abandoned the concept of Law as a body of fixed principles (set forth in The Declaration, The Constitution, Blackstone’s Commentaries, Natural Law &/or the Bible), and embraced the concept of an “evolving” law and an “evolving” Constitution which means whatever they – the judges – say it means! Remember!  To the pragmatist, “truth” evolves. ⁹

So THIS is the philosophical basis for judges on the supreme Court tossing out The Federalist Papers as the objective standard of the meaning of The Constitution; and substituting their own opinions. When they were in school, they were conditioned to reject the concept of Objective & Fixed Standards, and to accept Pragmatism & Existentialism; and I bet you few (if any) of them ever thought it through.  They did not resist the conditioning – they just accepted what their Manipulators instilled in them.

We teeter on the brink of disaster. YOU must rise to the occasion.  Our Country & our Posterity depend on YOUR repudiating the destructive philosophies your conditioners foisted on you; and reclaiming the rational Enlightenment philosophy & Judeo-Christian morality of our Framers. We can not save our children unless we close the public schools. ¹⁰ Education must be privatized, and we better do it now. PH

Postscript added July 22, 2011:  Melanie Phillips shows how the abandonment of the concept of Objective Principles & Standards and the embracing of moral relativism & multiculturalism is leading to the islamization of  England:   Watch it!

 

Endnotes:

¹ Our Constitution follows the Biblical model: a civil government with defined powers which is subject to – under – the Law.  Civil government is not the source of Law! The law comes from a higher authority:  God is the source of Law in the Bible; The Declaration of Independence & The Constitution are the Source of Law in our Country.  Acts of the three branches of the federal government are lawful or unlawful depending on whether they are consistent with the Declaration & authorized by The Constitution.  These are the standard of what is “lawful” – NOT the fiat of the brain-washed judges who sit on our courts.

Lex, Rex by Rev. Samuel Rutherford (1644), is a masterwork of which modern American pastors are ignorant.  Rev. Rutherford proves that civil authorities have legitimacy ONLY to the extent they obey The Law. We see all around us the results of our pastors’ ignorance of these Biblical teachings.

² Two/thirds of Wisconsin 8th graders can’t read proficiently! Yet their teachers are screaming for more benefits to be paid for by the taxpayers, while lying about being sick.  With the public schools, we have financed our own destruction.  And most Americans who can read,  are unable to read The Federalist Papers. Yet The Federalist is essential for a correct understanding of the objective (genuine) meaning of our Constitution & they were published in Newspapers in 1787-88!

³ “Values clarification” is the version of “moral guidance” foisted in the public schools on our children since the 1960′s.  Public school teachers are telling children that they are “…free to choose ethical and moral behavior that resonates with them.”  They thus “liberate” children from “authoritarian” teachings on morality.

⁴ “Metaphysics” deals with the nature of Reality; “Epistemology”, with theories of Knowledge.  The Ayn Rand Institute has an excellent lexicon for philosophical terms. Rand was a non-theist; PH is a Christian theist.  Hence, there are some differences.  But both see “Natural Law” (Physics, Mathematics, Logic, Morality, Politics, etc.) as woven into the Fabric of Reality.  Both see the Universe as governed by LAW; and that the duty of man is to learn & to obey these Laws.

Thus, the Great Divide is between those who accept the concept of Divine or “Natural Law”; and those, such as Progressives, Libertarians, Pragmatists, & Existentialists, who reject it. They deny the existence of any standard other than their own “feelings”, likes & dislikes.

⁵ “objective reality” means this: “Reality exists as an objective absolute—facts are facts, independent of man’s feelings, wishes, hopes or fears.”  In other words, things are the way they are regardless of what you like, don’t like, agree with or don’t agree with.

⁶ “subjectivism” is “…the belief that reality is not a firm absolute, but a fluid, plastic, indeterminate realm which can be altered, in whole or in part, by the consciousness of the perceiver—i.e., by his feelings, wishes or whims.  It is the doctrine which holds that man—an entity of a specific nature, dealing with a universe of a specific nature—can, somehow, live, act and achieve his goals apart from and/or in contradiction to the facts of reality, i.e., apart from and/or in contradiction to his own nature and the nature of the universe…”

⁷ In “The Abolition of Man“, C.S. Lewis illustrates how the concept of “objective value” was ripped out of the hearts of British school children by their teachers.  He also discusses the “Natural Law” and how it has been universally recognized. His book is only 113 pages, double-spaced, & one of the most important books ever written. Read it. Outline it. Tell all in your spheres of influence.

⁸ But at least we can take comfort in the knowledge that our children are not being taught in public schools such things as, “thou shalt not kill”, “thou shalt not steal”, “thou shalt not bear false witness”, “thou shalt not covet”, and other such “authoritarian” & offensive rubbish.

⁹ In “The Second American Revolution“, attorney John W. Whitehead (Rutherford Institute) writes of this.  This is a valuable book which shows how bad philosophy corrupted our judges.

 

¹⁰ Glen Beck and others are showing that under the pretext of teaching reading, progressive “educators” are now telling our children the Lie that our Constitution institutes socialism! PH

March 6, 2011

Balanced Budget Amendment: Why it is The WORST Idea Ever

By Publius Huldah.

Senator Jim De Mint (who should know better) is supporting The Balanced Budget Amendment.  Proponents of this “fix” trumpet these supposed benefits:   That the amendment would:

• Require Congress to balance the federal budget each year
• Prevent Congress from spending more than 20 percent of GDP
• Require a 2/3 super-majority vote to raise taxes

But the actual result of the proposed amendment would be to finish off (with little hope of resuscitation) our existing Constitution of enumerated powers; and create a new system where Congress’ unconstitutional legislation & spending is legitimized – as long as it is no more than 20% of the GDP.

And since Congress, the executive branch and the judicial branch already ignore the limitations the existing Constitution places on their powers (they have no lawful authority outside of their enumerated powers);  it would be no time at all before they ignore the 20% limit on spending.  This “emergency” or that “emergency” would arise; and soon the 20% limit would be ignored as well.

Our Constitution Created a Limited Federal Government with Enumerated Powers.

With The Constitution, WE THE PEOPLE ordained and established a Federation of States which united for the LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce & relations; and domestically, the establishment of an uniform commercial system:  Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery.  That’s about it! Read Art. I, Sec. 8, clauses 1-16, U.S. Constitution, and you will see for yourself how few are the powers delegated to Congress.

The Federalist Papers confirm that ours is a Constitution of enumerated powers only.  In Federalist No. 45 (9th para), James Madison, Father of the Constitution, says:

“The powers delegated by the proposed Constitution to the federalgovernment are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…”   [emphasis mine]

Do you see?  The objects on which Congress is authorized by the Constitution to make laws and spend money are few and enumerated. ¹

Congress Violates the Existing Constitution by Legislating & Spending on Unconstitutional Objects.

The Constitution does not permit Congress to create and appropriate funds for the Departments of Agriculture, Education, Energy, Health and Human Services, Housing and Urban Development, Labor, Transportation; etc.

The Constitution does not permit Congress to appropriate funds for Independent Agencies and Government Corporations such as AMTRAK, the Advisory Council on Historic Preservation, African Development Foundation, Commodity Futures Trading Commission, Environmental Protection Agency, Pension Benefit Guaranty Corporation, Railroad Retirement Board, Small Business Administration, Social Security Administration, Tennessee Valley Administration, etc.

The Constitution does not permit Congress to appropriate funds for the many Boards, Commissions, and Committees and various Quasi-Official Agencies.

The Constitution does not permit Congress to appropriate funds for pork barrel spending or for private concerns.

The Constitution does not permit Congress to appropriate funds for massive “entitlement” programs such as social security, Medicare and Medicaid.

The Constitution does not permit Congress to appropriate funds to bail out private businesses.

All these Departments, Agencies, Government corporations, Boards, Commissions, Committees, Bureaus, “entitlement programs”, Pork, and bailouts are unconstitutional as outside Congress’ Enumerated Powers.

It is this lawless & unconstitutional spending which gave us a national debt of over $14 Trillion – a debt which increases at the rate of over $4 Billion a day!  It is also this lawless & unconstitutional spending which has resulted in the federal government’s increasing interference in the most intimate aspects of our lives. With obamacare, it now claims the power to decide whether we receive, or are denied, medical care:  Who lives and who dies.

We can not starve The Beast if we give it a Constitutional Claim to 20% of GNP!

Think! Oh, you proponents of this truly terrible idea! According to this chart, the GNP for 2009 was $14.119 Trillion.  (And was it not the 16th Amendment [another "fix"] which made it possible for The Beast to grow as big as it has?)

Giving The Beast a constitutional claim to “only” 20% of the GNP will not reign it in.  We need to man up and face the real problem:  Congress legislates and spends money on objects for which it has no constitutional authority.

The Answer is to Strip the Beast of its Usurped Powers!

We must systematically dismantle the unconstitutional federal departments and agencies and programs.  Start by eliminating the Department of Education. [We are becoming a People notorious throughout the World for our Ignorance; so the sooner they are gone, the better.]  More departments can be eliminated outright; the functions of others transferred to the States, or privatized (private charities or enterprises).

The People, our elected officials, and appointed judges & officials are ignorant of The Constitution. Yet their hubris is so great [thanks to "self-esteem"- something which is taught in the government schools], ² they run around proposing amendments to a document they don’t understand (and have most likely never read).

Our Framers were far better educated than we are today.  And unlike us, they knew how to think. We, today, can not improve on The Constitution which they, led by intellectual luminaries such as James Madison, took months, working full time, to draft.  In fact, our fiscal problems, and the increasing and systematic curtailments of our Freedoms, stem directly from our ignoring The Constitution they gave us.

As a People, we have developed a cowardly mindset where we refuse to address the causes of our problems.  We just want to treat the symptoms, blame-shift, and avoid the consequences.  If we are overweight, we don’t want to address our eating & exercise habits.  Oh no!  We want a “fix” – a pill; we blame our thyroid, our genes, or the medicine we are taking; and we want other people to pay the medical expenses resulting from our own destructive habits.  We apply this same destructive mindset to the Constitution.  Instead of manning up and facing the cause of our problems – which is that we want to live at other peoples’ expense, and so elect politicians who promise us Plunder – we want a “fix” which permits us to blame-shift:  It’s The Constitution’s fault!  So we go around proposing Amendments, the ramifications of which we do not understand.

We all need to Look in the Mirror.  Return to PERSONAL RESPONSIBILITY.  Restore our Constitution.  And Starve the Beast.

Endnotes

¹ The Federalist Papers show again and again that ours is a Constitution of enumerated powers only.  For more citations and quotes, see Why States Must Nullify Unconstitutional Acts of Congress.

² There are, of course, some great teachers in the government & labor union controlled public schools. But they are rare jewels. PH

February 23, 2011

POSTSCRIPT (Feb.  27, 2011)

Someone asked me the following excellent question:

“Why exactly would passing a balanced budget amendment lead to more unconstitutional spending?  If it is a duly-ratified amendment, then how would it authorize other spending that violates the other provisions of the Constitution?”

My answer:

My conclusion is based on 3 things:  A legal rule of construction, my knowledge of how lawyers & judges “think”, & my knowledge of human nature.

1. It boils down to this: Say you have a 16 year old daughter & tell her to abstain from sex until she is married.  Next week, you give her a bag of condoms & tell her you will give her such a bag every month.

2.  The “Rule of Construction” is this: When there are contradictory provisions, “…the last in order of time shall be preferred to the first.  But this is a mere rule of construction, not derived from any positive law, but from the nature and reason of the thing…”.  (Hamilton, Federalist No. 78, 12th para).

3.  For 41 years, legal “minds” have been the “minds” I know best.  The federal courts, Congress, & Executive Branch already ignore the essence of our Constitution, which is that it is one of enumerated powers only, and the list of objects on which Congress may lawfully appropriate funds is short.  The Balanced Budget Amendment does not address that unconstitutional spending. All it purports to do is limit that unconstitutional spending to “only” 20% of the GDP. But if Congress restricted its spending to its enumerated objects, it could not possibly spend such a large sum as 20% of the GDP!

If Congress made laws only on its enumerated powers, there would be so few federal statutes that most federal judges would have absolutely nothing to do – Congress could cut 99% of them.

The federal government established by our Constitution is very small and has power over only those 21 or so objects delegated to them.  In one of his 6 Papers on taxation, Hamilton says that the only significant expense of the federal government would be in times of War.

By not addressing Congress’ unconstitutional spending, & by approving the spending of 20% of the GDP – a sum Congress could not possibly consume if it were restricted to its constitutional powers - the balanced budget amendment impliedly repeals the enumerated powers aspect of our Constitution.  The rule of Construction mentioned by Hamilton would be applied, and our Constitution would no longer be one of enumerated powers – just one with a spending cap (which, of course, as  Mike Foil points out, can be exceeded in times of war, emergencies, when a certain number in Congress approve exceeding the 20%, etc.)

Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson.

Why Nullification is Legal.

By Publius Huldah.

During August 2010, the People of The State of Missouri approved Proposition C and nullified key parts of “obamacare”.  As a matter of constitutional principle, may the People of the States lawfully do this?  Or must they submit to every law made by Congress whether it is constitutional or not?  Are federal judges the final authority?

I will prove that the States have the Right and the Duty to nullify unconstitutional acts of  Congress.  The only real question is whether Americans have the Will to reclaim our Constitutional Republic & the Rule of Law, or whether they will submit to the rulership of men who “don’t care” what the Constitution says, and who see obamacare as a way “to control the people”.

Congress’ Powers are Enumerated

1. The U.S. Constitution, which created the federal government, permits Congress to make laws only on those few objects which are listed in the Constitution. The objects on which Congress has authority to make laws applicable throughout our Country are itemized at Art. I, Sec. 8, clauses 1-16 (and in a few of the Amendments).

Since the Federalist Papers are the most authoritative commentary on the true meaning of the Constitution, ¹ let us see what those Papers say about the extent of Congress’ legislative powers.  In Federalist   No. 83 (7th para), Alexander Hamilton says:

The plan of the convention declares that the power of Congress …shall extend to certain enumerated cases. This specification of particulars evidently excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended. [boldface mine]

In Federalist No. 39 (3rd para from end), James Madison says:

…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects…[emphasis added]

Our Framers were emphatic that ours is a Constitution of enumerated powers only.  In Federalist No. 45 (9th para), Madison says:

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…[emphasis mine] ³

Do you see?  If the Constitution doesn’t delegate a power to Congress by listing it in the Constitution, Congress doesn’t have that power.  It is reserved by the States or the People.

Congress Usurps Power when it makes Laws outside its Enumerated Powers – and such pretended Laws are VOID & NOT VALID.

2. Our Framers understood that civil governments seek to expand power at the expense of the People. And when they do so, their acts are VOID and INVALID!  Thus, in Federalist No. 33 (next to last para), Hamilton says:

…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [caps are Hamilton's; other emphasis mine]

In the last paragraph of  No. 33,  Hamilton says a law made by Congress which is not authorized by the Constitution,

…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution… [emphasis mine]

In Federalist No. 78 (10th para),  Hamilton says:

…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. [emphasis mine]

Nothing in Art. I, Sec. 8, or elsewhere in the Constitution, authorizes Congress to pass obamacare!  “Medical care” is not an enumerated power.  Obamacare is unconstitutional as outside the scope of the legislative powers granted to Congress. ⁴

Furthermore, the Tenth Amendment forbids Congress to pass obamacare: When a power is not delegated to the federal government by the Constitution, that power is reserved to the States or to the People.  Only the States or the People have power over medical care!

So!  Congress passed obamacare without any constitutional authority to do so, and in violation of the Tenth Amendment.  Hence, as Hamilton shows us, obamacare is “void” and not “valid”. It is an act “of usurpation, and will deserve to be treated as such.”

Hamilton, Madison & Thomas Jefferson show us that Nullification is the Answer.

3. Hamilton shows in Federalist No. 28 (7th para) that if the federal government invades the rights of the People, they can use the State government as the instrument of redress:

…in a confederacy   the people … may be said to be … the masters of their own fate. Power being almost always the rival of power, the general [federal] government will … stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government.  The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…. [emphasis added]

So!  When the People of the State of Missouri approved Proposition C nullifying obamacare, they properly made use of their State government as “the instrument of redress” against the usurpations of Congress & the Executive Branch.

And since State officials and many Citizens have taken the Oath to support the U.S. Constitution (Art. VI, clause 2), it is their SWORN DUTY to nullify – to refuse to obey – unconstitutional and pretended federal “laws”, such as obamacare.

Nullification by States of unconstitutional federal laws is not new.  Our beloved Thomas Jefferson (Author of the Declaration of Independence) & James Madison (Father of the U.S. Constitution) show us precisely what States are honor bound to do when Congress makes an unconstitutional law. During 1798, in response to Congress’ passage of the Alien and Sedition Acts, the Kentucky and Virginia Legislatures passed Resolutions declaring those Acts unconstitutional as outside the enumerated powers granted to Congress, and as in violation of the Tenth Amendment.  In these Resolutions, Kentucky and Virginia resolved not to abide by the federal acts.  Jefferson wrote The Kentucky Resolutions, and Madison wrote The Virginia Resolution. ⁵

The Kentucky & Virginia Resolutions are masterpieces of constitutional analysis. Study them!  States may use them as models for their own Resolutions nullifying the myriad of unconstitutional “laws” which have spewed forth from Congress in recent decades.

The Framers did NOT say States should file Lawsuits and let Federal Judges decide!

4. Think: Why would the States, which formed a Federation for the limited purposes enumerated in Art. I, Sec. 8; ask one branch of the federal government (judiciary) to opine on whether a “law” approved by the two other branches (legislative & executive), exceeds the enumerated powers of Congress and encroaches on the reserved powers of the States and the People (10th Amendment)?  All three branches of the federal government have been unified against The Constitution, the States, and the People for a very long time!  Why would States put themselves in the position of supplicants to a Court which has already shown itself to be contemptuous of the Constitution, and of the States’ and The Peoples’ reserved powers?

And further:  Can we not see for ourselves that obamacare is outside the scope of the Legislative Powers granted to Congress in the Constitution, and that it violates the Tenth Amendment?  Our Framers certainly did not advocate running to federal judges to let them decide such issues!  No, our Framers were men who had guts & backbone and  understood the Constitution! So they nullified unconstitutional acts of Congress. ⁶

Will the American People pass the Test?

5. Will the States and the People surrender to the likes of former DNC Chairman Howard Dean who “doesn’t care” if the stuff passed by Congress is unconstitutional? To Democrat Congressman John Dingle who sees obamacare as a means “to control the people”?  Or will The People and the States man up and defend our Constitution?

We have instructions from the Author of the Declaration of Independence, the Father of the Constitution, and the Author of most of the Federalist Papers. They explain what our Constitution really means, and tell us what we need to do when the federal government usurps powers. Listen to them! They are the highest Authority on the true meaning of our Constitution.

And do not be swept away by rage and lust for revenge. Do not become the murderous, unthinking red-capped mob of the French Revolution.

Let us pray that our eyes be opened, that we listen to the words of wisdom from our Framers, that our spines be stiffened, and that we work for a peaceful political resolution of the dreadful problems facing us. PH

Endnotes:

¹ At a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school, was passed:

…on the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning…. (page 83)  [emphasis added]

² See also Federalist No. 14 (8th para) “…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…”

Federalist No. 27 (last para) “…It merits particular attention in this place, that the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [caps in original]

³ Medicare, Medicaid, social security, etc., are also unconstitutional as outside the scope of the legislative powers granted to Congress. And the programs can’t work!  As more & more people seek to live at other peoples’ expense, the system eventually collapses. That collapse is upon us.

⁴ Jefferson calls it “nullification”; Madison calls it “interposition”. In “interposition”, the State “interposes” – steps in between – an usurping federal government and The People. (Webster’s 1828 Dictionary.)  The result is really the same.

⁵ Furthermore, the supreme Court is NOT the ultimate authority on the meaning of the Constitution!  Hamilton says federal judges may be impeached for usurpations (Federalist No. 81, 8th para); the People are “the natural guardians of the Constitution” as against federal judges “embarked in a conspiracy with the legislature”; and the People are to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”(Federalist No.16, next to last para).

The federal courts have refused to enforce the Constitution. Congress has failed to impeach & remove usurping federal judges – it has failed to be the “check” on the federal courts.  Therefore, WE must enforce the Constitution by means of nullification.  WE must be the final “check” on the courts.  Study & Learn so that you are qualified to do this. PH

January 24, 2011

Judicial Abuse of the Fourteenth Amendment: Abortion, Sexual Orientation & Gay Marriage

By Publius Huldah

In the January 2011 edition of the California Lawyer, Supreme Court Justice Antonin Scalia correctly says the 14^th Amendment to the U.S. Constitution does not apply to sex discrimination or sexual orientation cases. ¹

Activist federal judges, on the other hand, see the 14^th Amendment as a blank check to legalize whatever conduct they happen to approve of, such as abortion, homosexuality, & gay marriage.

But these activist judges are destroying federalism by bringing about a massive transfer of power from The People and the States to their own black-robed selves.

What Are the Enumerated Powers of the Federal Courts?

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III, Sec. 2, cl. 1 enumerates the cases which federal courts are permitted to hear. They may hear only cases:

a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [“federal question” jurisdiction];

b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of parties” jurisdiction];

c) Between several States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;² or between a State (or its Citizens) & foreign States, Citizens or Subjects ³ [“diversity” jurisdiction].

These are the ONLY cases federal courts have permission to hear!  Alexander Hamilton says in Federalist No. 83 (8^th para):

…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added] ⁴

In Federalist No. 80, Hamilton comments on each of these enumerated objects of federal judicial authority.  But here, we will consider only cases “arising under the Constitution”, which, in the words of Hamilton [which I ask you to note most carefully],

…concern the execution of the provisions expressly contained in the articles of Union  (2^nd para)  [emphasis added]

Are Provisions About Abortion, Homosexuality, or Marriage “Expressly Contained” in the U.S. Constitution?

2.  Let us consider State Laws which made abortion or homosexual contacts to be crimes.  Let us also consider the recent case, Perry v. Schwarzenegger, where federal District Court Judge Vaughn Walker ruled that Proposition 8, an Amendment approved by the People of California to their State Constitution, violates the “due process” and “equal protection” clauses of the 14^th Amendment.  Proposition 8 says, “Only marriage between a man and a woman is valid or recognized in California”.

Are State Laws addressing abortion and homosexual contact proper objects of the judicial power of the federal courts?  Are amendments to State Constitutions defining “marriage” a proper object of the judicial power of the federal courts?

Above, I asked you to note most carefully Hamilton’s statement in Federalist No. 80 (2^nd para) that the judicial authority of federal courts extends to cases which “…concern the execution of the provisions expressly contained in the articles of Union”.

Is anything about abortion, homosexual contact, or marriage “expressly contained” in the U.S. Constitution?  No! Those words and concepts do not appear at all in the U.S. Constitution.

In the 3^rd para of Federalist No. 80,  Hamilton gives examples of cases “which concern the execution of the provisions expressly contained in the articles of Union”:  If a State violates the provisions of Art. I, Sec. 10 which prohibit States from imposing duties on imported articles, or from issuing paper money, the federal courts have jurisdiction to overrule such infractions as are “in manifest contravention of the articles of Union.”

Does Art. I, Sec.10 Prohibit STATES from Making Laws about Abortion, Homosexuality & Marriage?

3. Article I, Sec.10 enumerates the acts prohibited to the States.  Does anything in Art. I, Sec.10 prohibit States from criminalizing abortion or homosexual contact, or restricting marriage to one man and one woman?  No! No! and No! Consider also Hamilton’s words in Federalist No. 32 (last para):

… the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor … is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. The tenth section of the first article consists altogether of such provisions. This circumstance is a clear indication of the sense of the convention, and furnishes a rule of interpretation out of the body of the act, which justifies the position I have advanced and refutes every hypothesis to the contrary. [emphasis added]

So!  Since the U.S. Constitution contains no grant of power over abortion, homosexuality, or marriage to the federal government; and since Art. I, Sec. 10 does not prohibit the exercise of authority over those objects to the States, authority over them remains with the STATES or the People!  [See also the 10^th Amendment to the same effect.]

The Original Intent of the 14^th Amendment.

4.  Now, let us look at the 14^th Amendment, which activist federal judges have seized upon to circumvent the FACT that the U.S. Constitution shows that jurisdiction over abortion, homosexual contact, and marriage is reserved by the States or the People.

Section 1 of the 14^th Amendment (ratified 1868) says:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

What does this mean?  Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment, proves by means of  thousands of quotes from the Congressional Debates, that the purpose of the 14^th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.

a) In Ch. 11 of his book, Prof. Berger shows the true meaning of the “due process” clause of the 14^th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…

“Due process of law” is a term with a “precise technical import” going back to the Magna Charta.  It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of confinement instead of in confinement; & “property” meant the person’s possessions.

Professor Berger points out [and I ask you to note it most carefully] that “due process of law” refers only to trials - to judicial proceedings in courts of justice.  It most manifestly does NOT involve judicial power to override Acts of a Legislature!

b) In Ch.10,  Prof. Berger shows the true meaning of the “equal protection” clause of the 14^th Amendment:

…nor [shall any State] deny to any person within its jurisdiction the equal protection of the laws.

Professor Berger proves that this equal protection was limited to the rights enumerated in The Civil Rights Act of 1866.  Section 1 of that Act says:

Be it enacted by the Senate and House of Representatives of the United States of America … That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding. [emphasis added]

This 1866 Act secured to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property. “Political rights” were excluded [Remember, the 14^th Amendment did not give freed slaves the right to vote]. But respecting the rights listed in the Act, States were now required to treat blacks the same as whites. THAT is what the “equal protection” clause in the 14^th Amendment means.

How Federal Judges have Perverted the 14^th Amendment.

5. Activist federal judges have committed grievous offenses against the U.S. Constitution with their perversions of the 14^th Amendment:

a) They have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” from the 14th Amendment so that they can then pretend that the cases “arise under the Constitution”, thereby claiming “federal question” jurisdiction!

Thus, in Roe v. Wade (1973), seven judges on the supreme Court said a

right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)

makes unconstitutional a State Law making abortion a criminal offense!  Those seven judges just made up a “constitutional privacy right” which they said was in the 14^th Amendment and which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003), six judges on the supreme Court said a Texas Law criminalizing homosexual contact was unconstitutional because it violated practitioners’

…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).

Those six judges just made up a “constitutional liberty right” to have homosexual contact!

In Perry v. Schwarzenegger, Judge Walker asserted that “Gender no longer forms an essential part of marriage” (Opinion p.113); and determined that the “due process” clause of the 14th Amendment contains a “fundamental right” to marry persons of the same sex (p.114, etc)!

He just made up a 14th Amendment “due process right” to marry persons of the same sex!

But abortion, homosexual contact, & marriage are not provisions expressly contained in the U.S. Constitution. So the federal courts have no “federal question” [or "status of the parties" or "diversity"] jurisdiction to hear these cases!

b) They have evaded the constitutional limits on their powers by redefining ⁵ the “due process” clause of the 14^th Amendment from its original meaning of ensuring that freed slaves got fair trials before they could be deprived of life, liberty or property, to seizing power to nullify State Laws they don’t like, and Amendments to State Constitutions they don’t like!

Thus, the supreme Court in Roe v. Wade and Lawrence v. Texas used the “due process” clause to seize power to overturn State Laws criminalizing abortion and homosexual contact; and Judge Walker used the “due process” clause to overturn the Will of the People of the State of California restricting marriage to one man and one woman.

Again, the “due process” clause refers only to judicial proceedings:  That freed slaves couldn’t be lynched, deprived of their freedom, or have their property taken away except pursuant to the judgment of their peers after a fair trial.

“Due process” never involved judicial power to override Acts of  the Legislature of a Sovereign State or Amendments to State Constitutions. The sole purpose of the “due process” clause was to ensure that freed slaves got FAIR TRIALS!

c) They have evaded the constitutional limits on their powers by redefining the “equal protection” clause of the 14^th Amendment from its original meaning of requiring States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property; to prohibiting the States from making any “distinctions” or “classifications” in their State Statutes or Constitutions the federal judges don’t like!

Thus, in Perry v. Schwarzenegger, Judge Walker asserted that Proposition 8 violates the “equal protection” clause of the 14th Amendment because it “disadvantages gays and lesbians without any rational justification” (Opinion p. 135).

6.  So!  Activist federal judges have been using the “due process” clause of the 14^th Amendment to override acts of State Legislatures which outlaw conduct federal judges want to legalize!  They simply make up a “constitutional right” to do those things.  Under their view, there is no limit to their powers! State Legislatures criminalize child rape, but 5 judges on the supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty and privacy right” in the 14^th Amendment to have sex with children!  If these “liberty and privacy rights” mean that women can abort babies, and  homosexual contact is lawful; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty and privacy rights” to commit any crime?  What’s the limit?  There IS no limit! Justice Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas, said:

…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)

Kennedy just tossed Art. III, Sec. 2 out the door!  He and his ideological allies recognize no limits on their judicial power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a Law made by a State Legislature prohibiting that act bites the dust. And since supreme Court judges claim the right to “set policy” for all of these United States (and we have let them do it),  State laws throughout the land prohibiting that act also bite the dust.  And that is how we got a handful of  supreme Court judges setting “policy” for everyone in the country.

7. Abortion, homosexual contact, marriage, prostitution, child sex, drugs, etc. are issues reserved to the States or The People. The federal government is not granted power in the Constitution over these objects, and they are not prohibited by Art. I, Sec. 10, to the States.

The Supreme Court’s Radical Redefinition of “Liberty”

8.  The quote from Justice Kennedy shows that federal judges have redefined “Liberty”: They see “liberty” as freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government – to the contrary, they are determined to force their radical conception of “freedom” down our throats.

But Professor Berger proves that the framers of the 14^th Amendment did not understand “Liberty” as freedom from moral restraints. He proves that the purpose of the “due process” clause of the 14^th Amendment was to protect freed slaves from being lynched, confined, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial; and the purpose of the “equal protection” clause was to require States to secure to blacks the same right to contract, to hold property, and to sue, as whites enjoyed, and the equal benefit of all laws for security of person and property.

9.  Do you see how federal judges have usurped powers never granted to them and how they are destroying our Constitution?  If we do not insist that federal judges adhere to the “original intent” of the U.S. Constitution (and this original intent is readily ascertainable, Justice Scalia’s comment to the contrary notwithstanding), then the Rule of Law can not be reborn, and we will fall.

The Remedy for Judicial Lawlessness

10. Are there remedies for this judicial lawlessness?  YES! Congress must use its Impeachment Power to remove the usurping judges.  They serve during “good Behaviour” only (Art. III, Sec. 1) and do not have “lifetime appointments”.  Alexander Hamilton addressed judicial usurpations and the judiciary’s “total incapacity to support its usurpations by force” in Federalist No. 81, 8^th para:

…the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department.  This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations…

Now you know that federal judges can be impeached, convicted & removed from the bench for usurping power. The Rule of Law does not require us to go along with all court decisions.  Rather, if  the decision is an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

Our Rights do NOT Come from the Constitution!

11. Finally, a word about our Rights:  The Constitution is about the Powers which We the People delegated to the 3 branches of the federal government. It is NOT about our rights, which come from God, are unalienable, and predate & pre-exist the Constitution! We created the Constitution and the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define our Rights?

Endnotes:

¹ State legislatures may make laws re abortion, homosexuality, marriage, etc. as permitted by their State Constitutions.  But as these are not among the enumerated legislative powers of Congress, Congress is not permitted to make laws on these subjects.  Neither are federal judges.

² Hamilton says this is the only instance where the Constitution contemplates the federal courts hearing cases between Citizens of the same State. (Federalist No. 80, 3^rd para from end).

³ The 11^th Amendment (ratified 1795) withdrew from federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.

⁴ What a mind!  All those Hamilton haters who parrot the lies about how Hamilton was a “statist”, etc, demonstrate a profound ignorance of The Federalist Papers & The U.S. Constitution.

⁵ When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V.  Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”. PH