By Publius Huldah
We are Americans. We are resourceful. When doors are slammed in our faces, we find another way. Since five (5) lawless judges on the U.S. supreme Court betrayed us by failing to declare the Patient Protection and Affordable Care Act (“obamacare”) unconstitutional; since we may be stuck with obama for four more years; 1 and since a democrat-controlled U.S. Senate will not repeal obamacare, we must find another way.
There is another way. Here it is, and it comes from Thomas Jefferson, author of the Declaration of Independence.
Nullification Resolutions for State Legislatures
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 in the Constitution of the United States, THE PEOPLE 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, mail delivery and road building. 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 the medical care of THE PEOPLE; and that nowhere in the Constitution are powers over this matter prohibited to The States.
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 being promulgated by the Department of Health and Human Services, one of the executive Departments of the federal government, to be set forth in Title 45 of the Code of Federal Regulations, and which pretend to regulate the medical care of THE PEOPLE throughout the several States; are altogether void, and of no force, as in violation of Art. I, Sec.1, of the federal Constitution.
That as matters pertaining to the “medical care”, “health”, and “human services” of THE PEOPLE 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; the federal Department of Health and Human Services 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 should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States, THE PEOPLE, the medical profession, and The Churches their own ideas of what others must and must not do in the area of medical care; and may force upon them their own ideas of what medical treatments each person shall be provided or denied.
That this spurious federal Department will further send out swarms of officers to trespass upon hospitals, doctors’ offices, other places of provision of medical care, and premises of religious institutions, to harass providers of medical services, dictate to them as to what specific medical treatments they must provide and are forbidden to provide to their patients.
To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers THE PEOPLE delegated to the federal government in our Constitution.
That the 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 and impose punishment. 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.
5. Resolved, That all aspects of the medical care of THE PEOPLE, not being anywhere delegated to the United States by the Constitution, or prohibited by The Constitution to The States, are reserved to The States respectively, or to THE PEOPLE. Therefore, power over this matter is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.
6. 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.
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.
8. Resolved, 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”. 2 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, as they did with their lawless opinion upholding obamacare, they must be impeached and removed from office (Federalist No. 81, 8th para).
9. Resolved, That those within the Legislative, Executive, and Judicial Branches of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain against their unbridled and insatiable lust for power over THE PEOPLE except for The States.
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 its 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 by sacred Oath 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…”
10. Resolved, That because men are corrupt and 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 obamacare void, and of no force, and will take measures of its own for providing that neither that act, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised in any manner whatsoever within This State.
1. The above is patterned on Thomas Jefferson’s various writings on nullification, including The Kentucky Resolutions of 1798, written by him 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 Resolutions focus on an Act of Congress and administrative rules being made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address 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 upholding obamacare, banning public expressions of the Faith of Our Fathers in order to convert us into a secular humanist State, and misapplying Sec. 1 of the 14th Amendment in order to undermine the morals of the People and 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; that the 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 “orders” or “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.
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 States acting in concert may do so.
They overlook (among other things) 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 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 repealing its usurpatious law and by impeaching & removing 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 or THE PEOPLE and THE CHURCHES 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.
These Model Resolutions set forth the Authorities on which they are based, so that State Legislators and Citizens may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH
1 We can get rid of him earlier if we send enough people to Congress in 2014 with the spine to impeach & convict him and Biden. The Federalist Papers (cited above) are clear that Presidents should be impeached & removed for usurpations of power.
2 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School:
“Resolved that it is the opinion of this board that as to … the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as 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. 3. the Resolutions of the General assembly of Virginia in 1799. on the subject of the Alien and Sedition laws, which appeared to accord with the predominant sense of the people of the US. 4. the Valedictory address of President Washington, as conveying political lessons of peculiar value. and that in the branch of the school of Law, which is to treat on the subject of Civil polity, these shall be used as the text and documents of the school.” [pages 82-83, boldface added]. PH
November 13, 2012
November 13, 2012 Posted by Publius Huldah | 10th Amendment, Department of Health and Human Services, Health Care, Kentucky Resolutions of 1798, Nullification by States, nullification of obamacare, Nullification of unconstitutional acts, Nullification Resolutions, obamacare, Patient Protection and Affordable Care Act, Rulemaking by Executive Agencies, Tennessee Constitution, Thomas Jefferson, Usurpations of power | Department of Health and Human Services, Federalist Paper No. 28, Kentucky Resolutions of 1798, Nullification, nullification by States, nullification resolutions, obamacare, Patient Protection and Affordable Care Act, rulemaking by executive agencies, socialized medicine, states rights, Tennessee Constitution, Tenth Amendment, the taxing clause, Thomas Jefferson, usurpations of power | 41 Comments
By Publius Huldah.
Bill O’Reilly (Fox News) made our Framers proud when, on March 26, 2012, he correctly explained [probably for the first time ever on TV] the genuine meaning of the interstate commerce clause. O’Reilly’s guest was Big Government Progressive Caroline Fredrickson, Esq., of the inaptly named “American Constitution Society”. In trying to defend obamacare, she said that our Framers intended to grant to Congress extensive powers over the “national economy”:
“When the Founding Fathers adopted the Constitution, they put in the commerce clause ah specifically so that Congress could actually regulate interstate commerce. They envisioned a national economy, and we really have one now, and to the tune of over two trillion dollars, health care makes up a big big part of that and so it’s completely within the power of ah Congress to pass this legislation [obamacare] and to attempt to provide some reasonable regulation…”
But what she said is not true! Accordingly, O’Reilly responded:
“The interstate commerce clause was put in so individual States could not charge tariffs [for] going from one state to another. So, for example, Pennsylvania would say to New Jersey, ‘Hey, you can’t bring in anything here from New Jersey unless you pay us 2% on it.’ ”
Bravo, O’Reilly! That is precisely the purpose of the interstate commerce clause. James Madison, Father of our Constitution, wrote in Federalist No. 42 (9th para):
“… A very material object of this power [to regulate interstate commerce] was the relief of the States which import and export through other States, from the improper contributions levied on them by the latter. Were these at liberty to regulate the trade between State and State … ways would be found out to load the articles of import and export, during the passage through their jurisdiction, with duties which would fall on the makers of the latter and the consumers of the former…”
And Alexander Hamilton wrote in Federalist No. 22 (4th para):
“…’ The commerce of the German empire … is in continual trammels from the multiplicity of … duties which the several princes and states exact upon the merchandises passing through their territories, by means of which the … navigable rivers [of] … Germany … are rendered almost useless.’ Though the … people of this country might never permit this … to be … applicable to us, yet we may … expect, from the … conflicts of State regulations, that the citizens of each would … come to be … treated by the others in no better light …”
So! What our Framers said was that the purpose of the interstate commerce clause is to authorize Congress to prevent 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.1
But Fredrickson apparently has no idea what our Framers said. She dug deeper:
“Actually this was a major issue at stake in the adoption of the Constitution was the ability of our national government to deal with national issues and, let’s look a little bit at what’s happened in the 20th century…”
What? Our Framers made a “major issue” of their determination to grant to Congress power over whatever it might in the future deem to be a “national issue”?
Rubbish! What Fredrickson said is demonstrably false. Our Framers said the exact opposite of what she represented. In Federalist No. 45 (9th para), Madison identified the “national issues” Congress would be dealing with:
“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; … 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….” [boldface mine]
In Federalist No. 39 (3rd para from end):
“…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.” [boldface mine]
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.…” [boldface mine]
Do you see? Our Framers drafted a Constitution which established a Federation of Sovereign States united only for the limited purposes enumerated in the Constitution. The powers of each of the three branches of the federal government are carefully limited and defined. See: Congress’ enumerated powers, the President’s enumerated powers, and the Judicial Branch’s enumerated powers. Our Constitution does not delegate general legislative powers over the Country at large to Congress! Ours is a Constitution of enumerated powers only. And nothing – nothing – in the Constitution authorizes the federal government to control the provision – or denial – of medical care to The People. Thus, obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress by Our Constitution.
Folks! Do not believe what you hear people saying about Our Constitution on TV or the Radio. Most of them don’t know what they are talking about, or they are lying. Only rarely does anyone get it right as O’Reilly did. So you must check things out for yourself. And always demand Proof! PH
1 For a more definitive explanation of the genuine meaning of the interstate commerce clause, and more irrefutable proof from primary sources, see: Does The Interstate Commerce Clause Authorize Congress To Force Us To Buy Health Insurance? Progressives! Read it and rebut it, if you can. PH
April 17, 2012
April 17, 2012 Posted by Publius Huldah | Health Care, Interstate Commerce Clause, obamacare | Bill O'Reilly, Caroline Fredrickson, commerce clause, enumerated powers, founding fathers, interstate commerce clause, obamacare, original intent | 8 Comments
By Publius Huldah.
A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”, Washington Post writer Greg Sargent and Georgetown University history professor Adam Rothman.
In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.
So! Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized medicine”; and so the “political right-wing” should stop “pretending” that our Founding Fathers would oppose obamacare.
Greg Sargent chimed in to the same effect, and quoted history professor Adam Rothman for the idiotic propositions that
“…the post-revolutionary generation clearly thought that the national government had a role in subsidizing health care … that in itself is pretty remarkable and a strong refutation of the basic principles that some Tea Party types offer … This defies a lot of stereotypes about limited government in the early republic.”
But Unger’s, Sargent’s and Rothman’s statements are so transparently ignorant they can be disposed of in a few paragraphs:
Congress’ Three Categories of Legislative Powers
One: Congress has only limited legislative powers over the Country at large. These legislative powers 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, and mail delivery. Various Amendments granted to Congress certain powers over civil rights. These enumerated powers are the only areas wherein the national government has lawful (constitutional) authority over The States and The People in The States. In all other matters [except those listed at Art. I, Sec. 10] the States and The People retained supremacy, independence, and sovereignty.
Two: Article I, Sec. 8, clause 17, U.S. Constitution, says:
“The Congress shall have Power To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislatures of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;” [boldface mine]
“Exclusive Legislation in all Cases whatsoever” over “dock-Yards”. Do you see? It is this clause which grants to Congress authority to establish marine hospitals on dock-Yards belonging to the United States. Congress has a general legislative authority over the federal enclaves, such as dock-Yards. That legislative authority is limited only by the Bill of Rights.
In Federalist Paper No. 43 at 2., James Madison explains in three short paragraphs [read them!] why the federal government must have “complete authority” over the federal enclaves listed at Art. I, Sec. 8, cl.17.
Alexander Hamilton in Federalist No. 32 (2nd para), comments also on the grant of “EXCLUSIVE LEGISLATION” over the federal enclaves [capitals are Hamilton’s] in “The last clause but one in the eighth section of the first article…”
Do you see? That grant of “exclusive legislation” is restricted to the federal enclaves.
Three: Article IV, Sec. 3, cl. 2, grants to Congress the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States…” Madison shows in Federalist No. 43 at 5. that “the Territory” referred primarily to the Western Territory before it was formed into States.
That’s it, Folks!
So! While Rick Unger crowed in his article,
“While I’m sure a number of readers are scratching their heads in the effort to find the distinction between the circumstances of 1798 and today, I think you’ll find it difficult.”
It’s not difficult at all! All one has to do is read Art. I, Sec. 8, cl. 17, which permits Congress to make such a law for American ships using the dock-Yards belonging to the United States. That’s what “exclusive Legislation in all Cases whatsoever” means. Do you see?
Congress has no such legislative authority for the Country at large. There, it is limited and enumerated. PH
April 5, 2012
Postscript Added April 7, 2012:
Attorney Hal Rounds (Memphis, TN), gave me the following fascinating information:
“My GGrandfather was a U.S. Consul, his last post was in Nova Scotia. Among his records is a series of reports regarding how he arranged for the isolation, shelter, and nursing in Nova Scotia of an American sailor ill with smallpox. The ship left, after disembarking the now useless – and contagious – victim. This care necessitated local expenses and hiring. I do not know what, if any, of the cost was borne by the ship owner, and what portion was by the U.S. Government. (The sailor survived, and eventually was sent on his way.)
But the duties of a nation extend to some services to its citizens abroad. These are, of course, governed by treaties and customary traditions. So, a law requiring a ship operator to insure his crew fits in with the federal authority to regulate “commerce with foreign nations” and its jurisdiction over U.S. flag shipping outside, or traveling between, state jurisdictions. Because ships will dump sick sailors wherever they may make landfall, and the locals have the burden of dealing with the victim. Their care then raises the legal right to compensation for their services, which the law of nations allows to be levied against the nation, not just the owners, of the ship.
The requirement in 1798 addressed these concerns. It was not a requirement to subsidize health care for the citizenry at large, but to indemnify the federal government against claims that would arise in the course of the U.S. being a nation engaged in international trade, and, under the law of nations, responsible for the burdens its commerce threw upon foreigners; and to accommodate the demands the foreign vessels would dump on us.”
THANK YOU, Hal! I showed how Congress had the authority to make the law; you explained why Congress needed to make the law, and provided additional constitutional authority for Congress to make the law. PH
April 5, 2012 Posted by Publius Huldah | federal enclaves, Health Care, Merchant Seamen healthcare, obamacare | Congress' legislative powers, federal enclaves, merchant seamen, obamacare, socialized medicine | 6 Comments
Lawyer, philosopher & logician. Strict constructionist of the U.S. Constitution. Passionate about The Federalist Papers (Alexander Hamilton, James Madison & John Jay), restoring constitutional government, The Bible, the writings of Ayn Rand, & the following:
There is no such thing as Jew & Greek, slave & freeman, male & female, black person & white person; for we are all one person in Christ Jesus.
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WARNING AGAINST A CON-CON a/k/a “constitutional convention” or “Article V convention” or “Convention of the States”: Do not be deceived by the people who are calling for these. Go here and read the warning of James Madison and others. Be sure to read “Twenty Questions About a Constitutional Convention”: http://www.eagleforum.org/topics/concon/
See also this valuable article by Phyllis Schlafly which addresses Mark Levin’s untrue claims about a “convention called by the States to propose amendments”.
In these two articles, investigative journalist Kelleigh Nelson exposes the nefarious forces – on the phony “Right” – involved in the push for an Article V convention. Folks, the leadership at “Tea Party Patriots” is not on your side. Nelson also reveals names of other phonies on the “right”. http://www.newswithviews.com/Nelson/kelleigh136.htm
Dr. Edwin Vieira has reminded us that the “necessary & proper” clause (Art. I, Sec. 8, last clause) vests in Congress the power to make all laws necessary & proper to execute its delegated powers. Since Article V delegates to CONGRESS the power to call the convention, Congress would be within its constitutional authority to organize the Convention anyway it wants, and to appoint whomsoever it wishes as delegates. http://www.newswithviews.com/Vieira/edwin262.htm
John A. Eidsmoe, a law professor who actually knows what he talking about, wrote a fascinating paper on all aspects of Article V: http://publiushuldah.files.wordpress.com/2014/01/a-new-constitutional-convention-by-john-a-eidsmoe.pdf Put this paper in your permanent files!
Do not be deceived by the “scholarly research” of former law professor, Rob Natelson. Natelson trumpets the fanciful theory that alleged “customs” practiced in our “Founding Era” provide binding principles which govern conventions called under Article V of our existing Constitution! But since we have never had an Article V convention, THERE IS NO PRECEDENT. Here is JWK’s excellent expose’ of Natelson’s preposterous theory: http://www.freerepublic.com/focus/bloggers/3062146/posts
Believe no one. You must check everything out for yourself. Our future hangs on your being able to tell the difference between Good and Evil. And on your caring about the difference.
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The Acceptance Con by Selwyn Duke explains (brilliantly) how moral relativism has destroyed our Country. Libertarianism carries within itself the seeds of Destruction. Oh, my Friends, take heed!
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“The sacred rights of mankind are not to be rummaged for among old parchments or musty records. they are written, as with a sunbeam, in the whole volume of human nature, by the hand of the divinity itself, and can never be erased or obscured by mortal power.”
Alexander Hamilton, “The Farmer Refuted”, February 5, 1775.
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“As democracy is perfected, the office of the President represents, more and more closely, the inner soul of the people. On some great and glorious day, the plain folks of the land will reach their heart’s desire at last, and the White House will be occupied by a downright fool and a complete narcissistic moron.”
H.L. Mencken, The Baltimore Evening Sun, July 26, 1920.
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“If the America People do not rise up and defend their Constitution and the intentions and beliefs under which it was adopted, who is left to do so but the very people who it was designed to control and regulate?” Johnwk
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“Any man who thinks he can be happy and prosperous by letting the Government take care of him, better take a closer look at the American Indian.” Attributed to Henry Ford.
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I saw a movie where only the military and the police had guns: Schindler’s List.
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“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.” Autobiography of Mark Twain
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PERMISSION to re-post: You may re-post my papers on your own sites, provided you do not change the text, retain all the hyperlinks, and have a link back to my website. However, since I periodically revise my papers, the better practice is to post a para or so and have a “continue reading here” which links to my site. That way, your readers will have the most recently revised edition.
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Where do Rights come from? God? The Constitution? The supreme Court? Or the “government”? I’ll show you. It is important that you understand. (videos in two parts totaling 22 minutes)
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To the Department of Homeland Security:
I am delighted to learn of your intense & increasing interest in learning the original intent of Our Constitution! Please feel free to browse around to your hearts’ content.
Also, if any of you have questions as to the original intent of any provision or provisions of Our Constitution, please feel free to post your questions.
To learn Our Constitution, you will need to get a copy of The Federalist Papers; and for word definitions, Webster’s 1828 Dictionary of the American Language. You can find The Federalist Papers on line; and here is an online copy of Webster’s 1828 Dictionary: http://webstersdictionary1828.com/
As I trust you know, word meaning are like the clouds: meanings change as time passes. So, naturally, we want to focus on the meanings enjoyed by Words during the Era of our Founding.
OK! Here is your homework assignment: Get a hard copy of The Declaration of Independence and our Constitution. Read them cover to cover. Using different colored pencils, highlight (1) the powers of Congress, (2) the powers of the Executive Branch, and (3) the powers of the judicial branch.
With a 4th color, highlight all references to God in both Documents!
Please pay particular attention to what the Declaration says about the SOURCE of our Rights. Mark that with a 5th color.
Surprising, isn’t it?
Oh! You can get pocket copies from the Cato Institute, the Heritage Foundation, etc. I think Heritage sells them in bulk – really cheap – so you can buy lots and distribute them to your co-workers, family and friends.
Again, do not be shy about posting your questions! I am just a little old lady, and do not bite.
Kindest regards, Publius Huldah.
Publius Huldah explains when Nullification of unconstitutional acts of the Legislative, Executive, or Judicial Branches of the federal government is required by Article VI, clause 3, U.S. Constitution.
- 10th Amendment
- 12th Amendment
- 14th Amendment
- 17th Amendment
- 1st Amendment
- 28th Amendment
- 2nd Amendment
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- Administrative Law
- Advice and Consent
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- Health Insurance – Auto Insurance analogy
- Heritage Foundation
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- Isaiah 33:22
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- Islamization (Islamification)
- Jarrett Stepman
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- Judicial Abuse
- Kentucky Resolutions of 1798
- Kevin Gutzman
- Madison's Notes on Nullification (1834)
- Madison's Report on the Virginia Resolutions (1799-1800)
- man made anti-rights
- Marbury v. Madison
- Marco Rubio
- Mark Levin
- marque and reprisal
- Martin Luther King
- Matthew Spalding
- Merchant Seamen healthcare
- Michael Farris
- Michael Seidman
- name calling
- National Popular Vote
- natural born citizen
- Necessary and Proper clause
- Nick Dranias
- Nullification by States
- nullification deniers
- nullification of obamacare
- Nullification of unconstitutional acts
- Nullification Resolutions
- Oath of Office
- Original and appellate jurisdiction
- Original Intent or Evolving Constitution?
- our sword and shield
- Parental Rights Amendment
- Patient Protection and Affordable Care Act
- Personal Responsibility
- Phony right wing
- Phyllis Schlafly
- Pledge of Allegiance
- prayer in public schools
- President's enumerated powers
- President's powers
- Presidential Electors
- prevailing dogma
- Progressive Education
- Randy Barnett
- re-writing the Constitution
- Recess Appointments
- Reserved Powers
- Resistance to tyranny
- Retained Powers
- Robert A. Levy Cato Institute
- Rule of Law
- Rulemaking by Executive Agencies
- safety nets for the poor
- Self Government
- Sell out Republicans
- Sen. Mike Lee
- Separation of Church and State?
- separation of powers
- shining city on a hill
- social safety nets
- social security
- South Carolina nullification crisis
- Sovereign States
- Spineless Republicans
- States Retained Powers
- States Rights
- Supremacy clause
- Supreme Law of the Land
- sweeping clause
- Tariff of Abominations
- Tarrif Act of 1828
- Tennessee Constitution
- Tenth Amendment
- Term Limits Amendment
- The Liberty Amendments
- The taxing clause
- The Tennessee Resolutions
- Thomas Jefferson
- Treaty Making Powers of the United States
- Troxel v. Granville
- UN Convention on the Rights of the Child
- UN Declaration of Rights
- under the law
- Usurpations of power
- Virginia Resolutions of 1798
- Voter eligibility
- Voter Qualifications
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- Mark Levin’s “Liberty” Amendments: Legalizing Tyranny
- Article V Convention: How “Individuals of Insidious Views” Are Stealing Our Constitution
- Balanced Budget Amendments (BBA) Gut Our Constitution And Don’t Reduce Spending
- Balancing the Budget? Or Adding A National Sales Tax To The Income Tax?
- Propaganda And The Conspiracy against Our Constitution
- The “Convention of States” Scam, the War over the Constitution, and how the States Sold the Reserved Powers to the Feds.
- Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!
- Restore The Constitution We Have By Learning What It Means!
- Impeachment: All you need to know (and you do need to know it).
- Parental Rights: God-given and Unalienable? Or Government-granted and Revocable?