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Understanding the Constitution

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  1. I would like your opinion on this move.http://www.nationallibertyalliance.org/sites/default/files/write_quo_warranto.pdf
    This was sent simultaneously to all federal judges in all 50 states and 3000 plus counties and 51 originals to all 9 Supreme Court Justices.

    Comment by Ron Vrooman | November 20, 2014 | Reply

    • It is pretentious and silly. And shows why people should not meddle in areas where they are not qualified.

      Would they perform brain surgery on a patient? So why do they think they are qualified to spout off about Quo Warranto?

      If they wanted to help, they would buckle down and learn our Declaration of Independence and Constitution and get others to do the same. And they would work to elect to office people who had learned those two Founding Documents.

      As it is, they are just showing off and making fools of themselves and spreading ignorance and misinformation…..

      Comment by Publius Huldah | November 21, 2014 | Reply

      • PH, if I may? This is a joke! They have NO standing. No filing fees have been paid. No certificate of service is provided. The signer of the document is not know. This is just another scam. Not a single one has been returned. It has been completely ignored.

        These people think they will have 4 volunteers in each county of the nation and they will direct the sheriffs and the courts you to arrest and who to prosecute. The want to pull the law out of their collective butts and set in judgement of all. Basically they want to overthrow the existing Republic and establish their own little dictatorship based on meetings in the back room of Denny’s. They believe they will get paid 64,000 in wages to take over the government if they will just send him money.

        Their great writ of mandamus was also completely ignored, all 1,800 of them. In Florida there is one guy now facing 14 felony charges for hi-jacking a grand jury. They have thrown him under the bus and abandoned their efforts in Florida.

        Comment by Douglas | November 21, 2014 | Reply

        • Douglas, your comments are most appropriate.

          I expect some of the followers of this movement are frustrated about the way things are going, but they lack the wisdom to know what to do about it. And they lack the discernment needed to distinguish the wise from the charlatans. And their conceit is great enough that they refuse to listen to someone who actually knows. It seems that the more ignorant a person is – the more opinionated by becomes.

          And it is a crying shame b/c there is a terrible shortage of workers on our side.

          Comment by Publius Huldah | November 21, 2014 | Reply

  2. I’m rather ashamed to admit that I just “found” you this week, and that reading/listening to some of your posts has totally changed my mind about the whole Convention of States discussion. Better late than never, I suppose.

    But now I have a question. I just listened to Michael Savage’s mini-rant (see the link to the audio at: http://www.wnd.com/2014/11/michael-savage-heres-how-to-stop-obama-amnesty/)

    Is Savage correct? Is his suggestion a viable (Constitutional) action plan for the next Congress?

    I eagerly look forward to reading your response, and thank you!

    Comment by Ted Hatfield | November 18, 2014 | Reply

    • I don’t know why you would be ashamed – I am old and expect to discover many new things in the days and years ahead. I would be terribly bored if I didn’t have (to look forward to) that huge rush I get when I see something I didna see before.

      Glad the lights came on about the convention! Now you must help others see.

      Re unconstitutional executive orders:

      The remedy our Framers advised when members of the executive [and judicial] branch usurp powers is impeachment, trial, conviction, and removal from office. See Federalist No. 66 (2nd para) and 77 (last para). See this short primer on Impeachment: http://publiushuldah.wordpress.com/2013/08/08/impeachment-all-you-need-to-know-and-you-do-need-to-know-it/

      But the American People refuse to elect to Congress people who have the knowledge & backbone to impeach usurpers in the Executive and Judicial Branches. It is the American People who have failed and who are REFUSING to man up and take responsibility. They are still blaming the people they elect – and re-elect.

      Trey Gowdy suggested the idiotic idea of suing the President for usurping powers: Here, in 2 minutes, is what I think of that silly idea: https://www.youtube.com/watch?v=KH4_OIWMhvA

      So Michael Savage has come up with another gimmick as a substitute for impeachment, trial, conviction and removal: repeal the underlying act. There is nothing wrong with that – except that it will be totally ineffective. obama doesn’t care whether there is an underlying act or not – he’ll do what he wants b/c he knows he can get away with it because the American People elect ignorant people & sissies & cowards to Congress.

      Americans are addicted to laziness and love nothing more than spouting off their own uninformed “opinions”. To get them to toss their worthless “opinions” that they are so proud of, and buckle down and do some actual learning about our two short & simple Founding Documents, seems to be impossible. Still, we must do what we can.

      This explains ALL about Presidential powers – people seem to really like this paper: http://publiushuldah.wordpress.com/2011/08/30/the-presidents-enumerated-powers-rulemaking-by-executive-agencies-executive-orders/

      Thank you for your note. It lifts my spirits!

      Comment by Publius Huldah | November 18, 2014 | Reply

      • You are too kind, young lady! I was merely surprised that I hadn’t heard of you prior to this month considering how long I’ve moved in conservative circles. Too many senior moments, perhaps …

        I devoured the information in the links you so kindly provided and also ran down several ‘peripheral’ links, and included them in a massive email to trusted family members, friends and a brother curmudgeon or two. That should engender some lively holiday discussions!
        {:-)

        Begging your advance forgiveness for further imposing on your good graces, the logical next question, considering the seemingly well-organized CoS movement, concerns strategic and tactical issues.

        Other than the obvious need for one-on-one or family/small group ‘encounters’, is there any (more or less) organized structure—tasked with ‘evangelism’—into which an Atlanta area resident could plug himself? Are there meetings or speaking engagements which could be publicized and attended, and for which assistance could be rendered? Or can the organizational seedlings be nurtured somehow?

        (And, by the way, you lift a lot of folks’ spirits!)

        Comment by Ted Hatfield | November 20, 2014 | Reply

        • YES! And I am coming to Marietta Ga on Dec. 3 to speak on the frightful dangers of an Article V convention.

          My host for the event is: North West Georgia 9/12 Project

          Richard Arena of that organization is my main contact person there. I’ll check to see if I may post his email address here. Otherwise, I’ll email it to you.
          Am I going to have the pleasure of meeting you???

          I hope to have a flyer for the event shortly.

          Comment by Publius Huldah | November 20, 2014 | Reply

          • How very cool! I’ve put 3 December on the calendar–thankfully, my phone is smarter than I am–and very much look forward to meeting you, absorbing your presentation, and getting plugged into a viable, local action plan. Do you have access to my email address (or, if not, is there a secure way that I could transmit it to you)? I’ll contact my ‘cadre’ and see if we can mount a respectable presence. Many thanks!

            Comment by Ted Hatfield | November 20, 2014

          • That is wonderful – that you will be there. My contact, Richard Arena, is working on an updated flyer for the Dec. 3 event. Here is his email address:
            Richard@Constitutionality.us He seems to have a GREAT group.

            Yes, I have your email address – it is hidden from the Public, but I can see it. My email is publiushuldah@gmail.com

            Comment by Publius Huldah | November 20, 2014

  3. SECTION 24 RIGHT TO BEAR ARMS.

    The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

    BTG,

    Pretty big loopholes there. I guess it is alright to defend yourself but not your family is one problem. The other is someone, apparently the state, gets to decide what arms can be used for your self defense. If the state decides assault weapons are not appropriate for self defense then they can be made illegal. Or magazines with more than 6 rounds, or calibers greater than 22, and so on.

    I prefer “the right of the people to keep and bear Arms shall not be infringed”.

    Comment by Don Mellon | November 2, 2014 | Reply

    • No, Don! You are misreading Sec. 24. The State Constitution permits any arms. It recognizes the right as an individual right as opposed to a collective right which can be exercised only when one is in the organized State Militia. It need not say that one can also defend his family – the natural law has always recognized the right of a person to defend his family.

      All it prohibits is the maintaining of private armies – private posses. There is nothing wrong with Sec. 24!

      And I bet if we checked, we would find that businesses are allowed to hire armed watchmen in that State.

      Comment by Publius Huldah | November 2, 2014 | Reply

  4. Hi PH,
    I understand and fully concur that the founders agreed that the people have the right to nullify unconstitutional acts by the feds. But, in your article “The Biblical Foundation for Our Constitution” you point out Lex, Rex by Rutherford, and biblical passages in which the Old Testament prophets rebuked kings when they violated God’s law, but I saw no biblical passages that granted the people that type of authority. So, without biblical authority, it seems to me that the people’s opportunity to resist and eliminate evil leaders is limited to the election process. Even the prophets were not authorized by God to do more than rebuke the king. I agree that spiritual leaders (O.T. prophets and N.T. pastors) seem to have God’s authority to rebuke civil leaders, but I see no biblical authority for the people to do more than file an appeal or petition to the federal government. I see nothing that allows us to ever defy, disobey, or nullify unjust laws. Again, I fully agree that especially Thomas Jefferson and James Madison were tremendous spokesmen for nullification, and that it is fully constitutional, but, is it BIBLICAL?? I hope that it is, because I have been one of the strongest proponents of nullification, and a detester of Levin’s article 5, but PLEASE give me BIBLICAL citations that authorize civil disobedience for matters other than violations of conscience/faith. Daniel’s refusal to bow down to the golden statue was a personal matter, NOT a civic matter. I am just looking for answers.
    Thanks, and best regards,
    John Noble

    Comment by John Noble | November 2, 2014 | Reply

    • 1. I think you have not grasped the fundamental concept that Rights come first – THEN, governments to “secure” them. And when governments become destructive of the purposes for which they were created, it is the right and the duty of the people to alter, abolish, or throw off that government. THIS IS OUR FOUNDING PRINCIPLE! IT IS THE PRINCIPLE ON WHICH WE FOUGHT A REVOLUTION, and it is the principle on which our Constitution is based. This is also the Principle on which nullification is based: When the federal gov’t exercises powers not delegated, the States – as the creators of the federal government – have the NATURAL RIGHT to refuse to submit to the unconstitutional acts. James Madison goes on and on about this in his discussion under the Third Resolution in his Report of 1800 to the Virginia Legislature on the Virginia Resolutions of 1798. I quote him in my paper, “James Madison rebukes Nullification Deniers”.

      You are expressing the European mindset that governments come first, and the people have only the rights that governments or Constitutions say they have. I realize that due to the indoctrination to which we are constantly subjected, this has become the prevailing dogma of our time.

      I have been trying to restore the original understanding of our Founders & Framers – the understanding which made us the freest & best country in the history of mankind.

      2. You didn’t see this in my paper, “The Biblical Foundation of our Constitution”?

      6. The Peoples’ Obligation to obey the Civil Authorities is conditional upon the Civil Authorities obeying the Higher Law.

      The Bible: As shown by the Scripture at Principle 4, civil government is a covenant between God, the king, and the People. God makes the Laws; the king promises to obey and apply those Laws; and the people pledge themselves to the Covenant.

      Out of this relationship between God, the king and the people, arises the peoples’ obligation to protest lawlessness on the part of the king. If they don’t protest, God punishes the people because of the misdeeds of their kings – the people will suffer if they go along with the unlawful acts:

      God sent a 3 year famine because Saul put the Gibeonites to death (2 Sam 21).
      God sent a pestilence which killed 70,000 Israelites because David took the census (1 Chron 21 & 2 Sam 24).
      God (via Elijah) sent a famine because Ahab & his house forsook the commandments of the Lord (1 Kings 16:29-33, 17:1, 18:1, 18:17-19).
      God struck a heavy blow at Joram’s people because of Joram’s wickedness (2 Chron 21:1-14).
      God visited 4 dooms upon Jerusalem & the Southern Kingdom because of the sins of Manasseh (2 Kings 21:10-17 & Jer 15:3-4).

      The parallel in our Constitution is this: When Congress makes a law which is outside the scope of its enumerated powers, it is no “law” at all, but is void; and we have no obligation to comply. Alexander Hamilton says this over and over in The Federalist Papers. Here are a few examples:

      “…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, 5th para). [boldface added]

      “…acts of … [the federal government] which are NOT PURSUANT to its constitutional powers … will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…” (Federalist No. 33, 6th para). [boldface added]

      “…every act of a delegated authority, contrary to the tenor of 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 … may do not only what their powers do not authorize, but what they forbid.” (Federalist No. 78, 10th para). [boldface added]

      Hamilton also tells us that Congress can’t usurp powers unless the People go along with it! In Federalist No.16 (next to last para), he points out that because judges may be “embarked in a conspiracy with the legislature”, the People, who are “the natural guardians of the Constitution”, must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”

      So! Hamilton applies the Biblical model of what WE are supposed to do when the federal government acts outside of the Constitution. We are to recognize that their acts are “void”, and We are to take whatever prudent measures are necessary to enforce the Constitution.”

      Do you see? I’ve addressed this elsewhere – one day, I need to get a proper index made… But this is the gist.

      Comment by Publius Huldah | November 2, 2014 | Reply

  5. Hi PH

    In Washington State we have two Initiatives on the ballot that appear to be opposite in nature. Initiative 594 wants more extensive background checks etc. while I-591 prohibits government agencies from confiscating firearms without due process.

    My concern is with the last part of I-591 where it says: …or from requiring background checks on firearm recipients unless a uniform national standard is required.

    It seems to me that whatever federal laws are made in this regard, unconstitutional or not, Washington State by its own law will automatically accept it.

    Since the federal government has no legitimate authority to require any national standard on our natural rights, is I-591 a Trojan Horse or am I making a mountain out of a mole hill and it amounts to nothing?

    Thanks,

    ~BTG

    BTW, I came across an article written back in 1982 by Don Bell titled, ‘What Happened To Our Constitution’ that is a gem.

    http://www.kingsbenchletter.com/library/donbell/doc.php?v=29&n=38

    Comment by BTG | October 31, 2014 | Reply

    • You are absolutely correct, dear one.

      Note also that I-591 permits the confiscation of arms as long as a court decides that the disarmed person got “due process”. I would vote against it for that reason and also for the reason you gave.

      What does your State Constitution presently say about the right to be armed? Look at the Declaration of Rights part of your State Constitution.

      Comment by Publius Huldah | October 31, 2014 | Reply

      • Hi PH

        In the WA State Constitution, we have:

        SECTION 3 PERSONAL RIGHTS.

        No person shall be deprived of life, liberty, or property, without due process of law.

        SECTION 24 RIGHT TO BEAR ARMS.

        The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.

        So does Section 24′s ‘shall not be impaired’ overrule Section 3′s ability to deprive property by due process when specifically dealing with firearms? or can WA State already legally confiscate an individual’s firearms through Section 3?

        I started researching some of the players behind I-591, that alone is also enough to vote against it. Perhaps just a coincidence that the two initiatives are on the same ballot but it smells like a reactionary trap. If people don’t vote for I-594, they are apt to run away from it into the waiting arms of I-591 to protect them. Which ever one passes, a win/win scenario for the degressives.

        ~BTG

        Comment by BTG | November 1, 2014 | Reply

        • Sections 3 and 24 of your State’s Declaration of rights have separate spheres of operation:

          1. If you go to my Home page and click on the category “due process”, you will get two papers where I explain the original intent of “due process”. Here is a quote from the 2nd paper:

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

          So Sec. 3 of your State Constitution addresses criminal trials only. It does not permit the State government to infringe the right of Citizens to have arms.

          2. The existing SECTION 24 RIGHT TO BEAR ARMS of your Constitution is very GOOD and should not be changed:

          “The right of the individual citizen to bear arms in defense of himself, or the state, shall not be impaired, but nothing in this section shall be construed as authorizing individuals or corporations to organize, maintain or employ an armed body of men.”

          Under this existing provision, the State government has NO LAWFUL AUTHORITY WHATSOEVER to impair individual citizens’ natural right to bear arms in defense of self or the State. The State government is prohibited from requiring ANY background checks as a condition precedent to owning arms.

          [However, you may not employ a private body of armed men. Remember the TV Westerns where the bad guy had his own army of thugs who terrorized the town? That is what Sec. 24 forbids.]

          3. The two sections are NOT opposite in nature. They are both vicious schemes to disarm the people of your State.
          I hope the people won’t fall for it.

          A similar plot is afoot in Alabama. http://www.renewamerica.com/columns/miller/141015

          Stop them, Blue Tail! You have the brains.

          Comment by Publius Huldah | November 2, 2014 | Reply

  6. “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

  7. 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.

      http://www.earlyamerica.com/earlyamerica/maps/northwest/enlargement.html

      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

  8. 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: http://publiushuldah.wordpress.com/2011/04/17/nullification-smacking-down-those-who-smack-down-the-constitution/ 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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