The Proposed Tennessee Resolutions of 2012
PLEASE NOTE: I have revised these model resolutions. The revised version is better organized and reads better. You can find the revised resolutions by clicking on the following hyperlink:
Do use the revised model for your study, instead of the one below.
The revised version – which you can find at the link – sets forth in a nutshell all one needs for a basic understanding of our Constitution – and how the supreme Court destroyed it.
As always, feel free to post your questions. PH
Proposed by Publius Huldah.
1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only. That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.
That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.
That to these Principles, each State agreed as a State, and as the Parties to the Constitution.
That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers. That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.
2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system: Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. That the 10th Amendment to the Constitution also declares that “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.”
That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.
4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever. That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force, as in violation of Art. I, Sec. 1, of the federal Constitution.
5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.
6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State. That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.
7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:
a) The “taxing” and “general welfare” clauses: Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).
The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases. This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 7th para).
b) The “interstate commerce” clause: “Commerce” is the buying and selling of goods – only that and nothing more. Webster’s American Dictionary (1828) says “commerce” is:
“an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.”
Federalist No. 22 (4th para), Federalist No. 42 (9th &10th paras), Federalist No. 44 (at 2.), and Federalist No. 56 (5th & 6th paras), explain the two purposes of the “interstate commerce” clause: (1) 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 (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.
Article I, Sec. 8, cl.1; Art. I, Sec. 9, cls. 5 & 6; and Art. I, Sec.10, cls. 2 & 3, of the federal Constitution give express effect to these two purposes of the “interstate commerce” clause.
c) The “necessary and proper” clause: This clause 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 writes to the same effect in (Federalist No. 44, at 1.).
The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution. No additional substantive powers are granted by this clause.
That contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only:
“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)
“…It merits particular attention … that the laws of the Confederacy [those made by 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).
That The Federalist Papers – and not the U.S. supreme Court – is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. 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, Sec. 1, cl. 1) – usurp powers, they must be impeached and removed from office (Federalist No. 81, 8th para).
8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.
Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.
That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.
But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.
Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State. That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.
The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it. Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5th para). As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them.
9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.
Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.
That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents; and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges”.
That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred. Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.
To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.
That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.
10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President. Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 2nd para, and No. 77, last para). That the supreme Court long ago took the side of those who seek to exercise unlimited control over the States and THE PEOPLE; and that Congress has failed in their duty to impeach and remove federal judges who usurp powers (Federalist No. 81, 8th para).
That pursuant to Art. VI, cl. 3 of our federal Constitution, all State legislators, State Officers and State Judges take a solemn Oath to support our federal Constitution. Therefore, they are bound to protect THE PEOPLE of their States from the usurpations of the federal government whose clear object is the establishment of an absolute Tyranny over the States and the People.
That our Framers anticipated the dangers we now face and provided wise counsel for such a time as this. Federalist No. 28 (last 5 paras) states that when “the representatives of the people betray their constituents”, the people have no recourse but to exert “that original right of self-defense” [The Declaration of Independence, 2nd para], against “the usurpations of the national rulers” (5th para from end).
That in a Federation of States united under a federal government for only limited purposes,
“…the people… are…the masters of their own fate. Power being almost always the rival of power, the general [federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…” (4th para from end)
Thus, THE STATE LEGISLATURES are the ultimate bulwark of The People and The Ultimate Human Protectors of our Constitutional Republic:
“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.” (3rd para from end)
The last paragraph of Federalist No. 28 recognizes that when the federal government seeks
“… a despotism over the great body of the people … [the people] are in a situation, through the medium of their State governments, to take measures for their own defense…”
11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go. Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?
That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence.
That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.
THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.
1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.
2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powersand disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.
3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; thatthe federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.
Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.
Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …” (2nd para)
In that one paragraph, we learn the five foundational principles of our Constitutional Republic:
- Our Rights are unalienableand come from God;
- The purpose of civil government is to protect our God-given Rights;
- Civil government gets its powers from THE PEOPLE;
- Civil government is legitimate only when it stays within the powers WE delegated to it; and
- When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.
The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look atthe opening words:
“WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.”
The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate.
When the federal government loses its legitimacy – as it now has – it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.
4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.
But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 2nd para & No. 77, last para).
But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States. The proper battle cry in such events is, “Not in my state!”
Do you see? PH
Posted March 13, 2012
Postscript Added March 15, 2012:
The federal government is not God. It is merely our “creature”. We The People created the federal government when We ordained and established Our Constitution. And when We enumerated the powers We delegated to each branch of the federal government, We told the federal government what We were giving it permission to do.
But we have now come to believe that the federal government may do whatever it wants; and we must obey it. And because we have believed this for so long, a totalitarian fascist dictatorship is right now being imposed on us.
So what should we do? Revolution and bloodshed? No! There is a better way, and our Framers show us: On behalf of The People of their States, The State Legislatures must now resort to that original right of self-defense which pre-exists & pre-dates The Constitution; and must nullify those acts of the federal government which are outside the scope of the powers We delegated to it in Our Constitution.
The Model Resolutions set forth the Authorities on which they are based, so that State Legislators may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH
By Publius Huldah
1. With the U.S. Constitution, We The People created the federal government. It is our “creature”, and has no powers other than those We delegated to it in Our Constitution.
Webster’s American Dictionary of the English Language (1828), says re “constitution”:
“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.” [boldface mine]
If you, dear Reader, will study this paper and read the Constitution, you will know more about it than most State & federal judges, most law professors & lawyers, those who spout off on TV & radio, just about anybody in Congress, and the self-educated who fixate on their own idiotic theories. And you will certainly know more than anyone currently occupying any office in the executive branch of the federal government.
2. The federal government 1 has three branches: Article I of the Constitution creates the Legislative Branch (Congress) & lists its powers; Article II creates the Executive Branch & lists its powers (President); and Article III creates the Judicial Branch (federal courts) & lists its powers.
In this paper, we will consider only the enumerated powers of Congress. But the powers of the other two branches are likewise strictly limited and enumerated.
3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea! Instead, the areas in which Congress is authorized to act are strictly limited and defined (“enumerated”).
WE delegated to Congress the following Enumerated Powers over the Country at Large:
Article I, § 8, clauses 1-16 delegate to Congress the powers:
(1) To lay certain taxes;
(2) To pay the debts of the United States;
(3) To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;
(4) To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;
(5) To establish uniform Rules of Naturalization;
(6) To establish uniform Laws on Bankruptcies;
(7) To coin money and regulate the value thereof;
(8) To fix the standard of Weights and Measures;
(9) To provide for the punishment of counterfeiting;
(10) To establish post offices and post roads;
(11) To issue patents and copyrights;
(12) To create courts inferior to the supreme court; and
(13) To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.
Other provisions of Our Constitution delegate to Congress powers over the Country at Large to make laws regarding:
(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);
(15) Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);
(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); 2
(17) After 1808, to restrict migration (immigration) to these United States (Art. I, §9, cl. 1);
(18) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);
(19) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)
(20) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);
(21) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,
(22) Procedures for amendments to The Constitution (Art. V).
The 13th, 14th, 15th, 16th, 19th, 23rd, 24th, & 26th Amendments delegated additional powers to Congress over the Country at Large respecting certain civil rights & certain voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.
So! In a nutshell, the powers WE delegated to Congress over the Country at Large fall into four categories:
♠ International relations, commerce and war;
♠ Control immigration by restricting who may come to these United States, and establish a uniform rule of naturalization of new citizens;
♠ Domestically, to establish a uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery.
♠And in some of the Amendments, to protect certain civil and certain voting rights.
That’s it! All other powers are retained by the States or the People.
Federal Enclaves & Territories:
4. Two provisions of Our Constitution grant to Congress broad legislative powers over these two categories of specifically defined geographical areas:
a) Federal Enclaves: Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas: the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in Federalist No. 43 at 2., it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.
b) Territories: Article IV, §3, cl. 2 grants to Congress power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States (as opposed to property belonging to individual states). As these territories became States, Congress’ powers under this Article were terminated.
Congress may not lawfully exercise ANY other powers!
5. Thus, Congress has NO LAWFUL AUTHORITY to bail out financial institutions, businesses, and homeowners who don’t pay their mortgages; NO LAWFUL AUTHORITY to take control of our health care; NO LAWFUL AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO LAWFUL AUTHORITY to take away your IRA’s and other retirement accounts, NO LAWFUL AUTHORITY to take your guns, NO LAWFUL AUTHORITY to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.
Therefore, all laws which Congress has made on such topics are unconstitutional as outside the scope of the legislative powers WE delegated to Congress in OUR Constitution. WE THE PEOPLE did not give such powers to Congress when we ordained and established the Constitution, created the Congress, and listed its 22 enumerated powers over the Country at large. And WE did not delegate those powers to Congress in any of the Amendments.
6. You ask, “How can Congress make all these laws if they are unconstitutional?
Congress gets away with it because WE are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!
Consider Prohibition: Up to 1919, everyone still understood that The Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages! So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).
But after the Progressives took over the federal government during the early 1900s, the federal government was transformed from one of limited & enumerated powers only to the Frankensteinian monster it is today. The Progressives are the ones who 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.
During the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers delegated to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal/progressive side, and the Court started approving FDR’s programs (5 to 4).
7. Since then, law schools don’t teach the Constitution. Instead, they teach decisions of the FDR-dominated supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!
8. “Well”, you ask, “what about ‘the general welfare clause’? Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “? NO, IT DOES NOT!
First, you must learn what “welfare” meant when the Constitution was ratified: “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant
“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).
But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief – on welfare. Dependent on public relief”. Do you see how our Constitution is perverted when new meanings are substituted for original meanings?
Second, James Madison addresses this precise issue in Federalist No. 41 (last 4 paras): Madison points out that the first paragraph of Art. I, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. So, yes! The powers of Congress really are restricted to those listed herein above.
OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace & prosperity, and the enjoyment of the ordinary blessings of society & civil government, was possible only with a civil government which was strictly limited & restricted in what it was given power to do!
9. “OK”, you say, “but what about ‘the commerce clause’ (Art. I, §8, cl. 3)? Doesn’t that give Congress power to pass laws on any subject which ‘affects’ ‘interstate commerce’ “? NO, IT DOES NOT! In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Alexander Hamilton & James Madison explain the purpose of the “interstate commerce” clause: It is to prohibit the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling. That’s what it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. 3
10. “Well, then”, you say, “doesn’t the ‘necessary & proper’ clause’ ["elastic clause" or "sweeping clause" ] (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT! Alexander Hamilton says the clause merely gives to Congress a power to pass all laws necessary & 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 & proper for the execution of that power (Federalist No. 33, 4th 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” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para). James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.
11. The 10th Amendment states:
“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.”
So! If a power is not delegated by Our Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People. And WE are “The People”!
12. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers. 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, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” [emphasis mine]
In Federalist No. 39 (14th 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.”
and in Federalist No. 14 (8th para):
“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…” [emphasis mine]
13. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations. The executive branch and the federal courts approve it. Such is the essence of tyranny. They are “ruling” without our consent, and hence the federal government is now illegitimate. PH
1 “Federal” refers to the form of government: An alliance of States associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas ONLY.
2 Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. But Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade! James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately (Federalist Paper No. 42, 6th para).
3 See Justice Clarence Thomas’ concurring opinion in United States v. Lopez (1995). Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.
Revised July 1, 2009; Sep 8, 2009; Oct. 17, 2010; Jan 3, 2013; Feb. 4, 2013
CONGRESS’ POWERS TO MAKE CRIMINAL LAWS
By Publius Huldah
1. The Constitution grants to Congress only limited powers to make criminal laws. These powers fall into five categories: a) those made pursuant to express authorizations for four specific crimes; b) those made under the “necessary and proper” clause; c) those made for the few tiny geographical areas over which Congress has “exclusive Legislation”; d) those governing the military; and e) those made pursuant to two of the Amendments to the Constitution. Let’s look at each category:
a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against “the Laws of Nations”.  Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.
b) Art. I, §8, last clause, grants to Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution …all …Powers vested by this Constitution in the Government of the United States…”. This necessary and proper clause allows Congress to make criminal laws when necessary to enforce powers vested by the Constitution in the federal government. This worried people, so Madison & Hamilton explained it:
In Federalist No. 44, Madison said, regarding the peoples’ fears of usurpations by Congress:
what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments,  which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers (17th Para).
In Federalist No. 33, Hamilton cited Art. VI, cl.2, as showing that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such (7th Para). He also said:
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (6th Para)
So! Congress has authority under the necessary and proper clause to make criminal laws enforcing the “Taxes, Duties, Imposts and Excises” authorized by Art. I, §8, cl.1; to make criminal laws prohibiting the filing of false statements or claims in Bankruptcy Court (Art. I, §8, cl. 4); and to make criminal laws forbidding the importation of slaves after 1808 (Art. I, §9, cl. 1). Article II, §4 mentions impeachment of civil officers for, among other things, “bribery”; so by implication, Congress is authorized to pass a criminal statute prohibiting the accepting of bribes by civil officers of the United States. The main duty of the federal judiciary created by Art. III is to conduct trials [in the limited category of cases which they are permitted to hear], and that means parties & witnesses. Parties & witnesses must be required to tell the Truth. So, it would be necessary and proper for Congress to make laws declaring perjury and lying under oath in federal court criminal offenses.
These examples are not exclusive – there are doubtless additional criminal laws which would be appropriate exercises of the necessary and proper clause. But it is important to note that private citizens would rarely, if ever, be in situations where these criminal laws would apply to them!
c) Article I, §8, next to last clause, authorizes Congress to exercise “exclusive legislation in all Cases whatsoever” over small defined geographical areas: the seat of the government of the United States [not to exceed ten squares miles], forts, dock-yards, magazines, arsenals, and the like. As Madison said in The Federalist No. 43 (4th –6th Paras), it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, dock-yards, etc. This means that over these limited geographical areas, Congress has authority to make the full range of laws criminalizing murder, robbery, extortion, arson, rape, kidnapping, etc. It is important to note that private citizens would not be affected by these laws unless they are inside the District of Columbia, military bases, dock-yards, and the like. 
d) Article I, §8, cl. 14 authorizes Congress “To make Rules for the Government and Regulation of the land and naval Forces.” Under this grant of authority, Congress has properly enacted The Uniform Code of Military Justice, the criminal code which governs members of our military forces. This covers all the “standard” criminal offenses plus additional crimes uniquely appropriate to those in the military: failure to obey a lawful order, dereliction of duty, absent without leave, desertion, conduct unbecoming an officer, etc. Again, it is important to note that civilians are not affected by the criminal code which governs our military forces.
e) Some of the Amendments to the Constitution authorize Congress to enact laws to enforce them: The 13th Amendment would authorize Congress to make laws criminally punishing those who keep slaves. The 16thAmendment presumably authorizes Congress to make criminal laws to enforce the “income” tax. The 18th Amendment (now repealed) authorized Congress & the States to make laws criminally punishing those who manufactured or trafficked in intoxicating liquors. The 14th, 15th, 19th, 24th, & 26th Amendments restrict only States &/or the federal government. The other Amendments (after the original Ten) address “housekeeping” issues. So, Congress’ criminal jurisdiction over private citizens under all Amendments is limited to those who keep slaves or don’t pay “income” taxes (whatever “income” meant when the Amendment was adopted). Estate and gift taxes are not authorized by the Constitution.
2. So! Much of the federal criminal code of today consists of “laws” which are mere usurpations and deserve to be treated as such. They are not “laws”, because they are outside the legislative powers granted to Congress by the Constitution. Excepting members of the military, and outside the tiny geographical areas (the District of Columbia, military bases, dock-yards, etc., and any Territories) where Congress has “exclusive legislation”; Congress has no general authority to pass criminal laws. Thus, laws which purport to be of general application throughout the several States criminalizing acts respecting firearms, ammunition, hate crimes, environmental crimes, economic crimes, banking crimes, computer crimes, murder, kidnapping, narcotics, arson, extortion, etc. etc., etc., etc., etc., are all unconstitutional usurpations.
Lest you think this is astonishing, remember that before the 18th Amendment was ratified in 1919, everybody knew that Congress didn’t have the power to make laws criminalizing the manufacture or distribution of intoxicating beverages! Congress needed an Amendment to the Constitution to authorize them to make the laws giving effect to prohibition! But today, Congress is lawless & filled with usurpers; and the federal prisons are filled with inmates convicted under unconstitutional laws.
Do we have a remedy for these usurpations by Congress? YES! As Madison, quoted above, said,
the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.
Thus, when Congress makes a criminal law for which it lacks constitutional authority, the Executive Branch (in the person of the U.S. Attorney) has the power & duty to refuse to prosecute the violation. If that check fails, the Judicial Branch has the power to declare the statute unconstitutional.  If the U.S. attorneys and federal judges both fail in their obligations to enforce the Constitution, Madison said, as quoted above,
…in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
Hamilton said, as quoted above,
If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.
Did you get that? Hamilton said that when our ”creature”, i.e., the federal government, usurps power, WE are to judge the conduct by the standard of the Constitution, and WE are to take appropriate action to “redress the injury done to the Constitution”! This includes demands for impeachment, recall petitions, defeating faithless representatives in the next election, nullification by states, jury nullification, non-violent civil disobedience, ignoring unconstitutional “laws” because an unconstitutional “law” is a “mere usurpation and deserves to be treated as such” ; and the like.
Alexander Hamilton considered the people to be “the natural guardians of the Constitution”; and contemplated “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (The Federalist, No. 16, 10th Para).  One expects Hamilton would be disappointed in “the People” of today.  It is OUR responsibility to learn the Constitution, to educate the people in our spheres of influence, and to take this country back from the faithless usurpers who have betrayed us.
3. Did the Framers of the Constitution advocate anarchy? No way! The legislatures of the States have whatever authority granted to them by their State Constitutions to enact criminal codes applicable to those within the borders of their States. Madison said it all in Federalist No. 45 (9th Para):
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.
It is up to the States to enact the criminal codes which apply to the people within their borders.
Publius/Huldah July 4, 2009
Webster’s American Dictionary (1828) defines “laws of nations” as, “the rules that regulate the mutual intercourse of nations or states. These rules depend on natural law, or the principles of justice which spring from the social state; or they are founded on customs, compacts, treaties, leagues and agreements between independent communities.”
Here is one example of a “law of nations” based on custom: From antiquity to modern times, envoys between warring armies have been entitled to safe conduct while on their missions. In the [excellent!] movie, “300”, it was a shocking thing when the Spartan King, Leonidas, killed the envoys of the Persian King Xerxes. Our concept of “diplomatic immunity” is thus an ancient one.
 Madison here illustrates checks which the Executive & Judicial Branches have over Congress. We all know that Courts may declare an act of Congress unconstitutional; but most don’t know that the President should refuse to enforce an Act of Congress which the President, in the exercise of his thoughtful & independent judgment, deems unconstitutional. The President’s Oath is to “…preserve, protect and defend the Constitution…” (Art II, § 1, last cl.). It is not to “go along with” Congress – it is not to “obey” the Courts. The President must make his own independent determinations. He may not properly abdicate this duty in favor of another Branch! The Executive Branch is to function as a check on the other two! The check on the President is impeachment & removal from office.
 Article IV, §3, cl. 2 also granted to Congress authority to dispose of and make all needful Rules and Regulations respecting the Territories belonging to the United States [such as the Western Territories before they became States - Federalist No. 43, 11th Para]. This gave Congress authority to make the full range of criminal laws to govern those Territories until such time as they became States. When they became States, jurisdiction to enact criminal laws would be transferred TO the new State.
 It is the responsibility of defense counsel to raise the issue of the unconstitutionality of the statute under which defendant is charged. But lawyers, like everybody else in our modern culture, have been indoctrinated into statism; and like everybody else, are often unaware that Congress must be authorized by the Constitution to enact a criminal law before the law is valid. The judge has an independent responsibility to raise the unconstitutionality of the statute; but like defense counsel and everybody else, they often don’t know that Congress must have constitutional authority for their Acts.
 Hamilton also knew that “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Federalist No. 16, 10th Para. [emphasis added]. Thus, the people, as the natural guardians of the Constitution, have a duty to protest when the authorities act lawlessly! If they don’t, they will suffer the consequences, as in Europe during the last century &, as we may soon see, in our own once blessed country.
Warning! The following contains explicit religious content which may be highly offensive to some: This obligation to protest lawlessness reflects the covenantal nature of civil government as established in the Bible (See David’s covenant at 1 Chron 11:1-3 & 2 Sam 5:1-4; Joash’s (via the priest Jehoiada) covenant at 2 Kings 11:17 & 2 Chron 23:16; and Josiah’s covenant at 2 Kings 23:1-3). Out of this covenantal relationship arises the peoples’ obligation to protest lawlessness. If they don’t protest, God punishes the people because of the misdeeds of their “kings”. See, e.g., 2 Sam 21, which tells of God’s sending a 3 year famine because Saul put the Gibeonites to death; 1 Chron 21 & 2 Sam 24, which tell of the pestilence which killed 70,000 Israelites because David took the census; 1 Kings 16:29-33, 17:1, 18:1, 18:17-19 which tell of the reign of Ahab & Jezebel and the famine God (via Elijah) sent because Ahab & his house had forsaken the commandments of the Lord; 2 Chron 21:1-14, which tell of King Joram and the heavy blow God struck at Joram’s people because of Joram’s wickedness; and 2 Kings 21:10-17 & Jer 15:3-4 which tell of the four dooms God visited upon Jerusalem & the S. Kingdom because of the sins of Manasseh. If the Germans had protested Hitler in a timely fashion, millions of lives would have been spared. Will we make the same mistake?
 Hamilton contemplated “…the most vigilant and careful attention of the people…” (Federalist No. 23, next to last Para). In speaking of power disputes between the federal and state governments, Hamilton said that if the rights of the people “…are invaded by either, they can make use of the other as the instrument of redress.” (Federalist No. 28 7th Para).
June 29, 2009; revised April 16, 2011