The First Amendment does NOT give islamists the right to build mosques, proselytize, and institute sharia here!
Here I rebut the 3 major lies of our time: Multiculturalism is good; islam is a peaceful “religion”; and the First Amendment gives islamists the “right” to build mosques, proselytize, and institute sharia here.
Let us repudiate the lies; and rebuild the shining city on the hill.
By Publius Huldah
Our own Ignorance is destroying us. Mark Twain wrote in his autobiography:
“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.”
That is what has been going on in our Country for a very long time. Our “intellectuals” can’t think; our “scholars” parrot each other; the self-educated fixate on idiotic theories; no one studies original source writings; and The People jump on every bandwagon that rolls by.
In order to write intelligently on our Constitution, one needs to have studied and understood the original source writings of our Framers. No matter what your educational level, if you don’t know what is in our Declaration of Independence and federal Constitution; and if you are not familiar from personal study with The Federalist Papers, The Kentucky and Virginia Resolutions of 1798, Madison’s Report on the Virginia Resolutions (1799-1800), and Madison’s Notes on Nullification (1834), among other original source writings, then you have no business writing about these issues.
But we are flooded with rubbish about the Constitution put out by law professors, history professors, Ph.Ds. of this or that, Heritage Foundation, those with no academic qualifications, and politicians. And none of them know what they are talking about!
And The People read their rubbish and believe it.
One of many such writings which plague us is the Balance of Powers Act (“BOPA”). 1
The BOPA reflects a justified frustration with the innumerable usurpations by the federal government during the last 100 years.
But it also reflects such fundamental misunderstandings of our Founding Principles that it misstates or ignores them. Accordingly, it undermines our Constitution.
There are 6 major problems with the BOPA:
1. It wrongly presents the federal government as a party to the U.S. Constitution.
Throughout the BOPA, the following refrain is recited:
“The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]
That refrain elevates the federal government (“the United States”) 2 to the status of a “party” to the compact (Constitution)!
But the federal government is not a party to the Constitution! WE THE PEOPLE created the federal government when we ordained and established The Constitution. The federal government didn’t even exist until the Constitution was ratified.
Accordingly, our Framers understood that the federal government is merely our “creature”, and is not a “party” to anything. In Federalist No. 33 (5th para), Alexander Hamilton writes:
“… 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 [Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [boldface mine]
Thomas Jefferson writes in his Draft of the Kentucky Resolutions, 8th Resolution:
“… they [The States] alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, …” [emphasis mine]
James Madison writes in his Report on the Virginia Resolutions (1799-1800) under the 3rd resolution:
“It…[is]…a plain principle, founded in common sense…and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. … The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; … ” [boldface mine]
Hamilton, Jefferson, and Madison are saying that because the States alone are “the parties” to the compact, they are the final authority to decide whether their “creature”, the federal government, has violated the compact. THIS is why States have the natural right of nullification!
But by asserting that States and the federal government are in a “compact” together, the BOPA elevates our “creature” to the status of a sovereign party right up there with The States! Thus, it undermines the “plain principle” that the States alone, as the parties to the compact, have the right to decide, in the last resort, whether the federal government has violated the compact! 3
2. It wrongly suggests that each State (after the original 13) has a different Constitution
Here is another wrongheaded aspect of the same refrain in BOPA:
“The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]
The BOPA makes the absurd suggestion (which is piled on top of the untrue assertion that the federal government is a party to the compact) that every State admitted after the original 13, has a different “compact” with the federal government, depending on the year of admission.
So instead of one Constitution applicable to all States, we have (according to the BOPA) some 37 “compacts” (Constitutions) [50-13= 37]. Not only is this absurd, it perpetuates the lie spewed by progressives that the meaning of the Constitution evolves.
When Tennessee was admitted to statehood on June 1, 1796, she was admitted “on an equal footing with the original states, in all respects whatsoever”. The U.S. Constitution has the same force in Tennessee and in the same manner as if Tennessee had been one of the original 13 States. See, “An Act for the admission of the State of Tennessee into the Union”.
3. It misstates the original intent of the “interstate commerce” clause.
Section 2 (3) of the BOPA asserts that the interstate commerce clause (Art. I, Sec. 8, cl. 3):
“…was meant to empower Congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines…”
That is demonstrably false, and no authorities are cited.
We look to The Federalist Papers to learn the original intent of the clause. Federalist No. 22 (4th para), Federalist No. 42 (9th &10th paras), Federalist No. 44 (at 2.), and Federalist No. 56 (4th & 5th paras), explain the two purposes of the “interstate commerce” clause:
♣To prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and
♣To permit the federal government to impose duties on articles of commerce and imports.4
4. It doesn’t properly set forth the original intent of the “necessary and proper” clause.
Section 2 (4) of the BOPA asserts that the necessary and proper clause (Art. I, Sec. 8, last cl.), was:
“… a limitation of power under the common-law doctrine of “principals and incidents,” which restricts the power of Congress to exercise incidental powers. There are two (2) main conditions required for something to be incidental, and therefore, “necessary and proper.” The law or power exercised must be 1) directly applicable to the main, enumerated power, and 2) it must be “lesser” than the main power.”
That is neither helpful nor authoritative.
The Federalist Papers explain the original intent of this clause. It merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2nd para); and thus the clause is “perfectly harmless”, a “tautology or redundancy” (No. 33, 3rd para). Madison says the same in Federalist No. 44, at 1 (under his discussion of the SIXTH class).
In plain English, the clause merely permits Congress to make laws to carry out the enumerated powers of the three branches of the federal government.
For example: The duty of some of the federal courts created by Art. I, Sec. 8, cl. 9 is to conduct trials (in the types of cases Art. III, Sec. 2, cl. 1 permits them to hear). Trials involve parties and witnesses. They must be required to tell the Truth! So, it would be necessary and proper for Congress to make laws against perjury in federal court.
5. It misstates the original intent of the “general welfare” clause.
Section 2 (5) of the BOPA asserts that the general welfare clause (Art. I, Sec. 8, cl. 1) requires:
“… that congress only enact laws which serve all citizens well and equally. When James Madison was asked if this clause were a grant of power, he replied “If not only the means but the objects are unlimited, the parchment [the Constitution] should be thrown into the fire at once.” Thus, we re-establish that this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States, showing no favor to any race, creed, color or socio-economic class.”
That is not true, and no authorities are cited in support of the assertion that the general welfare clause means that Congress must treat all social classes the same.
The limitation imposed by the Constitution on Congress’ powers is that laws made by Congress must fall within the scope of the enumerated powers delegated to Congress.
The term, “general welfare”, as used in our Constitution, has nothing to do with treating people of all races, creeds, and social classes the same.
Our Framers understood the “general welfare” (as applied to States) to refer to:
“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government.” (Webster’s 1828 Dictionary)
They saw that this condition could be brought about by the federal government we created in our Constitution: A federal government divided into three parts, with each part having checks on the other parts; and with only enumerated powers delegated to each of the three parts.
Accordingly, the Preamble to our Constitution says:
“WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” [boldface mine]
And that portion of our Constitution which introduces the list of most of the enumerated powers delegated to Congress over the Country at Large (Art. I, Sec. 8, cl 1) says:
“The Congress shall have Power … to … provide for the common defense and general Welfare of the United States…” [boldface mine]
Immediately thereafter follows the enumeration of 15 specific powers delegated to Congress over the Country at Large. In essence, these 15 powers authorize Congress to:
♣Provide for military defense and international relations and commerce;
♣Establish a uniform commercial system (bankruptcy laws, a money system based on gold & silver, weights & measures, mail delivery & some road building, patents & copyrights); and
♣Make laws for naturalization of new citizens.
Our Framers understood that the “general Welfare” – the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government – would prevail with the federal government of narrowly defined and enumerated powers created by our Constitution! 5
Section (6) (A) of the BOPA then goes on to assert that the commerce clause, general welfare clause, and necessary & proper clause were amended and limited by the 2nd, 9th, and 10th Amendments!
Rubbish! Not only is no authority cited for this bizarre assertion, it is because the author lacks understanding of the original intents of the three clauses that he believes they needed to be “fixed” by amendments!
6. It ignores the Essential Characteristic of our Federal Constitution.
The essence of our federal Constitution is that it created a federal government of three branches, with each branch having checks on the other two branches. Furthermore, it delegated only specific, narrowly defined powers to each branch.
James Madison writes in Federalist No. 45 (3rd para from end) of the “few and defined” powers delegated to the federal government:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]
What We have lost is the knowledge that Our Constitution delegated only “few and defined” – enumerated – powers to each branch of the federal government. For complete lists and explanations of the powers our Constitution delegated to each branch, see:
♣Congress’ enumerated powers [Art. I, Sec. 8, cl. 1-16 is not the complete list]
Any American of common sense and ordinary understanding is capable of fully understanding the scope of the powers delegated by our Constitution to Congress and to the President. 6
This is one of the keys to Restoration of our Constitutional Republic.
The BOPA contains a number of other statements which are confused and erroneous.
Our Framers were exquisitely educated in Logic, Judeo-Christian values, political philosophy, and statecraft. The American People of our Founding Era had the Wisdom and Humility to listen to our Framers.
Let us once again show that same Wisdom and Humility. Listen to Our Framers.
1 The BOPA is the product of The Constitutional Justice Division of the North American law Center. As grand as those titles do sound, the BOPA does not reflect the light cast by minds schooled in law or statecraft. Furthermore, the writing is confused and some of the sentences undiagrammable.
2 Throughout our Constitution, the “federal government” is referred to as “the United States”.
3 Parties to compacts have mutual rights and obligations. The federal government has no “rights” – it has only those few delegated powers WE enumerated in the Constitution. The People pre-existed the Constitution. The States pre-existed the Constitution. Since the federal government didn’t exist until the Constitution was ratified, it can’t be a “party” to it! It is impossible to understand our Constitution unless one understands that the federal government is merely a “creature” of the Constitution – and as such, is completely subject to its terms.
4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance?
5 The progressives say the general welfare clause gives Congress power to pass any law they say promotes the “general welfare”.
James Madison refutes that misconstruction in Federalist No. 41 (last 4 paras). See also: Does the general welfare clause of the U.S. Constitution authorize Congress to force us to buy health insurance?
The BOPA’s erroneous assertion that the clause means that laws passed by Congress must “serve all citizens well and equally”, could easily morph into the perversion that Congress may do whatever it likes as long as its laws are fair to all races, creeds, and classes.
But the constitutional standard is that acts of Congress must fall within the scope of the enumerated powers delegated to Congress. We must not blur that clear line with our own fabricated feel-good theories. READ the last 4 paras of Federalist No. 41!
6 Some knowledge of law and litigation is necessary to fully understand the enumerated powers of the federal courts. But if our People would make the modest effort necessary to learn the enumerated powers of Congress and the President, they would become
“a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No. 16 [Hamilton] next to last para)
Then they would be able to distinguish between constitutional and unconstitutional acts of Congress and the Executive Branch. PH
March 25, 2013
By Publius Huldah
This is The Age of Ignorance. Our “intellectuals” can’t think. Our “scholars” parrot each other. The self-educated fixate on idiotic theories. Our People despise Truth and disseminate lies.
Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy Barnett, David Barton of Wallbuilders, and history professor Allen C. Guelzo, say that nullification by States of unconstitutional acts of the federal government is unlawful and impossible. They make the demonstrably false assertions that:
♦ States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it;
♦ Nullification is literally impossible;
♦ The supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; and
♦ James Madison, Father of Our Constitution, opposed nullification.
Their assertions contradict our Declaration of Independence, The Federalist Papers, our federal Constitution, and what James Madison, Thomas Jefferson, and Alexander Hamilton really said.
What are the Two Conditions Precedent for Nullification?
The deniers seem unaware of the two conditions our Framers saw must be present before nullification is proper and possible. These conditions are important – you will see why!:
♦ The act of the federal government must be unconstitutional – usually a usurpation of a power not delegated to the federal government in the Constitution; and
♦ The act must be something The States or The People can “nullify”- i.e., refuse to obey: the act must order them to do something or not do something.
What is “Interposition” and What is “Nullification”?
A State “interposes” when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition 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.” [emphasis mine]
“Nullification” is one form of interposition.
Here are three highly relevant illustrations:
♠ When the act of the federal government is unconstitutional and orders The States or The People to do – or not do – something, nullification is the proper form of interposition.
♠ When the act of the federal government is unconstitutional, but doesn’t order The States or The People to do – or not do – something (the alien & sedition acts), nullification is not possible. The States may interpose by objecting, as in The Virginia & Kentucky Resolutions of 1798.
♠ When the act of the federal government is constitutional, but unjust (the Tariff Act of 1828), the States may not nullify it; but may interpose by objecting and trying to get the Tariff Act changed.
Our Founding Principles in a Nutshell
In order to understand The Right of Nullification, one must also learn the Founding Principles set forth in The Declaration of Independence (2nd para). Then one can see that “when powers are assumed which have not been delegated, a nullification of the act” 1 is “the natural right, which all admit to be a remedy against insupportable oppression.” 2 These Principles are:
1. Rights come from God;
2. People create governments;
3. The purpose of government is to secure the rights God gave us; and
4. When a government We created seeks to take away our God given rights, We have the Right – We have the Duty – to alter, abolish, or throw off such government.
Let us look briefly at these Principles:
1. Our Declaration of Independence (2nd para) recognizes that God is the grantor of Rights. So Rights don’t come from the Constitution, the supreme Court or the federal government.
2. The Preamble to our Constitution shows that WE THE PEOPLE created the federal government. It is our “creature”. Alexander Hamilton says this in Federalist Paper No. 33 (5th para); and Thomas Jefferson, in his draft of The Kentucky Resolutions of 1798 (8th Resolution). As our “creature”, it may lawfully do only what WE authorized it to do in our Constitution.
We created a “federal” government: An alliance of Sovereign States 3 associated in a “federation” with a national government to which is delegated supremacy over the States in few and defined areas only. James Madison says in Federalist No. 45 (9th para):
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which … concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]
Do you see? We delegated only “few and defined” powers to the federal government. These are the “enumerated powers” listed in the Constitution. 4
These enumerated powers concern:
♦ Military defense, international commerce & relations;
♦ Control of immigration and naturalization of new citizens;
♦ Creation of a uniform commercial system: Weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
♦ With some of the Amendments, protect certain civil rights and voting rights (for blacks, women, citizens who don’t pay taxes, and citizens 18 years and older).
It is only with respect to the “enumerated powers” that the federal government has lawful authority over the Country at large!!! All other powers are “reserved to the several States” and The People.
3. Our Constitution authorizes the federal government to secure our God-given Rights in the following ways: 5
It is to secure our rights to life and liberty by:
♦ Military defense (Art. I, Sec. 8, cl. 11-16);
♦ Laws against piracy and other felonies committed on the high seas (Art. I, Sec. 8, cl. 10);
♦ Protecting us from invasion (Art IV, Sec. 4);
♦ Prosecuting traitors (Art III, Sec. 3); and
♦ Restrictive immigration policies (Art. I, Sec. 9, cl. 1).
It is to secure our property rights by:
♦ Regulating trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are transported thru the States for buying & selling.
♦ Establishing uniform weights & measures and a money system based on gold & silver (Art I, Sec. 8, cl. 5) – inflation via paper currency & fractional reserve lending is theft!
♦ Punishing counterfeiters (Art I, Sec. 8, cl. 6);
♦ Making bankruptcy laws to permit the orderly dissolution or reorganization of debtors’ estates with fair treatment of creditors (Art I, Sec 8, cl. 4); and
♦ Issuing patents & copyrights to protect ownership of intellectual labors (Art I, Sec 8, cl 8).
It is to secure our right to liberty by:
♦ Laws against slavery (13th Amendment);
♦ Providing fair trials in federal courts (4th, 5th, 6th, 7th, and 8th Amendments); and
♦ Obeying the Constitution!
This is how our federal Constitution implements The Founding Principle that the purpose of government is to secure the rights God gave us!
4. The fourth Founding Principle in our Declaration is this: When government takes away our God given rights, We have the Right & the Duty to alter, abolish, or throw off such government. Nullification is thus a natural right of self-defense:
Thomas Jefferson said:
“… but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” 6 [boldface mine]
James Madison commented on the above:
“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” 7
Alexander Hamilton says in Federalist No. 28 (5th para from end):
“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [boldface mine]
Hamilton then shows how The States can rein in a usurping federal government:
“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…”
Do you see?
But the nullification deniers do not see because, in addition to their apparent unfamiliarity with the original source writings on nullification (as well as The Federalist Papers), they reject, or do not understand, the Founding Principle that Rights pre-date & pre-exist the Constitution and come from God. Nullification is not a paltry “constitutional right”! It has a hallowed status – it is that natural right of self-defense which pre-dates & pre-exists the Constitution.
Now, let us look at the false assertions made by the nullification deniers.
False Assertion 1:
That States can’t nullify unconstitutional acts of the federal government because the Constitution doesn’t say they can do it.
♣ As we have just seen, Jefferson, Madison, and Hamilton saw nullification of unconstitutional acts of the federal government as a “natural right” – not a “constitutional right”. And since Rights come from God, there is no such thing as a “constitutional right”!
♣ The Right of Nullification, transcending as it does, the Constitution; and being nowhere prohibited by the Constitution to the States, is a reserved power. The 10th Amendment says:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Nothing in the federal Constitution prohibits The States from nullifying unconstitutional acts of the federal government. Thus, nullification is a reserved power of the States & The People.
♣ We saw where Madison says in Federalist No. 45 that the powers delegated to the federal government are “few and defined”, and all other powers are “reserved to the several States”.
Thus, it is the federal government which is supposed to look to the Constitution for the list of “enumerated powers” We The People delegated to it.
The States don’t go to the Constitution to look for permission because they retain all powers they didn’t exclusively 8 delegate to the federal government, or prohibit by Art. I, Sec. 10.
The nullification deniers have it backwards: They permit the federal government to ignore the “enumerated powers” limitations set forth in the Constitution; but insist The States can’t do anything unless the Constitution specifically says they can!
Do you see how they pervert Our Constitution?
False Assertion 2:
That Nullification is literally impossible.
We saw above the two conditions which must exist before nullification is proper and possible:
♦ The act of the federal government must be unconstitutional, and
♦ The act must be something The People or The States can refuse to obey.
Here are examples of unconstitutional federal acts the States can and should nullify:
The Constitution does not delegate to the federal government power to ban Christianity from the public square. But in 1962, the supreme Court first ordered The States to stop prayers in the public schools. That Court next banned the Ten Commandments from the public schools. Since those orders were usurpations of powers not lawfully possessed by the Court,the States should have nullified them by directing their School Boards to ignore them.
If Congress by “law”, or the President by “executive order”, orders The People to turn in our guns, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. So, The States and The People must nullify such law or order by refusing to obey.
The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using non-violent civil disobedience, MLK led black people to refuse to obey these unjust and unconstitutional (Sec. 1, 14th Amdt.) laws. This was nullification by brave Citizens!
Now, I’ll show you unconstitutional acts which couldn’t be nullified because they weren’t directed to anything The States or The People could refuse to obey:
In 1798, Thomas Jefferson wrote The Kentucky Resolutions, and James Madison wrote The Virginia Resolutions. These Resolutions objected to laws made by Congress which purported to grant to the President dictatorial powers over aliens and seditious words.
Kentucky and Virginia could object, but they couldn’t prevent the President from enforcing the alien & sedition acts, because the President had the raw power to send out thugs to arrest aliens or people who had spoken or written “seditious” words; and then to persecute them.
So Jefferson and Madison showed why the alien & sedition acts were unconstitutional, protested them, and asked other States to join the protest.
Now! Note Well: Randy Barnett, law professor, and other deniers crow that the Virginia and Kentucky Resolutions prove there is no “literal power” of nullification in the States.
But Barnett should know better because he is a lawyer. Every litigation attorney knows this: At a motion hearing before the judge, opposing counsel whips out a court opinion which he cites as authority for a legal point. He gives the judge a highlighted copy and gives you (opposing counsel) an un-highlighted copy. While he is making his argument to the judge, you must listen to what he is saying, and at the same time, read the opinion and develop an argument which “distinguishes” the opinion opposing counsel is using from the case at bar. When opposing counsel finishes, the judge looks at you and says, “And how do you respond?” You must be ready with your argument right then.
Are we to believe that Randy Barnett, law professor, sitting in his ivory tower and under no pressure, is unable to distinguish between situations where a State does have a “literal power” to nullify an unconstitutional act of the federal government [when it orders The State or The People to do -or not do - something]; and when The State does not have a “literal power” to nullify the act [because, as with the alien & sedition acts, it does not dictate something The States or The People can refuse to obey]?
False Assertion 3:
That the supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says.
The federal government has become a tyranny which acts without constitutional authority.
This came about because we were lured away from The Founding Principle that the purpose of government is to secure the Rights God gave us; and were seduced into believing government should provide for our needs and protect us from the challenges of Life.
Progressives of the early 1900s 9 transformed the federal government into the Frankensteinian monster it is today. They imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.
The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.
Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government. In other words, the Progressives gave the federal government a blank check to fill out anyway they want. People in the federal government now claim power to do whatever they want to us.
The federal government imposed by the Progressives is evil:
♦ In order to provide benefits to some; the federal government violates the God-given property rights of others. The federal government robs Peter to pay Paul.
♦ In order to protect us from the challenges of life (including made up problems such as “global warming” and “lack of medical insurance”), the federal government violates everyone’s God-given rights to Liberty.
And thus today, the federal government:
♦ Usurps powers not delegated to it in the Constitution. Most of what it does is unconstitutional as outside the enumerated powers delegated in our Constitution.
♦ Has become an instrument of oppression, injustice, and immorality.
♦ Has taken away most of our God given rights, and is now conniving to take away our God given right to self-defense.
Now you know how the federal government was transformed from being the securer of our God given rights to a tyranny which oppresses some of the people for the benefit of others; and takes everyone’s Liberty away – except for those in the ruling class.
So! What do We do? What can We do?
The nullification deniers insist We must obey whatever Congress and the President dictate unless five (5) judges on the supreme Court say We don’t have to. They say the supreme Court is the final authority on what is constitutional and what is not.
But think: Who created the federal government?
We did! It is our “creature”. Is the “creature” to dictate to the “creator”?
The nullification deniers say, “Yes!” They say that:
♦ Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and
♦ Every executive order issued by the President [the Executive Branch of the federal government] is binding; and
♦ The States and The People must obey, unless and until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law or executive order is unconstitutional.
In other words, only the federal government may question the federal government!
Under their vision, the federal government WE created with the Constitution is the exclusive and final judge of the extent of the powers WE delegated to it; and the opinion of five (5) judges, not the Constitution, is the sole measure of its powers.
Jarrett Stepman regurgitates the statist lie that “the ultimate decision maker in terms of America’s political system is the Supreme Court.”
Randy Barnett, law professor, chants the statist refrain, “…What has the Supreme Court said and meant? and … Are there now five justices to sustain the claim?”.
Barnett selects two paragraphs from Madison’s Report on the Virginia Resolutions (1799-1800), (which address the alien & sedition acts), and claims they show Madison “expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states”.
Well, We saw above that States couldn’t nullify the alien & sedition acts because they purported to grant dictatorial powers to the President; and did not require The States or The People to do – or not do – something.
And the two paragraphs Barnett claims are so “telling” as to The States’ lack of “literal power” to nullify anything, and as to the ultimate authority of the Judicial Branch, appear under Madison’s discussion of the last two Resolutions where Virginia had asked other States to join the protest. Madison merely says the citizens and legislature of Virginia have the right to communicate with other States; and in so doing, they are not exercising a judicial function.
Now! Note Well: Madison actually says, in the same Report Barnett cites, that it is “a plain principle, founded in common sense” that The States are the final authority on whether the federal government has violated our Constitution! Under his discussion of the 3rd Resolution, Madison says:
“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.” [emphasis mine]
A bit further down, Madison explains that if, when the federal government usurps power, the States cannot act so as to stop the usurpation, and thereby preserve the Constitution as well as the safety of The States; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding:
“…If the deliberate exercise, of dangerous power, 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.” [emphasis mine]
A bit further down, Madison answers the objection “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort”.
Madison explains that when the federal government acts outside the Constitution by usurping powers, and when the Constitution affords no remedy to that usurpation; then the Sovereign States who are the Parties to the Constitution must likewise step outside the Constitution and appeal to that original natural right of self-defense.
Madison also says that the Judicial Branch is as likely to usurp as are the other two Branches. Thus, The Sovereign States, as The Parties to the Constitution, have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches:
“…the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the judiciary as well as by the executive, or the legislature.”
Madison goes on to say that all three Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of their Creator. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. So the Judicial Branch does not have final say as
“…to the rights of the parties to the constitutional compact, from which the judicial as well as the other department hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; 10 and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.”
Shame on you nullification deniers who misrepresent what Madison said, or ignorantly insist that Madison said the Judicial Branch is the Final Authority!
False Assertion 4:
That James Madison opposed Nullification by States of Unconstitutional Acts of the Federal Government.
What Spalding and Barton say is not true. Did they read what Madison wrote on S. Carolina’s doctrine of nullification? Are they so lacking in critical thinking skills that they can’t make the distinction between the nullification doctrine Madison (and Jefferson & Hamilton) embraced, and the peculiar doctrine of nullification advanced by S. Carolina?
We saw in Madison’s Report on the Virginia Resolutions (1799-1800) that in a proper case, “interposing even so far as to arrest the progress of the evil” is essential “to preserve the Constitution itself as well as to provide for the safety of the parties to it”.
And we saw above that the condition which must be present before nullification is proper, is that the act of the federal government must be unconstitutional.
Now, let’s look at The Tariff Act of 1828 and the S. Carolina Nullification Crisis:
South Carolina was an agricultural state. During the 1820’s, they bought manufactured goods from England. England bought cotton produced by S. Carolina and other Southern States.
However, “infant industries” in the Northeast were producing some of the same manufactured goods as England; but they were more expensive than the English imports. So they couldn’t compete with the cheaper imports.
So! In 1828, Congress imposed a high tariff on the English imports. The Southern States called this the “tariff of abominations”, because the tariff made the English goods too expensive to buy; and since the Southern States stopped buying English goods, the English stopped buying Southern cotton. The Southern States had to pay more for manufactured goods, they lost the major buyer of their cotton; and their economy was weakened.
Now! Note Well: Our Constitution delegates specific authority to Congress to impose tariffs on imports, and the tariff must be the same in each State (Art. I, Sec. 8, cl. 1).
Thus, the Tariff Act of 1828 was constitutional! 11
So! Can you, dear Reader, see something which Matthew Spalding, Ph.D., and David Barton are unable to see? South Carolina wanted to nullify a constitutional law! Of course, Madison opposed S. Carolina’s peculiar doctrine of nullification! Madison (and Jefferson & Hamilton) always said the act nullified must be unconstitutional!
In his Notes on Nullification (1834), 12 Madison addressed S. Carolina’s peculiar doctrine. He said that in the Report of a special committee of the House of Representatives of South Carolina in 1828, a doctrine of nullification was set forth which asserted that:
♦ A State has a “constitutional right” to nullify any federal law; and
♦ The nullification is presumed valid, and is to remain in force, unless ¾ of the States, in a Convention, say the nullification isn’t valid.
What Madison opposed was the particular doctrine of nullification set forth by S. Carolina; and what Madison actually said about the S. Carolina doctrine is this:
♦ The federal government has delegated authority to impose import tariffs;
♦ The Constitution requires that all import tariffs be uniform throughout the United States;
♦ States can’t nullify tariffs which are authorized by the Constitution;
♦ ¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government;
♦ Nullification is not a “constitutional right”;
And near the end of his Notes, Madison quoted with approval Thomas Jefferson’s statement:
“…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” [boldface mine]
Madison then says:
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]
Do you see? Madison is saying that:
♦ S. Carolina couldn’t nullify the Tariff Act of 1828 because the Act was constitutional.
♦ Nullification is a “natural right”- it is not a “constitutional” right. Rights don’t come from the Constitution.
♦ All agree that when the federal government acts outside of the Constitution, nullification by the States is the proper remedy.
When WE THE PEOPLE ratified our Constitution, and thereby created the federal government, WE did not delegate to our “creature” power to control our medical care, restrict guns and ammunition, dictate what is done in the public schools, dictate how we use our lands, and all the thousands of things they do WE never gave them authority in our Constitution to do.
Accordingly, each State has a natural right to nullify these unconstitutional dictates within its borders. These dictates are outside the compact The Sovereign States made with each other –WE never gave our “creature” power over these objects.
As Jefferson and Madison said, without Nullification, The States and The People would be under the absolute and unlimited control of the federal government.
And that, dear Reader, is where these nullification deniers, with their false assertions and shameful misrepresentations, would put you.
To sum this up:
♦ Nullification is a natural right of self-defense.
♦ Rights don’t come from the Constitution. Like all Rights, the right of self-defense comes from God (The Declaration of Independence, 2nd para).
♦ Nullification is a reserved power within the meaning of the 10th Amendment. The Constitution doesn’t prohibit States from nullifying, and We reserved the power to do it.
♦ God requires us to disobey civil authorities when they violate God’s Law. That’s why the 2nd para of the Declaration of Independence says we have the duty to overthrow tyrannical government. See: The Biblical Foundation of our Constitution.
♦ Nullification is required by Oath of Office: Article VI, cl. 3 requires all State officers and judges to “support” the federal Constitution. Therefore, when the federal government violates the Constitution, the States must smack them down.
Our Founders and Framers were a different People than we of today. They were manly men who knew statecraft & political philosophy and could think. But our “experts” of today have been indoctrinated with statism and can’t think. They just repeat what they hear. We need them to man up, throw off the indoctrination, learn our Founding Documents including The Federalist Papers, get a Logic Book, and stop disseminating misinformation! We need them to repudiate cowardice as the proper response to the evil which is overtaking our Land. Man up, People! PH
1 Thomas Jefferson, The Kentucky Resolutions of 1798, 8th Resolution.
2 James Madison, Notes on Nullification (1834). The quote is near the end. Use “find” function.
3 The deniers seem unaware that The States retained sovereignty in all matters not exclusively delegated to the federal government. Alexander Hamilton says in Federalist No. 32 (2nd para):
“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not … EXCLUSIVELY delegated to the United States…” [caps are Hamilton's; boldface mine]
Federalist No. 62 (5th para):
“…the equal vote allowed to each State [each State gets two U.S. Senators] is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic.” (Madison or Hamilton) [boldface mine]
See also Federalist No. 39 (Madison) (6th para, et seq.)
In Madison’s Report on The Virginia Resolutions (1799-1800), he several times refers, in his discussion of the 3rd Resolution, to the States acting “in their sovereign capacity” when, as “the parties to the constitutional compact” they decide “in the last resort, whether the compact made by them be violated”:
“…The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition….” [boldface mine]
4 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects…” (Federalist No. 39, 3rd para from end) (Madison) [boldface mine]
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para) (Madison) [boldface mine]
“…It merits particular attention … that the laws of the Confederacy [Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [caps are Hamilton’s] (Federalist No. 27, last para)
5 Our Constitution authorizes the federal government to secure our God-given rights in the ways appropriate for the national government of a Federation. The States secure them in other ways.
6 The Kentucky Resolutions of 1798,8th Resolution.
7 Madison’s Notes on Nullification (1834). The quote is near the end. Use “find” function.
8 This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent jurisdiction”.
9 Teddy Roosevelt ran on the Progressive Platform of 1912. Both major parties have been dominated by progressives ever since.
10 Hamilton says, respecting the Legislative Branch (Federalist No. 78, 10th para):
“…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]
11 The Tariff Act of 1828 was constitutional; but benefited the Northeast at the expense of the South. It thus violated our Founding Principle that governments exist to secure the rights God gave us. God never gave us the right to be free of competition in business! Since the tariff was constitutional, but unjust, the remedy was to get Congress to fix it.
12 Madison’s Notes on Nullification (1834) are long & rambling. Copy to Word, enlarge the type, & color-code to sort out the strands of arguments. Keep in mind that what Madison is addressing is S. Carolina’s peculiar doctrine where they wanted to nullify a constitutional tariff! PH
January 31, 2013
By Publius Huldah
The latest round of rubbish flooding our in boxes is an ignorant rant claiming that the Dick Act of 1902 (which respects our Right to be armed) can’t be repealed because to do so would “violate bills of attainder and ex post facto laws”.
Who dreams up this stuff? Does anyone check it out before they spread it around?
Of course we have the God-given right to keep and bear arms, to self-defense, etc., etc. Our Declaration of Independence (2nd para) recognizes that our Rights come from God and are unalienable.
The 2nd Amendment to our federal Constitution recognizes that this God-given right to keep and bear arms is to be free from any interference WHATSOEVER from the federal government.
Our Framers were all for an armed American People – they understood that arms are our ultimate defense in the event the federal government oversteps its bounds. See, e.g., what James Madison, Father of Our Constitution, writes in the second half of Federalist Paper No. 46! The reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.
Accordingly, the federal government is nowhere in the Constitution granted authority to abridge, restrict, or infringe, in any fashion whatsoever, guns, ammunition, etc. Thus, ALL such restrictive laws made by Congress, and ALL regulations made by the Bureau of Alcohol, Firearms, and Tobacco (ATF), are unconstitutional as outside the scope of the powers granted to Congress and to the Executive Branch by our Constitution. Restriction of arms and ammunition is NOT one of the “enumerated powers” delegated to Congress or the Executive Branch.
Furthermore, all pretended regulations made by the ATF are also unconstitutional as in violation of Art. I, Sec. 1, U.S. Constitution, which vests ALL legislative powers granted by the Constitution in CONGRESS. Executive agencies have no lawful authority whatsoever to make rules or regulations of general application to The People!
In addition, the President and the Senate may not lawfully by treaty do anything the Constitution does not authorize them to do directly. Since the Constitution does not authorize the federal government to disarm us, the federal government may not lawfully do it by Treaty. See, http://publiushuldah.wordpress.com/2009/09/19/the-treaty-making-power-of-the-united-states/
But the assertion that one Congress may not repeal acts of a previous Congress is idiotic.
And the assertion that Congress can’t repeal the Dick Act because a repeal would “violate bills of attainder and ex post facto laws” shows that whoever wrote that doesn’t know what he is talking about. He obviously has no idea what a “bill of attainder” is, and no idea what an “ex post facto law” is.
This accurately explains what a “bill of attainder” is: http://www.historylearningsite.co.uk/Bill-of-Attainder.htm
An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.
Say you barbequed outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbequing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.
Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”. That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.
Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.
It would also be unconstitutional as in violation of the 2nd Amendment.
But it would not be an ex post facto law.
People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.
If TRUTH spread as rapidly as lies, our problems would have been resolved long ago. But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH
In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):
“…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” PH
Posted January 19, 2013; revised Jan 21, 2013
By Publius Huldah
According to an article posted by Lesley Swann of the Tennessee Tenth Amendment Center, the federal obamacare Act doesn’t actually require The People to submit to obamacare.1
Accordingly, HHS Secretary Kathleen Sibelius is demanding that The States set up State Insurance Exchanges, by means of which The States will force The People into obamacare.
While 20 States have already given notice that they will not implement obamacare by setting up the State Exchanges; Tennessee’s RINO Governor, Bill Haslam, is “undecided” as to whether he will force Tennesseans to submit to obamacare.
But Haslam has no lawful authority to force The People of Tennessee into State Exchanges. If he does it anyway, he will commit the following five (5) violations of Tennessee Law:
1. The Tennessee Health Freedom Act
The Tennessee Legislature enacted in 2011 the Tennessee Health Freedom Act, codified at Tenn. Code Ann. Sec. 56-7-1016. 2
Under this Act, no public official, employee, or agent of Tennessee may force The People of Tennessee to purchase health insurance or impose any penalty for not purchasing such insurance.
So if Haslam attempts to force The People of Tennessee to participate in a State Insurance Exchange, he will violate the Tennessee Health Freedom Act.
2. The State Legislature makes the Laws – not the Governor
The Constitution of the State of Tennessee says at Article II:
“Section 1: The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.
Section 2: No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted. [boldface mine]
Section 3: The legislative authority of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives….”
If Haslam attempts to force Tennesseans into a State Insurance Exchange, he will violate the Separation of Powers Principle enshrined at Art. II, Sections 1 – 3.
3. The Governor’s Powers are Enumerated, Defined, and Strictly Limited.
Here is a complete list of the enumerated powers and duties of the Governor of Tennessee. Article III provides that:
Section 1: The executive power of the state is vested in a governor [See Sec. 10 below].
Section 5: The governor is commander-in-chief of the State Militia
Section 6: The governor may grant reprieves and pardons.
Section 8: The governor may require written information from officers in the executive department, about their duties.
Section 9: The governor may, on extraordinary occasions, convene the General Assembly.
Section 10: The governor shall take care that the laws be faithfully executed.
Section 11: The governor is to give the Legislature information on the state of the government, and recommend matters for their consideration.
Section 14: The governor may temporarily fill vacancies in office.
Section 15: The governor is to be keeper of the Seal of the State of Tennessee.
Section 16: The governor is to sign and seal all grants and commissions of the State.
Section 18: The governor is to sign, or veto, or allow to become law without his signature, every Bill, Joint Resolution or Order passed by the Legislature. He may reduce or disapprove sums of money appropriated for specific items.
Article VI, Section 11: When any judge of the State Supreme Court is disqualified from presiding over a case, the governor is to specially commission another person to serve as judge on that case.
Article VIII, Section 2: The governor is to appoint certain officers of the State Militia.
That’s it! That’s all the governor of the State of Tennessee has lawful authority to do. He has no lawful authority to make laws. He has no lawful authority to force Tennesseans into a Health Insurance Exchange. If Haslam attempts to do this anyway, he will usurp powers not delegated to him by the Tennessee Constitution.
4. The Governor’s Duty is to Enforce the Laws the Legislature Makes!
Note that Art. III, Sec. 10 requires the governor to “take care that the laws be faithfully executed”. As long as the laws made by the Legislature are constitutional, the governor is obligated to enforce them! This means that Haslam must refuse to implement the State Exchange. If he doesn’t refuse to implement the State Exchange, he will be guilty of dereliction of his Constitutional Duty.
5. The Governor is Required by his Oath to Obey the Tennessee Constitution
Article X, Section 1, of the Tennessee Constitution requires the governor to take an Oath to support the Tennessee Constitution.
If he takes his orders from Kathleen Sibelius instead of from the Tennessee Constitution and the Tennessee Legislature, he will violate his Oath to support the State Constitution.
Article X, Sec. 1 of the Tennessee Constitution, and Art. VI, clause 3 of the federal Constitution, also require Haslam to support the federal Constitution. Obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress. This is plain and clearly proven. 3 Thus, Haslam is required by Oath to refuse to enforce obamacare because obamacare is unconstitutional.
If Haslam Violates the State Constitution and State Law, he must be Impeached and Removed.
Article V, Sec. 4 of the Tennessee Constitution provides that the governor shall be liable to impeachment whenever, in the opinion of the Tennessee House of Representatives, he commits any crime in his official capacity which requires disqualification.
“1. An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws. A crime may consist in omission or neglect, as well as in commission, or positive transgression…”
Any governor who ignores the State Constitution, ignores State law, violates his Oath of Office, and usurps power must be removed from office. 4
1I haven’t read the obamacare Act. It is over 2000 pages long, and is being implemented right now by thousands of more pages of HHS & IRS Rules. Our Framers warned us of laws which were
“… so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow…”(Federalist Paper No. 62, 4th para from end)
2 The hyperlinks at lexus nexus don’t work. To find the text of the Tennessee Health Freedom Act, click on http://www.lexisnexis.com/hottopics/tncode/ then type in the search term, “Tennessee Health Freedom Act”, jump thru the hoops, and you will find the Act. It is short and worth reading.
3 See, e.g. these model Nullification Resolutions for obamacare
4 Impeachment and removal from office for usurpations of power is expressly authorized by our federal Constitution: See, as to removing a President who usurps power: Federalist Paper No. 66, 2nd para, and No. 77, last para. As to removing federal judges who usurp power, see Federalist Paper No. 81, 8th
December 12, 2012
By Publius Huldah.
We have been visited recently with several very silly articles which assert that Marco Rubio is a “natural born Citizen” within the meaning of Art. II, §1, cl. 5, U.S. Constitution (ratified 1789), and hence is qualified to be President:
Bret Baier (Fox News) asserts that Congress may define (and presumably redefine, from time to time) terms in the Constitution by means of law.
Chet Arthur in American Thinker quips that “the original meaning of ‘natural born citizen’” is determined by reference to “The Heritage Guide to the Constitution” and to the definition of “citizen” at Sec. 1 of the 14th Amendment, ratified 1868.
Human Events claims that anyone born within The United States is a “natural born citizen” eligible to be President.
Jake Walker at Red State purports to show how the term has been used from 1795 to the present. After quoting James Madison on the citizenship requirements imposed by Art. I, §2, cl. 2, to be a member of the House, Walker gleefully quotes a 1795 discussion of “natural born subject” to “prove” that anyone born here is a “natural born citizen”:
“It is an established maxim, received by all political writers, that every person owes a natural allegiance to the government of that country in which he is born. Allegiance is defined to be a tie, that binds the subject to the state, and in consequence of his obedience, he is entitled to protection…” [emphasis mine]
“The children of aliens, born in this state, are considered as natural born subjects, and have the same rights with the rest of the citizens.” [emphasis mine]
But “subjects” are not “citizens”; and we fought a war so that we could be transformed from “subjects of the British Crown” to Citizens of a Republic!
The four writers don’t know what they are talking about. But I will tell you the Truth and prove it. We first address Word Definitions.
Like clouds, word meanings change throughout time. “Awful” once meant “full of wonder and reverence”; “cute” meant “bowlegged”; “gay” meant “jovial”; and “nice” meant “precise”.
Accordingly, if someone from an earlier time wrote of a “cute gay man”, he was not referring to an adorable homosexual, but to a cheerful bowlegged man.
So! In order to understand the genuine meaning of a text, we must use the definitions the authors used when they wrote it. Otherwise, written texts become as shifting and impermanent as the clouds – blown hither and yon throughout the years by those who unthinkingly read in their own uninformed understandings, or deliberately pervert the text to further their own agenda.
So! Is Our Constitution built on the Rock of Fixed Definitions – those our Framers used? Or are its Words mere clouds to be blown about by Acts of Congress, whims of federal judges, and the idiotic notions of every ignoramus who writes about it?
What Did Our Framers mean by “natural born Citizen”?
Article II, §1, cl. 5, U.S. Constitution, requires the President to be a “natural born Citizen”.
The meaning of this term is not set forth in The Constitution or in The Federalist Papers; and I found no discussion of the meaning in Madison’s Journal of the Federal Convention or in Alexander Hamilton’s notes of the same.
What does this tell us? That they all knew what it meant. We don’t go around defining “pizza”, because every American over the age of four knows what a pizza is.
Our Framers had no need to define “natural born Citizen” in the Constitution, because by the time of the Federal Convention of 1787, a formal definition of the term consistent with the new republican principles1 already existed in Emer Vattel’s classic, Law of Nations.
And we know that our Framers carefully studied and relied upon Vattel’s work. I’ll prove it.
How Vattel’s Law of Nations got to the Colonies, and its Influence Here:
During 1775, Charles Dumas, an ardent republican [as opposed to a monarchist] living in Europe sent three copies of Vattel’s Law of Nations to Benjamin Franklin. Here is a portion of Franklin’s letter of Dec. 9, 1775 thanking Dumas for the books:
“… I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations. Accordingly that copy, which I kept, (after depositing one in our own public library here, and sending the other to the College of Massachusetts Bay, as you directed,) has been continually in the hands of the members of our Congress, now sitting, who are much pleased with your notes and preface, and have entertained a high and just esteem for their author…” (2nd para) [boldface added]
Vattel’s Law of Nations was thereafter “pounced upon by studious members of Congress, groping their way without the light of precedents.”
Years later, Albert de Lapradelle wrote an introduction to the 1916 ed. of Law of Nations published by the Carnegie Endowment.2 Lapradelle said the fathers of independence “were in accord with the ideas of Vattel”; they found in Vattel “all their maxims of political liberty”; and:
“From 1776 to 1783, the more the United States progressed, the greater became Vattel’s influence. In 1780 his Law of Nations was a classic, a text book in the universities.”(page xxx) [emphasis added]
In footnote 1 on the same page (xxx), Lapradelle writes:
“… Another copy was presented by Franklin to the Library Company of Philadelphia. Among the records of its Directors is the following minute: “Oct. 10, 1775. Monsieur Dumas having presented the Library with a very late edition of Vattel’s Law of Nature and Nations (in French), the Board direct the secretary to return that gentle-man their thanks.” This copy undoubtedly was used by the members of the Second Continental Congress, which sat in Philadelphia; by the leading men who directed the policy of the United Colonies until the end of the war; and, later, by the men who sat in the Convention of 1787 and drew up the Constitution of the United States, for the library was located in Carpenters’ Hall, where the First Congress deliberated, and within a stone’s throw of the Colonial State House of Pennsylvania, where the Second Congress met, and likewise near where the Constitution was framed …” [emphasis added]
So! Vattel’s work was “continually in the hands” of Congress in 1775; Members of the Continental Congress “pounced” on Vattel’s work; our Founders used the republican Principles in Vattel’s work to justify our Revolution against a monarchy; by 1780, Vattel’s work was a “classic” taught in our universities; and our Framers used it at the Federal Convention of 1787. 3
Vattel on “natural born citizens”, “inhabitants”, and “naturalized citizens”:
From our beginning, we were subjects of the British Crown. With the War for Independence, we became citizens.1 [READ this footnote!] We needed new concepts to fit our new status as citizens. Vattel provided these new republican concepts of “citizenship”. The gist of what Vattel says in Law of Nations, Book I, Ch. XIX, at §§ 212-217, is this:
§ 212: Natural-born citizens are those born in the country of parents who are citizens – it is necessary that they be born of a father who is a citizen. If a person is born there of a foreigner, it will be only the place of his birth, and not his country.
§ 213: Inhabitants, as distinguished from citizens, are foreigners who are permitted to stay in the country. They are subject to the laws of the country while they reside in it. But they do not participate in all the rights of citizens – they enjoy only the advantages which the law or custom gives them. Their children follow the condition of their fathers – they too are inhabitants.
§ 214: A country may grant to a foreigner the quality of citizen – this is naturalization. In some countries, the sovereign cannot grant to a foreigner all the rights of citizens, such as that of holding public office – this is a regulation of the fundamental law. And in England, merely being born in the country naturalizes the children of a foreigner.
§§ 215, 216 & 217: Children born of citizens in a foreign country, at sea, or while overseas in the service of their country, are “citizens”. By the law of nature alone, children follow the condition of their fathers; the place of birth produces no change in this particular.
Do you see? The republican concept of “natural born citizenship” is radically different from the feudal notion of “natural born subjectship.” Under feudalism, merely being born in the domains of the King made one – by birth – a “natural born subject”. But in Vattel’s Model and Our Constitutional Republic, Citizens are “natural born” only if they are born of Citizens.
How Our Framers applied Vattel’s Concept of “natural born citizen” in Our Constitution:
The Federal Convention was in session from May 14, through September 17, 1787. John Jay, who had been a member of the Continental Congress [where they “pounced” on Vattel], sent this letter of July 25, 1787, to George Washington, who presided over the Convention:
“…Permit me to hint, whether it would not be wise & seasonable to provide a strong check to the admission of foreigners into the administration of our national government and to declare expressly that the Command in Chief of the american army shall not be given to, nor devolve on, any but a natural born Citizen…”4
According, Art. II, §1, cl. 5 was drafted to read:
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.” [boldface added]
In § 214, Vattel states that “fundamental law” may withhold from naturalized citizens some of the rights of citizens, such as holding public office. The Constitution is our “fundamental law”; and, following Vattel, Art. II, §1, cl. 5 withholds from naturalized citizens (except for our Founding Generation which was “grandfathered in”) the right to hold the office of President.5
Remember! None of our early Presidents were “natural born Citizens”, even though they were all born here. They were all born as subjects of the British Crown. They became naturalized citizens with the Declaration of Independence. That is why it was necessary to provide a grandfather clause for them. But after our Founding Generation was gone, their successors were required to be born as citizens of the United States – not merely born here (as were our Founders), but born as citizens.
And do not forget that the children born here of slaves did not become “citizens” by virtue of being born here. Their parents were slaves; hence (succeeding to the condition of their parents) they were born as slaves. Black people born here did not become citizens until 1868 and the ratification of the 14th Amendment.
So! Do you see? If Our Framers understood that merely being born here were sufficient to confer status as a “natural born citizen”; it would not have been necessary to grandfather in our first generation of Presidents; and all the slaves born here would have been “natural born citizens”. But they were born as non-citizen slaves, because their parents were non-citizen slaves.
David Ramsay’s 1789 Dissertation on Citizenship:
David Ramsay was an historian, Founding Father, and member of the Continental Congress [REMEMBER: This is where they “pounced” on Vattel], whose Dissertation On The Manner Of Acquiring The Character And Privileges Of A Citizen Of The United States was published in 1789, just after ratification of our Constitution and the Year the new Government began.
It is an interesting dissertation and only 8 pages long. At the bottom of his page 6, Ramsay states:
“The citizenship of no man could be previous to the declaration of independence, and, as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” [modernized spelling & emphasis are mine]
Do you see? Ramsay’s Dissertation sets forth the understanding of the Time, formally stated by Vattel and incorporated by our Framers, that a “natural born Citizen” is one who is born of citizens. And we had no “citizens” until July 4, 1776.
Now, let us look at the First Congress.
How the First Congress followed Vattel and our Framers:
Article I, §8, cl. 4 delegates to Congress the power “To establish an uniform Rule of Naturalization”.6 Pursuant to that power, the First Congress passed the Naturalization Act of 1790. Here is the text, which you can find at 1 Stat. at Large, 103:
“SECTION1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to support the constitution of the United States, which oath or affirmation such court shall administer; and the clerk of such court shall record such application, and the proceedings thereon; and thereupon such person shall be considered as a citizen of the United States. And the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States. And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States … APPROVED, March 26, 1790.” 7
So! This Act of the First Congress implements the Principles set forth in Vattel, embraced by our Framers, and enshrined in Art. II, §1, cl. 5, that:
- A “natural born Citizen” is one who is born of parents who are citizens.
- Minor children born here of aliens do not become citizens until their parents are naturalized. Thus, they are not “natural born” citizens.
Our Framers rejected the anti-republican and feudal notion that mere location of birth within a Country naturalizes the children of a foreigner. 8
The distinction written into Our Constitution and implemented by the Naturalization Act of 1790 is between someone who is born a citizen, by being born of parents who are already Citizens, and someone who becomes a citizen after birth by naturalization. Only the former are eligible to be President.
So! Original Intent? Or Whatever the People with the Power want it to Mean?
I have proved the original intent of “natural born Citizen” at Art. II, §1, cl. 5 – it is one who is born of parents who are citizens. We may not lawfully change that definition except by Amendment to the Constitution. Section 1 of the 14th Amendment does not change the definition because the 14th Amendment defines “citizens” of the United States (which includes naturalized citizens) and not “natural born Citizen”.
Some Democrats no longer pretend that the glib, handsome & black Obama (who, following the condition of his putative father, was born a subject of the British Crown) is “a natural born Citizen”. They now assert that the Democrat Party has the right to nominate whoever they choose to run for president, including someone who is not qualified for the office. [See pages 3 & 4 of the linked Court Order.]
The school-girlish Establishment Republicans who swoon over the glib, handsome & Hispanic Marco Rubio (who is not a “natural born Citizen”, but only a naturalized citizen) will ultimately destroy our sovereignity. Once we accept that our President need not be a “natural born Citizen”, we will have made a major step towards submission to global government. Because then, anybody can be President. PH.
1 Monarchies have subjects. Republics are formed by citizens. We broke from a monarchy under which we were subjects; and with our War for Independence, were transformed into citizens!
The common law of England recognizes only subjects of the Crown. England has never had citizens. Her feudal doctrine of “natural born subjects” is set forth in Book I, Ch. 10, of Blackstone’s Commentaries on the Laws of England (I modernized the spelling):
“THE first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the … allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie … which binds the subject to the king …” [emphasis mine]
Under feudalism, people are possessions who belong to the Land in which they were born. So they are “naturally” subject to whoever owns the Land. They were born as subjects to the owner of the land [ultimately, the King] on which they were born.
With our War for Independence, We repudiated the notion of natural born subjects. As Citizens, We ordained and established Our Constitution wherein We created a federal government which was subject to us!
Jake Walker doesn’t seem to know the difference between being “a subject of a King” and “a citizen of a Republic”, as he equates the feudal concept of “natural born subject” with the Republican concept of “natural born Citizen”.
Chet Arthur and Human Events tell us the “original intent” of “natural born Citizen” at Art. II, §1, cl. 5 is given by an Amendment defining “citizen” [not “natural born citizen”] ratified 80 years later!
And Bret Baier seems unaware that the methods for amending the Constitution are set forth in Article V; and that Congress may not amend the Constitution by making a law which redefines terms set forth in the Constitution!
These four amateurs would do well to study Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny, by Professor Edward J. Erler. Erler addresses the distinctions between “citizenship” and “subjectship”; and the concept of “citizenship” at §1 of the 14th Amendment. He proves that not everyone born here is a “citizen”: Only those whose parents are “subject to the jurisdiction of the US” are citizens. Illegal aliens are not “subject to the jurisdiction of the US” – they are invaders whose allegiance is to the Country they left. Foreign diplomats stationed here are not “subject to the jurisdiction of the US”. Thus, children born here of these aliens are not citizens!
2 The 1916 ed. of Law of Nations with Lapradelle’s introduction is a Google digitized book. If you download it, you get an easily readable text.
3 Many thanks to my friend, David J. Edwards, who provided me with Evidence of Vattel’s profound influence on our Founders & Framers.
4 The hyperlink contains another link where you can see Jay’s handwritten letter!
5 Note that Art. I, §2, cl. 2, permits naturalized citizens to serve as Representatives; and Art. I, §3, cl. 3, permits them to serve as Senators.
6 “Naturalization” is the process, established by law, by which foreigners become citizens.
7 Note that in §§ 215, 216 & 217, Vattel says that children born of citizens in a foreign country, at sea, or while overseas in the service of their country, are “citizens”. He goes on to say that by the law of nature alone, children follow the condition of their fathers; the place of birth produces no change in this particular. But he doesn’t expressly say they are “natural born citizens”. The italicized words at the end of the 1790 Act correct that and make it clear that children of citizens of the United States are “natural born citizens” wherever they are born.
8 The 14th Amendment doesn’t change this one whit! READ Prof. Erler’s paper, linked above.
NOTICE! To all who strain to find something I “failed to mention”: I didn’t quote Minor v. Happersett because Minor merely paraphrases, in dicta, a portion of the Naturalization Act of 1790, the text of which is set forth above.
And I didn’t show why John McCain & Mitt Romney ARE natural born Citizens; and why Marco Rubio & Obama are NOT natural born Citizens. J.B. Williams has already done an excellent job in applying the Republican Principles set forth by Vattel, and which were embraced by our Founders, Framers, and the First Congress, in his recent paper, Romney, Rubio, McCain And Natural Born Citizen. PH
July 19, 2012
POST SCRIPT added July 25, 2012:
The following valuable comment was posted by Political Junkie Too at:
If there is any government where prerogatives might with apparent safety be entrusted to any individual, it is in the federal government of America. The president of the United States of America is elected only for four years. He is not only responsible in the general sense of the word, but a particular mode is laid down in the constitution for trying him. He cannot be elected under thirty-five years of age; and he must be a native of the country.
In a comparison of these cases with the Government of England, the difference when applied to the latter amounts to an absurdity. In England the person who exercises prerogative is often a foreigner; always half a foreigner, and always married to a foreigner. He is never in full natural or political connection with the country, is not responsible for anything, and becomes of age at eighteen years; yet such a person is permitted to form foreign alliances, without even the knowledge of the nation, and to make war and peace without its consent.
But this is not all. Though such a person cannot dispose of the government in the manner of a testator, he dictates the marriage connections, which, in effect, accomplish a great part of the same end. He cannot directly bequeath half the government to Prussia, but he can form a marriage partnership that will produce almost the same thing. Under such circumstances, it is happy for England that she is not situated on the Continent, or she might, like Holland, fall under the dictatorship of Prussia. Holland, by marriage, is as effectually governed by Prussia, as if the old tyranny of bequeathing the government had been the means.
The presidency in America (or, as it is sometimes called, the executive) is the only office from which a foreigner is excluded, and in England it is the only one to which he is admitted. A foreigner cannot be a member of Parliament, but he may be what is called a king. If there is any reason for excluding foreigners, it ought to be from those offices where mischief can most be acted, and where, by uniting every bias of interest and attachment, the trust is best secured. But as nations proceed in the great business of forming constitutions, they will examine with more precision into the nature and business of that department which is called the executive. What the legislative and judicial departments are every one can see; but with respect to what, in Europe, is called the executive, as distinct from those two, it is either a political superfluity or a chaos of unknown things.
Yes, Paine did use the term “native of the country.” Does this mean “native born” instead of “natural born?” We have to look at the following statements to answer that question.Paine refers to Engish examples in order to define this. Paine cites “foreigner” and “half a foreigner” as the oppposite to “full natural” connection to the country. So, what is “half a foreigner?”
It seems to me that “half a foreigner” is a person with one parent who is a citizen and one parent who is not. This person does not have have a “full natural… connection with the country.”
Paine wrote plainly of why the Framers did not want “half-foreigners” to be president, and why only people with a “full natural… connection with the country” were allowed to become President.
Paine was widely recognized as the most influential writer of the time of Independence because of his plain writing style that resonated with the common person.
Paine’s description of the meaning of Article II was written in 1791, and I take it to be reflective of the common understanding of the time. This was, after all, written just two years after the ratification of the Constitution. If Paine said that natural born citizens meant both parents were citizens, then that was the plain meaning.
By Publius Huldah.
Our federal Constitution is one of enumerated powers only. This means that WE THE PEOPLE, who ordained and established the Constitution, listed therein every power We delegated to the federal government. If We didn’t list a power, the federal government doesn’t have it.1
Furthermore, we delegated only a very few powers to the federal government.
Accordingly, Congress has strictly limited legislative powers over the Country at large. These powers are listed primarily at Art. I, §8, clauses 3-16, and are restricted to war, international commerce & relations; and domestically, the creation of an uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, mail delivery & roads. Several Amendments delegate to Congress some power over civil rights.
These enumerated powers are the only areas where the federal government has lawful authority over The States and The People in The States. In all other matters [except those listed at Art. I, §10]the States and The People retain supremacy, independence, and sovereignty. Go here for a complete list of all of Congress’ Enumerated Powers.
Obamacare is altogether unconstitutional because it is outside the scope of the legislative powers We granted to Congress. Nothing in Our Constitution authorizes the federal government to control our medical care (or to exercise the other fearsome powers in the Act).
I challenge those five (5) lawless judges on the supreme Court [Roberts, Kagan, Sotomayor, Ginsberg, & Breyer], all other totalitarians, liberals, and parasites who support obamacare, to point to that clause of The Constitution where We delegated to the federal government power to control our medical care.
Article I, §8, clauses 1-16: What it Really Means.
Those five (5) lawless judges on the supreme Court looked at Art. I, §8, cl.1, and found power in Congress and the Executive Branch to take over our medical care – even to decide whether we will receive medical treatment or be denied medical treatment.2
And how did The Lawless Five do this? I’ll show you. But first, let’s see what the Constitution really says. Article I, §8, clauses 1 & 2 read:
Clause 1: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” [boldface added]
Clause 2: “To borrow Money on the credit of the United States;”
Immediately after Clauses 1 & 2 follows the list of enumerated powers WE delegated to Congress:
- Clause 3: To regulate “commerce” [For the Truth about the “commerce clause”, go here];
- Clause 4: To establish uniform laws on Naturalization and on Bankruptcies;
- Clause 5: To coin money & regulate its value, and fix the standard of weights & measures;
- Clause 6: To punish counterfeiting;
- Clause 7: To establish Post Offices and post Roads;
- Clause 8: To issue Patents and Copyrights;
- Clause 9: To set up federal courts “inferior” to the supreme Court [one may well ask how any court can be “inferior” to the supreme Court];
- Clause 10: To punish Piracies & Felonies on the high seas and offenses against the Law of Nations;
- Clause 11: To declare War, grant Letters of Marque & Reprisal, and make rules for Captures;
- Clause 12: To raise and support Armies;
- Clause 13: To provide and maintain a Navy;
- Clause 14: To make Rules for the land and naval Forces;
- Clause 15: To call forth the Militia; and
- Clause 16: To provide for organizing, arming, disciplining the Militia.
Add to this short list of enumerated powers; the “housekeeping powers” itemized in the paper linked here; the salaries authorized by Art. I, §6, cl. 1; Art. II, §1, next to last clause; Art. III, §1, cl. 1, and others on the civil list; together with the Amendments addressing civil rights; and you have the sole purposes for which Congress is authorized to levy and collect taxes, borrow money, and spend money for the Country at Large.
And this is precisely what James Madison, Father of Our Constitution, says in Federalist Paper No. 41 (last 4 paras). Some people were concerned that
“…the power ‘to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,’ amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare. “ (4th para from end).
Madison answered the above objection by saying that one would be grasping at straws to stoop to such a silly “misconstruction”. He said:
“Had no other enumeration or definition of the powers of the Congress been found in the Constitution, than the general expressions just cited, the authors of the objection might have had some color for it; though it would have been difficult to find a reason for so awkward a form of describing an authority to legislate in all possible cases. A power to destroy the freedom of the press, the trial by jury, or even to regulate the course of descents, or the forms of conveyances, must be very singularly expressed by the terms ‘to raise money for the general welfare’ .” (3rd para from end)
“But what color can the objection have, when a specification of the objects alluded to by these general terms immediately follows, and is not even separated by a longer pause than a semicolon? If the different parts of the same instrument ought to be so expounded, as to give meaning to every part which will bear it, shall one part of the same sentence be excluded altogether from a share in the meaning; and shall the more doubtful and indefinite terms be retained in their full extent, and the clear and precise expressions be denied any signification whatsoever? … Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning … is an absurdity…” (2nd para from end)
In the final paragraph of Federalist No. 41, Madison says Art. I, §8, cl. 1 does not vest in Congress a power to legislate in all cases whatsoever: Clause 1 is merely a “general expression”, the meaning of which is “ascertained and limited” by the clauses which “immediately follow” it.
To put Madison in modern English: Clauses 1 & 2 grant to Congress the power to raise money; clauses 3-16 enumerate the objects on which Congress may appropriate the money so raised, thus limiting clauses 1 & 2.
THAT is the Constitution We ratified.
What the Lawless Five Assert it Means:
See where it says in Clause 1, “To lay and collect Taxes”? The Lawless Five assert that this phrase authorizes Congress to lay & collect taxes for any purposes whatsoever.
They IGNORED the “specification of the objects [Clauses 3-16] alluded to by these general terms” [Clauses 1 & 2] – the “enumeration of particulars” which “explain and qualify” “the general phrase”.
In effect, they repealed Clauses 3-16. In a nutshell, the Lawless Five asserted that Congress and the President may do whatever they want to us. Just call it a “tax”.
What can WE Do?
First, we must disabuse ourselves of the monstrous lie that the federal government We created by Our Constitution is the exclusive and final judge of the extent of the powers delegated to it; and that the opinion of five judges, not the Constitution, is the sole measure of its powers. 3 That is a pernicious ideology antithetical to our Founding Documents and Principles. Once you understand that, our remedies are readily apparent:
1. Impeach Federal Judges who violate their Oaths of Office. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, §1, cl. 1) – usurp power, they must be removed from office. Alexander Hamilton writes in Federalist No. 81 (8th para) of:
“… the important constitutional check which the power of instituting impeachments in … [the House] … and of determining … them in the … [Senate] … give[s] to … [Congress] … upon the members of the judicial department. This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it, while this body was possessed of the means of punishing their presumption, by degrading them from their stations…” 4
We must elect Representatives and Senators who will support our Constitution by impeaching & removing usurping federal judges. We must elect people who will rid of us The Lawless Five.
2. Elect Representatives and Senators who will also repeal obamacare and dismantle everything which has been implemented so far.
3. Elect Romney. He has promised he will “repeal” obamacare. His Oath of Office – which is “to preserve, protect and defend the Constitution” – requires him to refuse to implement obamacare. By Executive Order, he must refuse to implement it, he must reverse all implementation in effect when he takes office, and he must rescind the unconstitutional rules [see, e.g., Art. I, §1] made by the baby-killing totalitarians who presently infest the Department of Health & Human Services.
4. States must nullify obamacare. Here are Nullification Resolutions States may use to nullify obamacare and the HHS rules.
State officials, legislators, and judges all take The Oath to support the federal Constitution (Art. VI, cl. 3); and that Oath requires them to nullify obamacare.
5. We the People must stop deceiving ourselves about the motives of people such as obama and the Lawless Five. They are not ‘basically decent people who just have different opinions”. They are Dolores Umbridges who are determined to reduce us to abject slavery. PH.
1 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” (Federalist No. 45 , 9th para)
“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” (Federalist No. 39, 3rd para from end)
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8th para)
2 There is much more in obamacare than transferring to the Executive Branch power to decide whether we will receive or be denied medical care. It is a parade of horribles worthy of Stalin, Hitler, and Anita Dunn’s hero, Mao. It transfers total control of our lives to the Executive Branch.
“1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes,–delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.” [boldface mine]
4 With obamacare, the Lawless Five colluded with Congress & the Executive Branch to subvert Our Constitution. Our Framers warned us of such connivances between the branches of the federal government:
Alexander Hamilton tells us that Congress can’t successfully 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.”
James Madison says in Federalist No. 44 (last para before 2.):
“…the success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts; …” [boldface added]
Hamilton and Madison are telling us that We don’t have to go along with obamacare just because Five totalitarians on the supreme Court want the Executive Branch to have total control over our lives. This is where we draw the line. We must Resist this tyranny. PH
July 5, 2012