Publius-Huldah's Blog

Understanding the Constitution

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  1. “Here is the problem with jury nullification in criminal cases: Defense counsel are not permitted to tell the jury that the statute under which Defendant is being prosecuted is unconstitutional. If we try to tell them, we are held in contempt and removed from the Courtroom. ”

    Are you saying that defense attorneys cannot use nullification as a defense tactic? If so, people are so ignorant of the constitution that jury nullificaion would never work. I was hoping to be taken to court over obamacare but now I see that would be pointless because I couldn’t use their violation of the constitution as my defense. How sad.

    Comment by IMO | October 16, 2014 | Reply

    • No, I’m not saying defense counsel can’t use jury nullification as a defense tactic. I’m saying the Judge won’t let us use it openly. Defense counsel must find a way to get the idea in the juror’s minds [well, one mind on the Jury is all you need] without coming out and saying it directly.

      Visit the Fully Informed Jury Association website.

      And I don’t know that one actually has to sign up for it. I never signed up for benefits from those programs.

      Comment by Publius Huldah | October 16, 2014 | Reply

  2. Does Article IV, Sect.3, 2nd. Para, of the US. Constitution, give the federal government claims to all the land mass within our borders, if they so desire? If not how can they claim all the land out in the western States federal property? I also believe the Antiquities Act of 1906 is unconstitutional, am I wrong?

    Comment by James | October 15, 2014 | Reply

    • Article IV, Sec. 3, clause 2, addresses primarily what was then the “Western Territory” or “Northwestern territory”. See Federalist Paper No. 43 at 5.

      Here is a map of the NW Territory as it was during 1787 – the same year our Constitution was drafted.

      Note that Art. IV, Sec. 3, clause 2, CLEARLY CONTEMPLATES that the Territory would be broken up in to States – the federal government would “dispose of it”. When the federal government disposed of the land, its jurisdiction over the land would terminate [except for those few and defined enumerated powers delegated to the federal government for the country at large], and sovereignty would be transferred to the new State.

      As to the “other Property”: That would include the military bases, federal courthouses, federal buildings, and such, mentioned at Art. I, Sec. 8, next to last clause.

      The powers delegated to the federal government do NOT include, “forestry”, “oil wells”, “farmer”, “rancher”, “landlord”, etc. The federal government has no constitutional authority to hold all those lands.

      How did the feds get them? It appears that Congress conditioned the admission of the western states into the Union upon the new State’s agreeing that the feds could have these vast parcels of land. But that agreement was unconstitutional.

      Is the Antiquities Act of 1906 constitutional? Well, you tell me: Where does our Constitution delegate to the federal government power to “preserve antiquities” on “public” [yeah, right] land? Where does our Constitution delegate to the federal government power to set aside, for it to control, vast stretches of “public land”?

      Comment by Publius Huldah | October 16, 2014 | Reply

  3. PH,
    Thank you for allowing me to pursue this subject for I believe who decides the constitutionality of federal actions and what consequences are allowed to be the fundamental issue facing us today.

    First I will make my excuses for any idiotic statements I have made and will make. My field of training and experience is physics, the study and consequences of natural laws. My foray into trying to understand man-made laws and their consequences is of interest but lacks training. I certainly appreciate the efforts you have taken to help me fill this void. At any rate I assure you my thoughts are my own and are not derived from reading liberal propaganda on this or any subject.

    I am however not without some knowledge for I read and wrote summaries of each of the Federalist Paper for a Tea Party website. Understanding that a little knowledge can be dangerous I nevertheless believe I understand some of the arguments made in the papers as to why the states should have no fear that the federal government being established would usurp their sovereignty.

    In summary, Madison argued that no law could be passed without the concurrence of the state legislatures because they selected the senators. He also made the point that the rules for elections, who could vote, etc, were determined by each state and the states picked the delegates that voted for the president. Hamilton’s main point regarding state sovereignty seems to me to be that the states had the military advantage and would always have it because a federal standing army had to be re-authorized every two years by congressional law that could be blocked by the states. (Of course the states gave away all these safeguards by approving amendments to the Constitution.)

    My reason for the above paragraph is because it leads me to believe there was no need to give the states the power to decide the constitutionality of laws given they already had that power as discussed above. It is also the reason there is no mention in the Federalist Papers of the states having this power to determine the constitutionality of federal laws. Had it been an issue it would have been easily solved by adding a statement in the 10th amendment explicitly giving states that power but of course it was not included. Even when Hamilton in 78 told the states that it is the courts as intermediaries between the people and the legislature who are to decide the meaning of the Constitution, they did not object.

    But, using Madison’s arguing technique, lets assume such a power was granted and that an individual state could decide the constitutionality of federal acts and nullify in their state those they deemed unconstitutional. If true then nothing would prevent laws truly constitutional from being deemed unconstitutional and nullified by law in any state. That would result in a situation where the state laws would be superior to federal constitutional laws. Clearly the founders would not have approved of this result and thus that power could not have been granted.

    So my opinion that may be total nonsense is that this power was never granted or left to the individual states by the founders because the states acting collectively could prevent any attempted usurpation of their sovereignty. The states then gave the safeguards away. Now the states, never having the power to individually nullify federal laws they deem unconstitutional, have a serious problem.

    The only way I see that the states can decide constitutionality and nullify federal laws, in the eyes of the nation, is by returning to the original concept for maintaining their sovereignty, namely collective action where a majority of states agree that a law is unconstitutional and requires nullification. As an aside, when I first began thinking about this issue my solution was an amendment giving a majority of the states collectively the power to veto federal law just as the president can veto a law.

    Comment by Don Mellon | October 15, 2014 | Reply

    • 1. You have completely missed the fundamental principles of our Founding as set forth in our Declaration of Independence. Read the 2nd para, diagram it and ponder it. Our Constitution is based on those Principles. There are 4. What are they?
      2. It is not true that these are mere man-made laws and concepts – the principles on which our Declaration and Constitution are based come right out of the Bible. I have written on this. Right Principles of Polity are woven into the Fabric of Reality to the same extent as are the Laws of Physics.
      3. Here is a paper which addresses some of the common misconceptions about nullification: This is really an excellent paper for addressing some of the misconceptions.

      In a later paper, “James Madison Rebukes Nullification Deniers”, I expanded the discussion of nullification.

      I must run – will be unavailable for a few days – but you have your homework assignment!

      So what kind of physics do you do? Alas, I never went beyond high school physics.

      Comment by Publius Huldah | October 16, 2014 | Reply

      • PH,
        I have finished my homework and I think I better understand from where our differences come.

        To start the discussion let me repeat a line from your paper on nullification. “Thus, nullification is both a Power retained by the States & The People as well as an Obligation imposed by Oath.” We both agree this is true.

        In statements like this however, I interpret the word “states” to mean the body of states or the states taken as a whole. That is if the states agree that a law is unconstitutional then they can nullify it at the national level. Many others, yourself included I think, take the word to mean the individual states. That is each state can decide a law is unconstitutional and nullify it in their state. I have looked and I have found no definitive justification for either interpretation. In fact you can read, for example, Madison’s 1800 Report on the Virginia Resolution with either interpretation in your mind and the same message is obtained.

        I know exactly where my interpretation came from. It was when I was reading Madison’s justification for the supremacy clause in Federalist 44. He makes the point that the state constitutions cannot be supreme to the Constitution for three reasons: it would leave the new congress impotent, it would have brought into question every power contained in the proposed Constitution, and because every state Constitution is different any important treaty or national law would be honored in some states and not in others.

        It was this third point in particular that made me think about what our country would be like if every state could decide the constitutionality of federal laws and modify their constitutions or pass laws to nullify those they considered unconstitutional. Madison describes a government operating under his three criteria as “a monster in which the head was under the direction of the members”.

        I use two other facts to support my interpretation although they are not definitive. One, both the Virginia and Kentucky resolutions were sent to the legislatures of the other states for their concurrence and support and when none concurred no action was taken and in fact Madison seemed quite insulted. This is not definitive because about that time the presidency changed and the law being questioned was no longer being enforced. But my point is why did they send the resolutions to the other states for concurrence and why did they not just nullify the law in Virginia and Kentucky?

        The second point is in Madison’s 1800 Report on the Virginia Resolution. He states ” If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the state constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.”

        Reading that, to me, he is saying that when the federal government oversteps their powers all the states should act together to “preserve the Constitution” and “arrest the progress of the evil” and to “provide for the safety of the parties to it”, and to protect “all the state constitutions”. Although not definitive, these are large goals that can not be accomplished by an individual state or a few states nullifying the federal action.

        Anyway that is what I believe, when the feds do something really dangerous to our sovereignty like Obamacare, then the the states acting together can and should nullify that law. This would be the most effective strategy and very difficult to challenge in court. Twenty six states were party to the SCOTUS law suit challenging the mandate in Obamacare. They lost but suppose they never appealed to the SC and had decided among themselves that none of them would follow any provisions in the law and they would do everything they could to arrest the progress of the evil. I believe either that law would no longer exist or would have been greatly modified.

        Unfortunately I believe, no one seems to be thinking along the lines of coordinated collective action nullifying federal unconstitutional laws.

        I have always supported state nullification by non-compliance, that is not allowing any state resource being use to help implement a law, for several reasons. It does not require wimpy state legislators to decide constitutionality and the courts can not object so it might actually happen. My hope would be that if enough states employ this technique on their own then that would accomplish the same result as if they coordinated their efforts.

        I studied solid-state physics and was employed in the defense industry. As a conservative I don’t think I could have survived in the academic world.

        Comment by Don Mellon | October 18, 2014 | Reply

        • I address below only some of the assertions you make. It is a waste of time to address all your assertions if we can’t get beyond these 4 points:

          1. The word, “States”, is used by our Framers in a variety of senses. I recollect that Madison discusses these various meanings in his Report of 1800 to the Virginia Legislature on the Virginia Resolutions of 1787. It is clear which meaning he is using in his Report. In my writings on nullification, I use the term in the same way that Madison uses it in his Report.

          2. The definitive justification for States nullifying unconstitutional acts of the federal government is clearly set forth in The Kentucky Resolutions of 1798, Hamilton’s writings in the Federalist Papers, and Madison’s Report of 1800. Lay your preconceptions aside and read only what these writers say. If we don’t lay our preconceptions aside, then they filter what we read, and what passes through the filter of our preconceptions is ONLY what we already believed. That is Not Good.

          3. Re Madison’s justification of the supremacy clause: You are making the same mistake – you are letting your preconceptions filter out that which contradicts what you already believe. Also, you must read everything an author writes in pari materia with everything else he wrote which touches on the same subject. Madison is only saying that to the extent state laws or a state Constitution conflict with the federal Constitution or with federal laws made “pursuant to the Constitution” or with Treaties “made under the authority of the United States”, does the State Constitution or State law fail.

          For example, a State law or constitutional clause which said that candidates for the office of Representative to Congress must be at least 30 years of age would be unconstitutional as in violation of Art. I, Sec. 2, cl. 2, U.S. Constitution.

          I have separate papers where I addressed the meaning of “in pursuance thereof” and, as to treaties, “under the authority of the United States”. A federal law which is NOT made “in pursuance of” the powers delegated by the Constitution would be unconstitutional. A treaty which is NOT made “under the authority of the United States would be unconstitutional. Such are appropriate objects for nullification.

          Open your mind and read what our Framers actually said – and don’t filter out what doesn’t fit your preconceptions!

          4. Re the Kentucky and Virginia Resolutions: Do you not understand the distinction between a law which The People or the States can directly disobey by refusing to comply; and a law where The States and The People can only thwart, impede and subvert?

          The Alien and Sedition Laws were addressed to the powers of THE PRESIDENT! The States couldn’t refuse to obey – because the acts pretended to grant dictatorial powers to the president! I addressed this in my paper, “James Madison Rebukes Nullification Deniers”. I am sure that it is written so that the Folks can understand it.

          It is NOT difficult to learn to read and while doing so, lay aide one’s preconceptions – i.e., what one thinks one already knows about the topic.

          Comment by Publius Huldah | October 20, 2014 | Reply

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