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Understanding the Constitution

“CLIMATE CHANGE” TREATY: The Supreme Law Of The Land? Or Lawless Usurpation?

By Publius Huldah.

If Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December 2009; and if the U.S. Senate ratifies it, will it become part of the “supreme Law of the Land”?

We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme Law of the Land”.  But is that true?  Not necessarily!  Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.

You must always ask: Is this authorized in the Constitution? Where in the Constitution? And precisely what is authorized by the Constitution?  Let us start at the beginning:

1.  Does the federal government have authority to make treaties? Can treaties be about any subject?  Or, are the proper objects of treaties limited by The Constitution?

Article II, §2, cl. 2, U.S. Constitution, says the President:

… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…

Article VI, cl. 2 says:

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; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]

Thus, we see that the federal government is authorized to make treaties.  Now, we must find out whether there are limitations on this treaty making power.

2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word and phrase.  The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.

So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States”.

3.  From where do the President and the Senate get Authority to act?  From The Constitution!  The objects of their lawful powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”.

If the Constitution does not authorize the President or Congress to act on a subject, any Treaty on such subject would not be “Law” – it would be a mere usurpation, and would deserve to be treated as such (Federalist No. 33, 6th para).  Because the Constitution is “fundamental” law (Federalist No. 78, 10th &11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (Federalist No. 78, 9th para).

4.  In Federalist Paper No. 44 (7th para from end), James Madison says that [absent the "supremacy clause" at Art. VI, cl.2]  a federal treaty which violates a State constitution would have no effect in that State:

…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]

Madison thus illustrates the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist Papers on this point. So, let us turn to Thomas Jefferson, who says: 1

In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]

Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]

According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]

5. So!  We see from the above that the treaty making power of the United States is very limited.  What, then, are the proper objects of treaties?  To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do.  The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, §8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, §8, cl. 11).  The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, § 2, cl. 2).

The Federalist Papers discuss the treaty making power of the United States.  John Jay says treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th paras).  Madison says treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st & 3rd paras).

In addition, Art I, §8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.  Thus, The United States could properly enter into treaties respecting patents and copyrights.

6. Now, let us consider the proposed “climate change” treaty.  There is a draft agreement which, during December 2009, is to be put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?

To answer that Question, we must first ask:  Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty?  One wants to see the actual text, but it appears that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”.  There also seem to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”.  [By the way, from where does AlGore get them to sell?]

And just what, pray, are “greenhouse emissions”?  Primarily, carbon dioxide, methane, and water vapor.  Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me].  Methane: The gas which animals belch. All very easy to control:  Kill most of the people and most of the animals!  Shut down our remaining industries.  Stop the cars. Turn off the electricity.  Cut off supplies of propane.  Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!

So!  The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress?  Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?

The answer is NO!  Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States.  It would be a mere usurpation and would deserve to be treated as such.

Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties.  It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.

7. Finally: While obama may sign a “climate change” treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, §2, cl.2).  Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty?  But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):

… 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…

and Alexander Hamilton in Federalist No. 33 (5th para):

…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 [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….

Read again the foregoing passages!  The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say.  Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!”  We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government.  And not only do we believe such nonsense, we repeat it to others.  And thus, we became part of the misinformation dissemination network.  In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis.  And then, we must learn to say, “They don’t have authority under The Constitution to do that!”  Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH

Endnote:

1 I originally obtained these Jefferson quotes from the University of Virginia webpage on Thomas Jefferson.  However, they have since reorganized their Jefferson pages, and no longer list quotes there.  I will have to find other online scholarly sources to these quotes.   Sorry for the inconvenience.

October 27, 2009; revised July 11, 2012

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October 27, 2009 - Posted by | Climate Change Treaty, Supreme Law of the Land, Treaty Making Powers of the United States | ,

43 Comments »

  1. [...] [“CLIMATE CHANGE”] TREATY: The Supreme Law Of The Land? Or Lawless Usurpation?, PH states: 1.  Does the federal government have authority to make treaties?  Can treaties be [...]

    Pingback by Not By Constitution, Not By Treaty | getdclu.com | July 6, 2012 | Reply

  2. I believe this is the Copenhagen 200 pg document you mentioned in your excellent article:

    Great work! I have learned a lot from reading your work!

    Comment by jofortruth | April 7, 2010 | Reply

  3. Doesn’t Article V clarify Treaties cannot change/amend the Constitution?

    Allan

    Comment by Allan Hampton | November 27, 2009 | Reply

    • Well, let’s do this in an orderly, logical fashion:

      1) Is the proposed treaty authorized by the U.S. Constitution? I.e., are the objects of the treaty matters on which the federal government is authorized by The Constitution to act? Since ours is a constitution of enumerated powers, we need to start our analysis with those enumerated powers. E.g., The Constitution says nothing about “parental rights” or “children”. THEREFORE, the President and the Senate have no authority to enter into treaties addressing “parental rights” or “children”.

      2. Yes, it is true that Article V sets forth the two methods of amending The Constitution, and neither method is “amendment by treaty-making”. But before one gets to this step, one must have already made the determination as to whether the objects of the proposed treaty are among the enumerated powers of the federal government.

      Comment by Publius/Huldah | November 27, 2009 | Reply

  4. If it was mentioned I missed it; Article 5 negates Treaties changing/amending the Constitution.

    Allan

    Comment by Allan Hampton | November 26, 2009 | Reply

    • Yes, you are quite right, Allan!

      Comment by Publius/Huldah | November 26, 2009 | Reply

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  6. “I do not believe the Framers would identify this as “commerce” per se, but rather a property rights issue (ie. one party’s actions damaging another’s property).”

    The point, though, is that it’s not the property of any one state. And the principle involved in the commerce clause is what’s important – particularly since the Framers would have had little notion of the idea of conservation. The idea is that the federal government would be responsible for regulating interactions of property between the states (commerce). This is an example that wouldn’t have occurred to them (because that was a while ago!) but which nonetheless uses the same principles they set down.

    “With enough pressure by way of voluntary action, you can induce a change in that company’s behavior.”

    That’s true. But before the FDA, the way that pressure was achieved ended up taking the lives of dozens before production on Uncle Walt’s Old Fashioned Opium Tonic stopped. The problem, after all, is that you presume perfect information. But if it wasn’t for a sanctioned agency, then a dozen agencies would all have their Gold Star Seal of Health and consumers would have a hell of a time trying to figure out the one that might mean something sometimes. Consumers never have perfect information, and its seldom in industry’s interest to provide it. Competition and pressure work, but when left without restraints then they work in a brutal and bloody manner. And the most ignorant – often the most poor, who lack the leisure and ability to inform themselves – get the brunt of it.

    “The State of Vermont is killing all the squirrels?”

    Hypothetical example. In fact, no state can by fiat decide to wipe out a species. Because there’s an EPA.

    “You don’t have the right to dictate my use of my property, unless my actions directly damage your rights or property.”

    This flows from the disagreement on directness, below.

    “Any law based on immeasurable, vaguely-defined, impossible-to-prove causations is no law at all.”

    I agree. Do you think you’re the best qualified for deciding what is immeasurable, vaguely-defined, or impossible-to-prove when it comes to ecology? Or do you think that perhaps things might appear to you a certain way because you have little knowledge of the field?

    “Perhaps the Katrina victims have a case against the world’s lepidopterologists?”

    That doesn’t seem a reasonable conclusion to me. To suggest that harm caused to a neighbor may not have to be of the most absolute immediate nature does not, by extension, mean that all conceivable causality must be followed. Instead, as in all things, a line must be drawn. Where to draw the line is the obvious question, but that’s academic until we agree that harming the global atmosphere constitutes harm to my neighbor.

    “Applying the Second Amendment to new forms of “arms” is a natural evolution. The radical expansion of federal authority via reinterpretation is not.”

    I agree. And things like the Patriot Act are a travesty. There is certainly a lot of abuse of the Constitution going on. I just don’t think the EPA is included in such abuse.

    “By the way, I’d be interesting in reading about that case involving the Second Amendment and offensive computer network operations if you could provide a pointer.”

    I’ll look for it ASAP.

    Comment by Alexander Davis | November 2, 2009 | Reply

    • “it’s not the property of any one state”

      Unless the tainted water spreads outside of the state, it certainly is the “property” of, and under the jurisdiction of, the state.

      “regulating interactions of property between the states”

      Does that include the emission of CO2 (a by-product of human respiration) and choosing not to by health insurance?

      “before the FDA, the way that pressure was achieved ended up taking the lives of dozens”

      If a company’s products or services have been shown to harm the lives of individuals by way of malice, gross negligence, or fraud, that company ought to be held liable.

      “you presume perfect information”

      Central planning suffers from the same “pretense of knowledge.”

      “its seldom in industry’s interest to provide it”

      Neither is poisoning your customers.

      “And the most ignorant – often the most poor, who lack the leisure and ability to inform themselves – get the brunt of it.”

      No one, including the poor and stupid, should self-medicate without a doctor’s advice. You know, that “expert” knowledge you allude to elsewhere.

      By the way, people still don’t seem to have much of a problem obtaining their opium fix, with or without the nanny state’s approval.

      “In fact, no state can by fiat decide to wipe out a species. Because there’s an EPA.”

      Oh those poor, furry critters. But if Vermont decided it was in its best interest to harvest a certain species of tree to extinction within its state borders, I’m sure the EPA would step in and stop it. And I contend this is unconstitutional.

      “Do you think you’re the best qualified for deciding what is immeasurable, vaguely-defined, or impossible-to-prove when it comes to ecology? Or do you think that perhaps things might appear to you a certain way because you have little knowledge of the field?”

      I don’t think anyone is qualified to decide what’s best for me, except myself.

      Do not insult my intelligence, sir, nor presume to know what knowledge I possess.

      Do you not agree that the majority of climatologists entered their chosen field because of a pre-existing bias regarding “global warming” and similar concerns? The scientific method may indeed by blind, but scientific conclusions drawn by human beings certainly are not.

      “that’s academic until we agree that harming the global atmosphere constitutes harm to my neighbor.”

      Both uses of “harm” need to be carefully defined. Flimsy, imprecise definitions lend credence to calls like “Cull the cows!” and “End bovine flatulence now!

      And this is hardly an academic discussion. The decisions made by our “leaders” have direct impacts on our daily lives.

      “And things like the Patriot Act are a travesty. There is certainly a lot of abuse of the Constitution going on. I just don’t think the EPA is included in such abuse.”

      I don’t like many parts of the Patriot Act either, but at least its purpose was support one of the legitimate, constitutional functions of the federal government: national defense. The EPA, along with the departments of Education, Energy, HHS, etc. have no mandate in the Constitution, and are therefore unconstitutional.

      Comment by Charlie | November 3, 2009 | Reply

  7. I just wrote a post about this on my blog, The American Informer. I am glad to see there are others spreading the truth!

    Comment by Thomas Jefferson | November 2, 2009 | Reply

  8. “You may try to palm that chore off to someone else, but THEY have NO AUTHORITY to sell my car b/c I didn’t give it to them.”

    If I ask my secretary to do it for me – i.e. delegate what you asked me to do – then it’s entirely legal. Especially if you are okay with it and have told me so, many times.

    “For Congress to transfer it’s legislative powers to the Executive Branch DESTROYS THE SEPARATION OF POWERS WHICH OUR CONSTITUTION ESTABLISHED!”

    So it may have been a poor decision by Congress. But it has little bearing on its constitutionality. Regardless of how much text you put in caps.

    “But when a nameless, faceless, unelected bureaucrat writes an unconstitutional, burdensome “regulation”, they are completely insulated from accountability!”

    I can fire my secretary. And regardless of how you think the EPA works, every regulation comes from a named person who is held accountable.

    “The agencies claim that their regulations have the force and effect of “Law” and haven’t the courts so held?”

    Surely – within the granted powers. They can’t decide to start regulating the tariff rate on copper wire because Congress never gave them authority to do so. They just operate within the strict limits of the statutes granting them power. It’s only because of those statutes that their decisions bear the same force of law as those statutes. Congress made laws against things and made the EPA the arbiter in charge of them.

    “It is clear that the clause does not grant any substantive powers to Congress.”

    No, I was quoting it rhetorically with the commerce clause. As someone who constantly quotes from the Federalist papers, you should be well aware of the power and wisdom in quoting rhetorical parts for context.

    “But the States can, if consistent with their State Constitutions, pass laws necessary to protect the environment. Private citizens can file lawsuits – Litigation lawyers love to litigate!”

    And if wishes were fishes there’d be no room for water. You can talk about the powers of the states all you want, but the thousands of cyanide pits studding Montana, used for leeching gold and since abandoned, would belie you.

    I’m curious: are you trained in the law in some capacity, Huldah? If not, I think you could be well-served by auditing a few classes. They address things like the commerce clause and statutory agencies pretty early on, I believe, and you seem intelligent and could probably pick up a lot even without further formal training.

    Comment by Alexander Davis | November 2, 2009 | Reply

    • Shame on you, Alexander!

      You moved from rational, intelligent & civil speech to patronizing me as an intellectual inferior! Did you not read the “About me” part of my web site? Is it not clear from my profound grasps of the subjects that I am a lawyer, philosopher, and logician? But yes, I have been a lawyer for almost 40 years. A political philosopher for longer than that. And a Logician from the time of my Childhood. You really can’t see this?

      And I have something else: A mind which is relatively free from indoctrination. You can have one too if you open yours up and reexamine what’s in there.

      I ask you to study my paper, “Does the ‘Interstate Commerce’ Clause Authorize Congress to Force Us to Buy Health Insurance?” This paper PROVES the original intent of the “interstate commerce” clause”.

      You do not seem to understand the “separation of powers” issue. Would I be wasting my time if I discussed this further with you? [After, of course, you have mastered what The Federalist Papers say about enumerated powers, federalism, and the “general welfare”, “interstate commerce” & “necessary & proper” clauses.

      In my paper, “Does the ‘General Welfare’ Clause authorize Congress to force us to Buy Health Insurance”, I quote Roger Pilon of the Cato Institute. In one short passage, Pilon explains the difference between Strict Constructionists, who go by The Constitution; and those who go by 220 years of Supreme Court precedent, which reflect the Constitution only occasionally. I am in one camp – You seem to be squarely in the other camp. Have you considered the consequences of going by “supreme court precedent’ instead of by the Constitution itself? think about it! PH

      Comment by Publius/Huldah | November 2, 2009 | Reply

      • Pilon’s quote:

        “Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally.”

        The crux of the issue is what the Constitution says about the role of government versus what “constitutional law” says about the role of government, and which one takes precedence. If the commerce and general welfare clauses can be reinterpreted to grant the federal government with broad authority to act far in excess of its limited, enumerated powers, then, in effect, there are no limits on its powers. This is how limited government transforms into total government.

        PH, see what I said before about the limits of rational arguments.

        This also might help explain my sentiments:

        Futilely Shooting Sparrows in My Backyard

        Comment by Charlie | November 2, 2009 | Reply

    • “Surely – within the granted powers.”

      Can Congress grant/delegate powers beyond its narrowly-defined authority as specified in the Constitution? The debate isn’t whether the actions of the EPA are within the powers granted to it by Congress, but whether the federal government has any Constitutional authority over these matters at all.

      As stated before, the proper procedure with which to empower Congress with authority beyond the enumerated powers of the Constitution is by means of Amendment… not to reinterpret existing clauses in search of broad powers outside of the original intent.

      Furthermore, the founding purpose of this government was to preserve & protect the individual rights of citizens via ordered liberty. It was not designed to engineer society to maximize efficient use or distribution of resources by way of central planning or intrusive regulation.

      By the way, I certainly don’t advocate massive, irresponsible pollution, etc. If the actions of an individual or other entity can be shown to have violated the property rights of another (e.g. I dump toxic chemicals into a river which taints your drinking water downstream), then the responsible party should of course be held liable. But if I own a vast stretch of land in a remote corner of Montana, I have the right to put that land to use however I see fit, as long as such action does not have a direct, negative impact on my neighbor’s property. In any case, broad federal regulation of the minute, day-to-day actions of individuals which is believed to have some real or imagined environmental or market impact in the aggregate (e.g. CO2 emissions) is not supported by the text of the Constitution, despite modern rationalizations to the contrary.

      “They address things like the commerce clause and statutory agencies pretty early on…”

      The commerce clause and general welfare clause have long since been contorted far beyond the intention of the Framers. The numerous references to Madison, Jefferson, Hamilton, etc. in their own words witness that fact. Once improper interpretations of said clauses are accepted as foundational precedent, all decisions and opinions based upon them (and taught in “constitutional law” classes) are flawed as well. Wrong premises lead to wrong conclusions. Unfortunately, the conventional wisdom is that early 20th-century SCOTUS opinions have more bearing on the correct interpretation of the Constitution than the words of the men who were involved with its creation.

      Comment by Charlie | November 2, 2009 | Reply

      • Charlie! Very impressive! If you were an old man who is a lawyer, I would be dazzled. But you are a young man in a totally different field! Wow! I always did love the independent thinkers. PH

        Comment by Publius/Huldah | November 2, 2009 | Reply

      • “Can Congress grant/delegate powers beyond its narrowly-defined authority as specified in the Constitution? The debate isn’t whether the actions of the EPA are within the powers granted to it by Congress, but whether the federal government has any Constitutional authority over these matters at all.”

        Indeed. And yet in the part of my reply you quoted I was actually replying to a specific point when Huldah made (*”The Constitution gave those powers to CONGRESS, not to the EXECUTIVE BRANCH!”), so my comments were actually quite pertinent. I wasn’t making a general argument, but instead contradicting one of her specific ones, which is that the executive branch . You can scroll up to read through the discussion again and see; I believe you confused two of my points.

        Anyway, Congress is explicitly granted the power to regulate commerce between the states, which certainly extends to such things as poisoning the water table that serves Georgia, Florida, and the Carolinas. Or is Florida going to pass a law ruling that Georgia can’t dump mercury into their water? And to which state exactly does the atmosphere of the globe belong? And when Vermont eradicates 75% of the habitat of the striped squirrel, does that mean that they consider their state the owner of that whole genetic strain in perpetuity, as opposed to the examples of the species in other states that now will die too?

        “But if I own a vast stretch of land in a remote corner of Montana, I have the right to put that land to use however I see fit, as long as such action does not have a direct, negative impact on my neighbor’s property.”

        I agree entirely. We just disagree about the degree of “directness,” I think you will find. Not being a biologist myself, and well aware that my own fiat is limited, I tend to side with the science that says that we live in an ecosystem in which no square mile (however “remote”) can be neatly clipped into destruction without affecting everyone else negatively – and directly. Certainly you can maybe clear some of the forest in your stretch, but if clear-cutting the whole thing would destroy the area where endangered deer have lived for many years, then that will negatively affect my neighbors to a strong degree. Thus you can cut down some of your forest, but cutting down all of it hurts your neighbor. You may not think so, but then you’re in computer science and not ecology – so maybe you’re not the person best qualified to decide, especially when one side of the decision will benefit you greatly.

        “Unfortunately, the conventional wisdom is that early 20th-century SCOTUS opinions have more bearing on the correct interpretation of the Constitution than the words of the men who were involved with its creation.”

        This is pretty arguably a good thing, and a great reason why the Constitution is so strong: it contained a mechanism for evolving to meet the unforeseen dangers of the future. For example, the Founders could never have foreseen computers, much less malicious hackers, and yet measures designed to stop hackers by remotely damaging their systems are held to be constitutional because they rest on the INTERPRETED principles of the Second Amendment. Not a word in the Federalists about hackers, and yet the principles involved are successfully divined and interpreted by our judiciary.

        Comment by Alexander Davis | November 2, 2009 | Reply

        • “you don’t appear to understand some of the most basic concepts involved…”

          Your camp appears the same way from ours. Unless we’re discussing what the Framers intended as evidenced by their own words, I don’t think “understanding” is at issue but rather, a fundamental disagreement concerning fundamental principles of government, and on which side of the fence does the Constitution lie. It is individual liberty versus what the “elite” (spit) have deemed in the best interests of the collective.

          Comment by Charlie | November 3, 2009 | Reply

          • To the best of my knowledge, Charlie, we have been discussing the application of constitutional principles on this page. Our individual philosophies may differ, but we have been talking about the same things.

            Comment by Alexander Davis | November 3, 2009

          • Individual philosophies matter. If we ascribe to different and conflicting principles, the conclusions we draw from them will consequently be different and conflicting as well. In that case, debating individual policies is futile, as our fundamental disagreements reside in the basic premises.

            When you and I talk about the proper role of government we are obviously talking about two very different things.

            Comment by Charlie | November 3, 2009

      • “I believe you confused two of my points.”

        My point was about the scope of those granted powers (continued below). Sorry for the confusion.

        “Congress is explicitly granted the power to regulate commerce between the states, which certainly extends to such things as poisoning the water table that serves Georgia…”

        I do not believe the Framers would identify this as “commerce” per se, but rather a property rights issue (ie. one party’s actions damaging another’s property).

        “And to which state exactly does the atmosphere of the globe belong?”

        An argument in favor of the global “government” described in the coming climate treaty? There are better methods to deal with supposed injuries to vaguely-defined rights than violating concrete property rights. For example, if you don’t care for a particular company’s environmental policies, you are free to choose not to do business with them and encourage others to do the same. With enough pressure by way of voluntary action, you can induce a change in that company’s behavior.

        “And when Vermont eradicates 75% of the habitat of the striped squirrel, does that mean that they consider their state the owner of that whole genetic strain in perpetuity, as opposed to the examples of the species in other states that now will die too?”

        The State of Vermont is killing all the squirrels? If my tract of land in Montana is the exclusive home to an endangered species, I do, in fact, have a legal right to hunt them to extinction, though others may have moral reservations about that. Similarly, if a certain species of tree grows only on my property, I have the right to harvest every last specimen for lumber. You don’t have the right to dictate my use of my property, unless my actions directly damage your rights or property.

        “We just disagree about the degree of “directness,” I think you will find.”

        Which brings us to our next point. Any law based on immeasurable, vaguely-defined, impossible-to-prove causations is no law at all. Chaos theory suggests that ‘the flap of a butterfly’s wings in Brazil could set off a tornado in Texas.’ Perhaps the Katrina victims have a case against the world’s lepidopterologists?

        “it contained a mechanism for evolving to meet the unforeseen dangers of the future”

        Yes, but the mechanism for fundamentally altering and/or expanding the powers of government is the Amendment process. Applying the Second Amendment to new forms of “arms” is a natural evolution. The radical expansion of federal authority via reinterpretation is not.

        By the way, I’d be interesting in reading about that case involving the Second Amendment and offensive computer network operations if you could provide a pointer.

        Comment by Charlie | November 2, 2009 | Reply

  9. Alexander, I am pleased that you can think.

    Yes. The EPA is an unconstitutional agency for the following two reasons:

    1)”Environmental protection” is NOT one of the enumerated powers of the federal government.

    2) All regulations issued by the EPA are unconstitutional because the EPA is in the Executive Branch, and purports to make “rules” which have the force and effect of “law”. But Art. I, Sec. 1 says that all legislative powers herein granted are vested in Congress. So no agency in the executive branch has the constitutional authority to make “laws”.

    The federal government has no constitutional authority to regulate mercury pollution.

    Environmental protection is something for the States and The People to handle. States can handle this on an individual basis or in compacts among each other. It can be addressed by private litigation in state courts. There are ancient common law remedies of “trespass”, “nuisance”, etc. wherein private citizens can sue those who pollute the air, water, etc. State Legislatures can, to the extent consistent with their own State Constitutions, grant statutory remedies to citizens adversely affected by pollution.

    If you would be so kind as to read all the papers on my blog, you will come to understand the elegant FEDERAL system which our Founders gave us. Of all the passages in The Federalist Papers, James Madison’s 45th Paper, 9th paragraph, best explains the “federal” structure of our government.

    It is nothing more than indoctrination, brainwashing, and conditioning which makes us believe that the federal government should handle all our problems!

    Regards, PH

    Comment by Publius/Huldah | November 2, 2009 | Reply

    • 1. That is true.
      2. The EPA does not make laws. Instead, it makes regulations and rulings within the scope of power granted to it by Congress in the Clean Air Act, Toxic Substances Control Act, Water Pollution Control Act, Clean Water Act, National Environmental Policy Act, Clean Waters Restoration Act, Water Quality Act, Wilderness Act… and about two dozen other laws that Congress passed to protect the environment. The EPA is the federal administration charged with enacting powers granted to it by Congress.

      Congress has this power because it is granted the power “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers”, which certainly includes the power “To regulate commerce with foreign nations, and among the several states.”

      It’s not really indoctrination that makes me think the federal government is best suited for this job. It’s the history of such states as Alaska and Montana, where the state governments continually have (and continue to) bow to powerful industrial interests and permit destruction of their land and the inheritances of their children. Such interests can have an overwhelming voice in the relatively small population and spindly state governments.

      Comment by Alexander Davis | November 2, 2009 | Reply

      • Thanks, Alexander,

        1. Our new “administrative” form of civil government, with all its innumerable agencies of the Executive Branch regulating every aspect of our lives by means of administrative “rules” is unconstitutional at its core:

        a) The objects of the rulemaking are outside the enumerated powers delegated by The Constitution to the federal government.

        b) Art. I, Sec. 1 says all legislative powers granted in This constitution are vested in CONGRESS! Congress may not delegate those powers to another branch! The Constitution gave those powers to CONGRESS, not to the EXECUTIVE BRANCH! If I give you a special power of attorney to sell my car, I mean to give YOU the authority to do it. You may try to palm that chore off to someone else, but THEY have NO AUTHORITY to sell my car b/c I didn’t give it to them.

        c) For Congress to transfer it’s legislative powers to the Executive Branch DESTROYS THE SEPARATION OF POWERS WHICH OUR CONSTITUTION ESTABLISHED!

        d) When Congress passes “laws”, we know who votes how and we can hold them accountable by defeating them in the next election. They are also subject to impeachment for usurpations.

        But when a nameless, faceless, unelected bureaucrat writes an unconstitutional, burdensome “regulation”, they are completely insulated from accountability!

        2. The agencies claim that their regulations have the force and effect of “Law” and haven’t the courts so held?

        3. I have addressed already the “necessary and proper” clause. Please go to my paper on the Enumerated Powers of Congress, where I PROVE, using quotes from James Madison & Alexander Hamilton, the meaning of that clause. It is clear that the clause does not grant any substantive powers to Congress.

        4. Your last point is an issue of FACT as opposed to the above, which are all issues of LAW. With issues of FACT, we would have to do some serious data collection and analysis. I leave that up to others, as I have my hands full!

        But the States can, if consistent with their State Constitutions, pass laws necessary to protect the environment. Private citizens can file lawsuits – Litigation lawyers love to litigate!

        If deemed necessary by the requisite number of States, the U.S. Constitution could be amended to grant to Congress specific authority in this area.

        Regards, PH

        Comment by Publius/Huldah | November 2, 2009 | Reply

  10. Wouldn’t your argument also imply that the EPA should be disbanded and every aspect of environmental law is just as unconstitutional as a treaty such as the Copenhagen treaty? If the government cannot regulate the emission of harmful substances that damage the environment (regardless of whether you think CO2 really IS harmful), then why should it be able to regulate mercury pollution? Why can the EPA stop the dumping of mercury, but it would be unconstitutional for them to stop the dumping of CO2?

    Comment by Alexander Davis | November 2, 2009 | Reply

    • If Congress wants to expand the powers of the federal government beyond those enumerated in the Constitution, it must do so by way of Constitutional Amendment.

      Why is it that it took an Amendment to ban alcohol in 1919 but Congress can effectively ban mercury or CO2 via ordinary legislation?

      Neither the Administrative, nor Legislative, nor Judicial branches of the federal government abides by the limits of their powers as enumerated in the Constitution. The result is that we’ve been unable to keep Dr. Franklin’s Republic.

      Comment by Charlie | November 2, 2009 | Reply

      • Right, dear Charlie! In 1919, People paid attention to The Constitution. That’s why they understood that they needed an Amendment to authorize Congress to make laws banning alcoholic beverages.

        But today, those in control of ALL 3 BRANCHES of the federal government ignore The Constitution altogether!

        And I don’t know how to Twitter! I am starting to teach a course on The Constitution at Conservapedia, and can’t even figure out how to use the site!

        Comment by Publius/Huldah | November 2, 2009 | Reply

  11. Well, Leon,
    Yes & NO.

    It is True that no branch of the federal government has constitutional authority over “climate change”. Fact is, they don’t have ANY kind of power over “climate change”! So, anything they do about “climates” is outside the constitutional powers granted to them. It would also be contrary to the Facts of Reality!

    The standard of “unconstitutionality” is whether a power is granted IN THE CONSTITUTION to any branch of the federal government. The standard is NEVER whether an act “harms the people”.

    I defer to Walter Williams re your comments about economics.
    But yes, “cap & trade” legislation, if passed, & the Copenhagen Treaty, if ratified, would completely destroy our economy, if not our country.

    You want the judiciary to rule on the validity of the “climate change” treaty?? Do you really not know that the U.S. Supreme Court is among our worst enemies?

    Read my paper on “The TRUTH about ‘Separation of Church and State'” and tell me if you trust them to ever do the right thing! PH

    Comment by Publius/Huldah | November 1, 2009 | Reply

  12. The Climate is outside the Jurisdiction of Congress, and must be Unconstitutional because it harms the People. Cap and Trade is Market monetization, trillion dollar money market in all American Energy. Greedy guts Greenies get paid for lazing around and wrecking everybody else’s job. Meanwhile they wreck the American Energy Industry at the same time they deliver a killer blow to the West U.S. Economy.

    A TREATY CANNOT BE LAW OF THE LAND AND BE UNCONSTITUTIONAL, the Judiciary must pass on it, MUST RULE.

    Comment by Leon Lundquist | November 1, 2009 | Reply

  13. Thank you so much for your excellent work. Isn’t there some way for any citizen to bring their Case of Damages? I have a good one, the government actually ruined my life, the short: I saved five girls from murder by a girl’s gang in Denver, I did it with a pistol and two warning shots. No Steak Dinner! Hell no, I got a false prosecution because Clinton put a bounty on handguns for the state. They had to prosecute to get the money from the FED gov. Honestly, the government committed a huge number of crimes but I was totally innocent.

    The State took away may electrical license, and they refused to issue me a new one when I passed their test again. Here the Executive usurps the Judiciary, the Judge knew and said I was “the most decent man” he’d ever had at his Bench and passed the absolute minimum because I was the perfect citizen. State of Colorado wants to boost my penalty by destroying my right to work (cute, in a ‘Right’ to Work State.)

    I know I have the case but never had the money, despite the fact I created tens of millions building factories. My Orwellian nightmare goes beyond harassment. Any lawyers out there want to make a case? But there are a hundred of these assuaults, it is perpetual attack, the government on its own citizens!

    Comment by Leon Lundquist | October 30, 2009 | Reply

  14. Do not despair, Charlie. People are waking up. People actually want to know about Our Constitution! A year ago, I got glazed eyes when I tried to tell people. Now, I can’t keep up with the demands on my time.

    In various places throughout my papers, I give cites to the Bible showing that under the Biblical model of polity, the King is SUBJECT to The Law, not above it. Further, The Bible established the coventantal nature of civil government: One aspect of this is that the peoples’ obligation to obey civil government is conditioned upon the civil government’s obeying the Law. Our Founders understood this perfectly and it is reflected in our 3 founding documents: The Declaration of Independence, The Constitution, and The Federalist Papers. I mean to write on this when I get time.

    Tragically, when the christian churches embraced “pietism”, they withdrew from the world, and the “ideal” Christian became a passive, ineffective person who sits around thinking about how he’d rather be in heaven, and other such non-physical “spiritual” things. Of course, that silly notion comes from Platonic and Manichean dualism, but the churchmen of our day do not know it. And worse, they do not want to know it because they like the doctrines they were taught in seminary.

    Are you the one who is a Ph.D. candidate in computer science? PH

    Comment by Publius/Huldah | October 29, 2009 | Reply

    • “Are you the one who is a Ph.D. candidate in computer science?”

      Yes, I’m a PhD student in computer science (technically, “candidacy” status won’t really begin until the end of January). Why do you ask?

      As an academic, most of the people I interact with on a daily basis are between the ages of 18 and 30. Because of what they’ve been taught in public (government-run) schools, and how they’ve been raised under an increasingly-powerful state, our youngest voters simply do not comprehend the need for limited, enumerated powers. They enthusiastically support “total government,” and want it used as a hammer to affect “change” in their favorite causes (e.g. global warming, social justice, redistribution of wealth). I don’t believe there’s ever been as much of an ideological divide between generations, and I think polls back this up.

      Before I went to graduate school, I was a commissioned officer in the Air Force. These Americans have pledged their lives to support the Constitution, though many have a poor understanding of what their oath means and what they’ve sworn to die for. So the choice and experience of military service doesn’t necessarily lead to a greater appreciation of the Constitutional role of government. Indeed, far too many of our servicemen and women have fully bought-in to the call to “fundamentally transform America.”

      I’m worried that this recent energy behind the “return to Constitutional, limited government roots” is the last burst of a dying star. I was in DC for the tax day tea party and the 9/12 protest. At 27 I was easily one of the youngest people there.

      I have a small amount of hope that the misguided youth may change their ideology following the inevitable disaster created (well, accelerated really) by this administration and Congress. However, it may, in fact, be more likely that they’ll “double-down” instead, making the disaster far worse and more permanent.

      Comment by Charlie | November 1, 2009 | Reply

      • I, a computer illiterate, clicked on something somewhere (I know not where) and found a “Charlie” whom I thought might be you who is a working on a Ph. D. in computer science. That is very impressive! Wish you were my next door neighbor – our computers give us fits. I’d give you fresh fruits, vegetables, and eggs in exchange for managing our computers.

        I fought in the trenches (litigation, trial & appellate) most of my adult life. If you outwork, outthink, outsmart, & outmaneuver the opposition, you win. And when things looked grim, I reminded myself, “The opera ain’t over till the fat lady sings.”

        About the young: That’s why Mark Levin tells his readers, “talk to your children, talk to your grandchildren”. Rush Limbaugh thinks the dems will face a huge backlash.

        Look! This week, conservatives in N.Y. forced a RINO to drop out of the congressional race in favor of a conservative! A conservative is 14 points ahead in the Virginia Gov. race. A Democrat is neck & neck with a republican in N.J., a democrat state! Acorn will surely steal it, but still, it’s a tie now. Our Dear Reader is on the defensive. He is weak,& we know what his weaknesses are.

        Remember Lord of The Rings. Talk to everyone in your spheres of influence about the moral superiority of capitalism and limited civil government. Send them to my site. I’m starting a class on the Constitution at conservapedia.com & Smart Girl Politics. Send them there.

        We fight until we win! I have other projects in the works for which I have hope. Friend! I am encouraged!

        Comment by Publius/Huldah | November 1, 2009 | Reply

      • “clicked on something somewhere (I know not where)…”

        On Twitter perhaps?

        “If you outwork, outthink, outsmart, & outmaneuver the opposition, you win.”

        I hope you’re right. However, an appeal to reason is seldom effective when dealing with unreasonable people.

        “Look!…”

        How many normal people (generally not politically-minded) outside of upstate New York are paying attention to the NY-23 race? I hope the GOP learns a valuable lesson here, but even with the treacherous endorsement of Owens by Scozzafava, I doubt they will.

        McDonnell and Christie are ahead because, by and large, the minority & youth vote has not been motivated to turn out. If they were sufficiently mobilized by the unions, media & college professors, Corzine would be ahead the the Virginia race would be much closer. As a last-ditch effort to implement this strategy, campaign ads touting “Obama Corzine” are sprouting up in New Jersey: http://images.politico.com/global//blogs/corzine%20obama.jpg

        Comment by Charlie | November 2, 2009 | Reply

  15. “open their eyes before it comes to that”

    Again, I’m pessimistic. It might not take a shooting war, though. A complete economic collapse & breakdown may be sufficient to convince the majority of the electorate about the follies of Keynesian economics & central planning. While that scenario would not see open warfare between opposing armies, it would certainly involve a great deal of strife, conflict & unrest (think LA riots, Katrina aftermath, etc).

    Then again, these breakdowns don’t always have rosy outcomes either. The meltdown of the Weimar Republic led to the Third Reich. Russians haven’t built a free market society based on individual liberty following the collapse of the Soviet Union.

    Whatever the future holds, I feel safe on betting that things will get worse before they get better. My sincere hope is that we learn from this epoch and are better off in the aftermath. But I won’t hold my breath.

    Comment by Charlie | October 28, 2009 | Reply

    • Ah! But there is a big difference between the heritage of the Americans, on the one hand; and that of the Germans & Russians, on the other hand. America was built on the Biblical principle that the “King” is subject to the “Law”: “Lex, Rex”, NOT “Rex, Lex”. In other words, The Law is superior to the civil authorities. This is the Biblical model of civil government: The King is subject to God’s Law to the same extent as the people. Further, civil government is a covenant between God, The People, and the Civil authorities. The obligation of The People to obey the civil authorities is conditioned upon the civil authorities obeying God – or in America, the U.S. Constitution. When any branch of the federal government does something contrary to The Constitution, it is, as my dear Alexander Hamilton said, a “mere usurpation and deserves to be treated as such!

      Germany and Russia were always statist! The King IS the Law!
      You can trace German statism from at least as early as Martin Luther, through Kant, Hegel, etc., and down to Hitler.

      In various papers on this site, I have tucked in comments here and there about this.

      While my undergraduate degree is in philosophy, I never read any Russian philosophy except, of course, for the 20th century communists. But Russia was always statist.

      Americans are different from Russians and Germans. Granted, the “progressives” have attempted to re-make the American People so that we would develop a slavish and dependent mindset. They succeeded with many of our countrymen! But that wasn’t enough, they want to import millions of immigrants who already have this slavish & dependent mindset.

      I agree we have hard times ahead. We will see how many of us, like you and me, resisted the conditioning of our would-be masters. And, to the best of our ability, we need to re-train those who got conditioned into statism.

      Do not give up, Friend! Now, we Fight with Words, Education and Persuasion, and at the ballot box. PH

      Comment by Publius/Huldah | October 28, 2009 | Reply

      • “the heritage of the Americans”

        This heritage is no longer being taught to our children, at least not in most public schools. Young Americans are instructed to sing, “Mmm mmm mmm!” instead of learning the founding principles of our republic.

        “the Biblical principle that the “King” is subject to the “Law””

        I’d say that’s more the product of the Magna Carta than the Bible, but I digress…

        “Granted, the “progressives” have attempted to re-make the American People so that we would develop a slavish and dependent mindset. They succeeded with many of our countrymen! But that wasn’t enough, they want to import millions of immigrants who already have this slavish & dependent mindset.”

        The majority now belongs to this mindset, in numbers great enough to win most elections. Regrettably, this alone may render the political process insufficient to restore the Constitution. How many welfare recipients & Marxist-indoctrinated college students can be persuaded to vote against their conditioning?

        Comment by Charlie | October 28, 2009 | Reply

      • Karl Marx had a plan, the Radicals took it up, they wrecked Psychology in the 50s, used that to get to the AMA. The doctors have been scattering, AMA does not represent them. Of course not, Socialists run everything into the ground. The AMA hasn’t represented the doctors for years.

        These guys are criminals. Obama has so many high crimes and misdemeanors, he makes Clinton look like a punk. But I studied the Gnostic tradition. They always talked about the Usurper. This is the Usurper Congress, the 111th.

        Comment by Leon Lundquist | October 30, 2009 | Reply

  16. Oh, I have no doubt that the statists aim to get rid of our Constitution entirely. BUT WE will fight them. We must resist all efforts to call for a con-con, which, of course, would put our precious Constitution on the chopping block.

    We must educate everyone within our spheres of influence about The Constitution and its original intent. We must explain the moral superiority of limited civil government. We must explain that the “welfare” state is based on coercion, envy and theft, not “compassion”. We must try to educate our elected officials about The Constitution. Or find and support candidates who will honor their oaths.

    We could turn this around in the next election if we take control of both houses of Congress. I’ve touched upon various remedies throughout my papers.

    I know what you mean about Hamilton and the unconstitutional central bank! But in the Federalist Papers, he was a genius and a source of great quotes. Thanks! PH

    Comment by Publius/Huldah | October 27, 2009 | Reply

    • “We must resist all efforts to call for a con-con…”

      Absolutely. The current political class could in no way improve upon the work of Madison, et al.

      “We must educate everyone within our spheres of influence…”

      While I certainly support such an effort, I’m rather pessimistic regarding its outcome. Our government has been in the process of transforming from a constitutional republic of limited, enumerated powers to a gross hybrid of various forms of statist social democracy with few (if any) limits on its power for over 100 years. It will be no simple task to reverse this process. The political process may prove to be insufficient to accomplish the goal, especially as long as our adversaries make the rules (but don’t have to follow them). Government cheese is the true opiate of the masses.

      Glenn Beck hit the nail on the head yesterday with his monologue concerning the ubiquitous sense of entitlement among today’s college students & recent grads:

      http://www.foxnews.com/story/0,2933,569689,00.html

      It may be necessary for the entire system to collapse in on itself (as in “Atlas Shrugged), much like a black hole, in order to affect common understanding of the proper relationship between economy & state and the rationale behind limited government.

      Tea parties, etc. are a step in the right direction, but I don’t see us winning this ideological war with ‘reasoned arguments’ alone. It took more than pamphlets & protests for the colonists to recover their liberties from the Crown.

      Comment by Charlie | October 27, 2009 | Reply

      • I know, friend. But then, the enemy was England. Now, it’s The Ignorant and our fellow countrymen who want to live at other peoples’ expense. So it wouldn’t be a revolution – it would be a civil war. God help us and open their eyes before it comes to that.
        And I pray that the pastors will get some spine and speak out against the Evil which is taking over our land. We never would have come to this sorry state if the lawyers & pastors had been faithful to their governing documents: The Constitution and The Bible.PH

        Comment by Publius/Huldah | October 27, 2009 | Reply

  17. I just discovered your blog, PH. Thanks for posting this, especially the last quote by Hamilton. I sometimes disagree with Hamilton’s positions (e.g. central banking), but I couldn’t agree with him more on this matter.

    The question is, just how far outside the bounds of Constitutional authority will the statists press, and what measures will be necessary to redress the injury?

    President Kennedy said, “Those who make peaceful revolution impossible will make violent revolution inevitable.” Let’s hope a peaceful restoration of the Constitution is still possible.

    Comment by Charlie | October 27, 2009 | Reply

  18. It’s comforting to know we have The Constitution on the side of the people. Now we must speak loud enough to be heard.

    Thank you Publius for the informative article, I plan on sharing it with my friends and like-minded individuals.

    Comment by Bob | October 27, 2009 | Reply

    • Thank you, Bob! I am honored by your comment and your sharing this site with your friends and like-minded individuals. Do you think we can convert any of those on the other side? I suspect that some support “big government” out of ignorance. Are they teachable?
      Stay in touch! PH

      Comment by Publius/Huldah | October 27, 2009 | Reply


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