Publius-Huldah's Blog

Understanding the Constitution

Refuting The Bad “Health Insurance – Auto Insurance” Analogy: A Lesson In Federalism.

Defending Our Constitution From Its Domestic Enemies.

By Publius Huldah

It has been said, even by some law professors, that Congress can force Americans to buy health insurance because …well, everybody knows that the “government” can force us to buy auto insurance.

Read on, and I will show you how such statements constitute a serious assault on “federalism” and our constitutional Republic. But first, let us hear from some of these professors.

Michael Seidman, professor of constitutional law at Georgetown University Law Center,  appeared on November 14, 2009 on Fox and Friends Saturday. He said, in support of his affirmative answer to the question, “Can Congress force Americans to buy health insurance?”,

…the government, ah you know, the government requires us to buy car insurance, it requires us to to engage in to buy the social security to buy uh social security insurance essentially… [transcribed to the best of my ability]

Nan Hunter, law professor at Georgetown’s O’Neill Institute for Global and National Health Law, gave the Introduction at a debate on October 26, 2009 between Professor Seidman and constitutional attorney David Rivkin.  The topic was “Are health care purchase mandates constitutional?”.  After describing Seidman as “one of the ah leading constitutional law scholars in the nation”, Hunter said,

…it is clear that government can mandate the purchase of private insurance before one engages in certain activities, for example, driving.  It can mandate the purchase of automobile insurance as a quid pro quo for ah legally being able to drive.  However, individuals can elect not to drive and therefore obviously not have to purchase auto insurance…

Timothy Stoltzfuz Jost, law professor at Washington and Lee University, participated in Politico’s September 18, 2009 forum on “Healthcare: Is ‘mandatory insurance’ unconstitutional?”.  Jost wrote that while the “claim” that “health reform” is unconstitutional is a “talking point” “pushed” by “Republicans”, “former Bush officials” such as David Rivkin, Fox News Commentator Andrew Napolitano, town hall attendees, and tea party demonstrators, “[i]t is not…an argument taken seriously by constitutional scholars.”  Jost went on to say,

The only plausible question is whether Congress has the authority under the Interstate Commerce Clause to require individuals to purchase health insurance. The primary difficulty here is that it is hard to think of a precedent where Congress (or for that matter the states, other than Massachusetts with its recent health care reforms) have required residents to purchase a particular product or service. Auto liability insurance mandates come to mind, but these are only imposed on persons who use the public roads.

Thomas J. Whalen, social science professor at Boston University, wrote on the Politico forum:

…the commerce clause seems sufficiently expansive enough [sic] to include mandatory health insurance for all Americans. After all, for some time now we’ve all been required to have auto insurance to operate our motor vehicles. And last time I checked, the Republic is still standing.

Apparently, Whalen is not a lawyer, though his biography informs us that he is an “expert”.   And Jost said i t was “…correct to invite…political experts to respond, because this is not a serious legal issue..”.

So!  While social science professors who agree with Jost are qualified to opine on this constitutional issue; “Republicans”, “former Bush officials” such as constitutional attorney David Rivkin, Judge Andrew Napolitano, town hall attendees and tea party demonstrators are most emphatically not. Their position, you see, is not “serious”.

By their invocation of the auto insurance analogy, such “expert” and “scholarly” professors as Seidman, Hunter, Jost and Whalen show that they have no understanding of “federalism”; or they think you don’t, and they are trying to take advantage of your supposed ignorance. So, is their metaphorical place under the dunce’s cap, or is it Antenora in the Ninth Circle?

What is “federalism”?  “Federal” refers to the form of our government:  An alliance of Sovereign States associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas.

James Madison, Father of the U.S. Constitution, illustrated “federalism” in Federalist No. 45 (9th para):

The powers delegated by the proposed Constitution to thefederal 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….[italics added]

Madison explained “federalism” again 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…[italics added]

And in Federalist No. 14 (8th para), Madison said:

… 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...[italics added]

This, Folks, is “federalism”:  The delegation by The People and their States of a few enumerated powers to the “federal” government; and THE RETENTION OF THE GENERAL POWERS – those which “concern the lives, liberties and properties of the people” – BY THE SOVEREIGN PEOPLE AND THEIR STATES.

Article I, Sec. 8, U.S. Constitution, shows that the enumerated powers delegated to the “federal” government are confined to war, a few aspects of commerce (strictly defined), immigration, delivery of our mail, and the establishment of a uniform commercial system (bankruptcy, a monetary system, punishment of counterfeiting, a standard of weights and measures, and issuance of patents and copyrights). That’s basically it!

As Madison said, it is the States which retain an “inviolable sovereignity” over “the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people”.  It is THE STATES which have required drivers to purchase auto insurance! The federal government has no authority under The Constitution to require us to buy any kind of insurance.

By saying that Congress can force you to buy health insurance because “the government” can require you to buy auto insurance, these “scholarly” and “expert” professors are  obliterating “federalism”.  Do they not understand what they are doing?  Or, are they trying to deceive you?

The concept of “federalism” is so easy to grasp that surely these professors can understand it.  After all, some non-lawyers among this writer’s contacts  – even those who attend tea parties and town hall meetings – seem to understand it quite well. PH

December 10, 2009


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December 10, 2009 Posted by | Federalism, Health Care, Health Insurance - Auto Insurance analogy, Michael Seidman, obamacare | | 23 Comments

“CLIMATE CHANGE” TREATY: The Supreme Law Of The Land? Or Lawless Usurpation?

By Publius Huldah.

If Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December 2009; and if the U.S. Senate ratifies it, will it become part of the “supreme Law of the Land”?

We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme Law of the Land”.  But is that true?  Not necessarily!  Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.

You must always ask: Is this authorized in the Constitution? Where in the Constitution? And precisely what is authorized by the Constitution?  Let us start at the beginning:

1.  Does the federal government have authority to make treaties? Can treaties be about any subject?  Or, are the proper objects of treaties limited by The Constitution?

Article II, §2, cl. 2, U.S. Constitution, says the President:

… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…

Article VI, cl. 2 says:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]

Thus, we see that the federal government is authorized to make treaties.  Now, we must find out whether there are limitations on this treaty making power.

2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word and phrase.  The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.

So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States”.

3.  From where do the President and the Senate get Authority to act?  From The Constitution!  The objects of their lawful powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”.

If the Constitution does not authorize the President or Congress to act on a subject, any Treaty on such subject would not be “Law” – it would be a mere usurpation, and would deserve to be treated as such (Federalist No. 33, 6th para).  Because the Constitution is “fundamental” law (Federalist No. 78, 10th &11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (Federalist No. 78, 9th para).

4.  In Federalist Paper No. 44 (7th para from end), James Madison says that [absent the “supremacy clause” at Art. VI, cl.2]  a federal treaty which violates a State constitution would have no effect in that State:

…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]

Madison thus illustrates the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist Papers on this point. So, let us turn to Thomas Jefferson, who says: 1

In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]

Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]

According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]

5. So!  We see from the above that the treaty making power of the United States is very limited.  What, then, are the proper objects of treaties?  To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do.  The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, §8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, §8, cl. 11).  The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, § 2, cl. 2).

The Federalist Papers discuss the treaty making power of the United States.  John Jay says treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th paras).  Madison says treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st & 3rd paras).

In addition, Art I, §8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.  Thus, The United States could properly enter into treaties respecting patents and copyrights.

6. Now, let us consider the proposed “climate change” treaty.  There is a draft agreement which, during December 2009, is to be put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?

To answer that Question, we must first ask:  Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty?  One wants to see the actual text, but it appears that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”.  There also seem to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”.  [By the way, from where does AlGore get them to sell?]

And just what, pray, are “greenhouse emissions”?  Primarily, carbon dioxide, methane, and water vapor.  Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me].  Methane: The gas which animals belch. All very easy to control:  Kill most of the people and most of the animals!  Shut down our remaining industries.  Stop the cars. Turn off the electricity.  Cut off supplies of propane.  Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!

So!  The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress?  Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?

The answer is NO!  Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States.  It would be a mere usurpation and would deserve to be treated as such.

Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties.  It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.

7. Finally: While obama may sign a “climate change” treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, §2, cl.2).  Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty?  But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):

… 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…

and Alexander Hamilton in Federalist No. 33 (5th para):

…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….

Read again the foregoing passages!  The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say.  Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!”  We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government.  And not only do we believe such nonsense, we repeat it to others.  And thus, we became part of the misinformation dissemination network.  In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis.  And then, we must learn to say, “They don’t have authority under The Constitution to do that!”  Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH

Endnote:

1 I originally obtained these Jefferson quotes from the University of Virginia webpage on Thomas Jefferson.  However, they have since reorganized their Jefferson pages, and no longer list quotes there.  I will have to find other online scholarly sources to these quotes.   Sorry for the inconvenience.

October 27, 2009; revised July 11, 2012

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October 27, 2009 Posted by | Climate Change Treaty, Supreme Law of the Land, Treaty Making Powers of the United States | , | 48 Comments

DOES THE “GENERAL WELFARE CLAUSE” OF THE U.S CONSTITUTION AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?

Defending The Constitution From It’s Domestic Enemies.

By Publius Huldah

CNSNews.com recently posted an article, “Hoyer Says Constitution’s ‘General Welfare’ Clause Empowers Congress to Order Americans to Buy Health Insurance”.  In the article, Steny Hoyer (Democrat House Majority Leader) said Congress has “broad authority” to force Americans to purchase health insurance, so long as it was trying to promote “the general welfare”.

Oh my! Does Steny Hoyer not know that his view was thoroughly examined and soundly rejected by our Framers?

The Truth is that Congress is NOT authorized to pass laws just because a majority in Congress say the laws promote the “general welfare”!  As shown below, James Madison, Father of The Constitution, and Alexander Hamilton, author of most of The Federalist Papers, expressly said The Constitution does not give a general grant of legislative authority to Congress!

Rather, ours is a Constitution of enumerated powers only. If a power isn’t specifically granted to Congress in The Constitution, Congress doesn’t have the power. It really is that easy – and our beloved Madison and Hamilton show us.

1. Let us look at the so-called “general welfare” clause:  Article I, Sec.8, clause 1, U.S. Constitution, says:

The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States…

Immediately thereafter, follows an enumeration of some 15 specific powers which are delegated to Congress. If you will spend 20 minutes carefully reading through the entire Constitution and highlighting the powers delegated to Congress, you will find (depending upon how you count) that only some 21 specific powers were delegated to Congress for the Country at large. This is what is meant when it is said that ours is a Constitution of enumerated powers!

2. But Steny Hoyer and his gang claim that the “general welfare” clause is a blank check which gives them power to pass any law they want which they say promotes the “general welfare”. Further, they claim the power to force their view of such on us.

3. Let us analyze this. Since words change meaning throughout time [200 years ago, “nice” meant “precise”], we must learn what the word, “welfare”, meant when the Constitution was ratified. “Welfare”, as used in Art. 1, Sec. 8, clause 1, 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 American Dictionary of the English Language, 1828).

But The American Heritage Dictionary of the English Language (1969), gave a new meaning: “Public relief – on welfare.  Dependent on public relief”.

Do you see how our Constitution is perverted when 20th century meanings are substituted for original meanings?  Or when the words of The Constitution are treated as if they have no meaning at all except that which the statists assign to them?

4. Both Madison and Hamilton squarely addressed and expressly rejected the notion that the “general welfare” clause constitutes a general grant of legislative power to Congress. In Federalist No. 41 (last 4 paras), Madison denounced as an “absurd” “misconstruction” the notion that

…the power “to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” amounts to an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare….

In refuting this “misconstruction”, Madison pointed out that the first paragraph of Art. I, Sec. 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. Madison also said:

…Nothing is more natural nor common than first to use a general phrase, and then to explain and qualify it by a recital of particulars. But the idea of an enumeration of particulars which neither explain nor qualify the general meaning, and can have no other effect than to confound and mislead, is an absurdity…

Madison was emphatic: He said it was “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; and to argue that the general expression provides “an unlimited power” to provide for “the common defense and general welfare”, is “an absurdity”.

In Federalist No. 83 (7th para), Hamilton said:

…The plan of the [constitutional] convention declares that the power of Congress…shall extend to certain enumerated cases. This specification of particulars evidently 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… [boldface added]

5. So!  It is clear from Madison and Hamilton that The Constitution does not bestow any general or unlimited grant of legislative power to Congress!

And what else did Madison and Hamilton say about the enumerated powers of the federal government?  In Federalist No. 45 (9th para), Madison said:

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….[boldface added]

Madison said it again 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 added]

In Federalist No. 14 (8th para), Madison said:

… 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 added]

In Federalist No. 27 (last para), Hamilton said:

…It merits particular attention in this place, that the laws of the Confederacy [the federal government], 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, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…[caps in original]

6. Now, let’s look at the 10th Amendment:

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.

Now, we can understand the true meaning of  the “general welfare” clause: OUR FOUNDERS UNDERSTOOD that the “general Welfare”, i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a civil government which was strictly limited and restricted in what it was given power to do!

7. So!  How did we get to the point where the federal government claims the power to regulate every aspect of our lives, including forcing us to buy health insurance?

Consider Prohibition:  During 1919, everyone 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 Amendment).

But with Franklin D. Roosevelt (FDR), the federal government abandoned our Constitution:  FDR proposed “New Deal” schemes; Congress passed them. At first, the Supreme Court opined (generally 5 to 4) that “New Deal” programs were unconstitutional as outside the powers granted to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal side, and the Court started approving New Deal programs (generally 5 to 4).

Since then, law schools don’t teach the Constitution. Instead, they teach Supreme Court opinions 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 the “general welfare” clause, along with the “interstate commerce” and the “necessary and proper” clauses, permit Congress to do whatever it wants!

Roger Pilon of the Cato Institute nailed it in his recent post on Politico.com:

Is it unconstitutional for Congress to mandate that individuals buy health insurance or be taxed if they don’t? Absolutely – if we lived under the Constitution. But we don’t. Today we live under something called “constitutional law” – an accumulation of 220 years of Supreme Court opinions – and that “law” reflects the Constitution only occasionally. [boldface added]

Now you see how the statists justify the totalitarian dictatorship they are attempting to foist upon the American People.  The statists and the brainwashed products of our law schools go by U.S. Supreme Court opinions which reject The Constitution!

But We the People can reverse this by insisting that the people in the federal government obey The Constitution, as explained by The Federalist Papers.

8.  And is the Supreme Court actually the ultimate authority on the meaning of our Constitution?

NO! Hamilton said the people are “the natural guardians of the Constitution”, and he called upon us to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No.16, next to last para).

Hamilton also told us in Federalist No. 33, 5th para:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. [boldface added]

Folks! Your duty is clear:  Study The Declaration of Independence, The Constitution, and The Federalist Papers. Live up to the expectations of Hamilton and Madison; and throw off the chains which the usurpers are forging for you and Our Posterity.

October 27, 2009; revised Jan. 26, 2012

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October 27, 2009 Posted by | General Welfare Clause, Health Care, obamacare | 46 Comments

Is Health Care a “Right”?

IS THERE A “RIGHT” TO MEDICAL CARE?

By Publius Huldah

What is the Source of “Rights”?

Do you have a “right” to medical care? Is medical care free? Does it grow on trees? If you don’t pay for your own medical care, do you have a “right” to get medical care at other peoples’ expense?  Do you have a “right” to have other people forced to pay for your medical care?

Let us walk through this important question to the clear answer.

What are “rights”?  Where do rights come from?  Are rights unalienable gifts from God?  Are rights inherent to our nature as humans?  Is the Bill of Rights (the first 10 Amendments to the U.S. Constitution) or the 14th Amendment the source of our rights?  Or, are “rights” entitlements to stuff which other people are forced to pay for?

Let us examine these four views on the nature of “rights”.

1. Our Declaration of Independence says Rights are unalienable and come from God:

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…

Because our Declaration of Independence, one of our three founding documents, refers to The Creator God as The Grantor of Rights, let us look to The Bible to see what those rights are.  The Bible reveals many rights, such as the right to inherit, earn, and keep property; the right of self-defense; the right to work in one’s chosen trade or profession; the right and duty to demand that the “king” adhere to the Covenant of civil government; the right to travel; the right to speak; the right to marry and raise children free from interference; the right to worship God; and so forth. The distinguishing characteristic of all these God-given rights is that each and every one of them may be held and enjoyed at NO expense or loss to any other person.

2. The Philosopher Ayn Rand saw rights as inherent to the nature of man; but thought God had nothing to with it.   John Galt said in Atlas Shrugged:

The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival.  If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work.  If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.  Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.

Thus, Ayn Rand also saw “rights” as attributes which may be held and enjoyed at no expense or loss to any other person.

3. Others say our rights come from the Bill of Rights, or from the 14th Amendment. But these are grievous and pernicious errors.

For one thing, Art. III,  Sec. 2,  clause 1,  says, “The judicial Power shall extend to all Cases…arising under this Constitution…”.   This means that if a “right” is seen to “arise under the Constitution”, then federal judges have judicial power over it!  Do you see that when judges have power over YOUR rights,  that your rights are no longer unalienable?  You now hold them only at the pleasure of five judges on the US Supreme Court!

Also, to say that the Bill of Rights “confers” our rights; or to discuss “the full scope” of any of the First Ten Amendments, constitutes a restriction on, and reduction of, the rights given by God. To say that the Bill of Rights is the source of our rights, diminishes them from their hallowed status as unalienable gifts from God, and transforms them into revocable privileges which we hold, or not, according to whether they are recognized in a document written by men; and according to the interpretations of judges!

Furthermore, Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary and dangerous because they contain exceptions to powers which are not granted.  They thus afford – to those disposed to usurp – a pretext to regulate those rights (The Federalist No. 84, 9th Para).  Well, our Hamilton was a prophet as well as a genius in political philosophy, for it has been demonstrated elsewhere how judges on the U.S. Supreme Court exploited the First Amendment’s promise of “free speech” and “free exercise of religion” to actually ban religious speech in the public square!

Equally pernicious is this: Judges on that same Court have asserted that the source of our “rights” is the Constitution, as such “rights” are defined and discovered, from time to time, BY THEM! It has been explained elsewhere how judges on that Court evaded the constitutional limitations on their power to hear cases [the cases they may hear are enumerated at Art. III, Sec. 2, clause 1]  by fabricating  individual  “constitutional rights”. In this manner, a handful of judges “discovered” “constitutional privacy rights” to engage in practices (abortion and sodomy) which had been outlawed by the States!

When we substitute the Constitution for God as the source of our rights, the entire concept of “rights” becomes perverted.  Literally.

Furthermore, The Constitution is about the Powers which We the People delegated to the three Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government!  Why would the creator of The Constitution (that’s us) grant to our “creature” (the federal courts), the power to determine, “discover” and define OUR Rights?

4. The statists and their dupes assert that rights come from “the government”. The statists are not concerned with protecting Life, Liberty and the Pursuit of Happiness! They love death: abortion, infanticide!, assisted suicide, euthanasia, and government “death panels” who decide who gets medical care and who does not – who lives and who dies. They hate private property.  They hate Liberty (as it has traditionally been defined in western civilization).  Productive men exist, not to pursue their own Happiness or to serve God; but to be plundered by civil government.

To statists, a “right” is a claim for stuff produced by, or paid for, by somebody else:  The “right” to medical care, the “right” to a public school education; the “right” to housing; the “right” to food stamps; etc.  But it is a contradiction in terms  – it is a perversion – to speak of  “rights” to stuff that is produced by, or paid for, by others!  To hold that people who produce exist to be plundered by civil government for the ostensible benefit of others is slavery.  Just as no one has the right to own another human being; so no one has the right to own the fruits of another man’s labors.

Folks! We need to face Reality and acknowledge that statists are not people with “good intentions”.

As stated in Our Declaration of Independence, we must insist that our rights come from God, are unalienable, and pre-date and pre-exist Our Constitution. PH

October 11, 2009; revised July 24, 2010.

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October 11, 2009 Posted by | Health Care, obamacare, Rights | 18 Comments

DOES THE “INTERSTATE COMMERCE” CLAUSE AUTHORIZE CONGRESS TO FORCE US TO BUY HEALTH INSURANCE?

By Publius Huldah

Bill O’Reilly of Fox News recently asked attorneys Megyn Kelly and Lis Wiehl whether Congress has authority under the Constitution to require us to buy health insurance. Wiehl said Congress has the power under the “interstate commerce” clause; but Kelly said it would take “days and weeks of research” to answer the question.

Let us see if we can walk through this question to the answer in five minutes. Article I, §8, clause 3, U.S. Constitution, says,

“The Congress shall have Power…To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

What does “regulate Commerce among the several States” mean?

First: What is “commerce”? Because words change meaning throughout time [“gay” once meant “jovial & lighthearted”], we must consult an old dictionary. Webster’s American Dictionary (1828) defines commerce as:

“…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.”

So!  “Commerce” is the buying and selling of goods.

Now, we must find out what “regulate Commerce among the several States” means. Two readily available authorities tell us:  The Federalist Papers, written during 1787-1788 by Alexander Hamilton, James Madison, and John Jay, in order to explain the Constitution to the People and induce them to ratify it; and The Records of the Federal Convention of 1787 kept by James Madison.

These authorities prove that the purposes of the “interstate commerce” clause are (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.

In Federalist No. 22 (4th  para), Hamilton says:

“The interfering…regulations of some States…have… given just cause of…complaint to others, and…if not restrained by a national control, would be multiplied… till they became… serious sources of animosity and… impediments to the intercourse between the different parts of the Confederacy. ‘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…”

In Federalist No. 42 (9th para), Madison says:

“…A very material object of this power [to regulate 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…”

See also Federalist No. 44 (8th para) and Federalist No. 56 (6th para), to the same effect.

Madison’s Records of the Federal Convention of 1787 show:

Thursday, August 16, 1787:

“…Mr. Madison. 1. the power of taxing exports is proper in itself, and as the States cannot with propriety exercise it separately, it ought to be vested in them collectively…3. it would be unjust to the States whose produce was exported by their neighbours, to leave it subject to be taxed by the latter. This was a grievance which had already filled [New Hampshire, Connecticut, New Jersey, Delaware, and N. Carolina] with loud complaints, as it related to imports, and they would be equally authorized by taxes by the States on exports…”

See also Tuesday, August 21, 1787 for Mr. Ellsworth’s comment that the power of regulating trade between the States will protect them against each other, and Tuesday, August 28, 1787 for Gouverneur Morris’ comment that the power to regulate trade between the States was necessary to prevent the Atlantic States from taxing the Western States.

So! The evidence is ample, clear and unambiguous!  Furthermore, five clauses in the Constitution: Art. I, §8, cl.1; Art. I, § 9, cl.5; Art. I, § 9, cl.6; Art. I, §10, cl.2; & Art. I, §10, cl.3, give express effect to these two purposes of the “interstate commerce” clause.

The clause is not a blank check for Congress to fill out any way it wants! In Federalist No. 45 (last para), Madison said the regulation of commerce was a power not held under the Articles of Confederation, but was an addition “from which no apprehensions are entertained”.   Ours is a Constitution of enumerated powers only!

But today, the clause is cited as authority for federal takeover of medical care! This redefinition of the clause resulted from a radical transformation in judicial philosophy. Two cases illustrate this transformation:

In Bailey v. Drexel Furniture Co. (1922), the Supreme Court reviewed a federal excise tax on profits from sales of child-made products. The Court said “the so-called tax is a penalty to coerce people of a State to act as Congress wishes them to act in respect of a matter completely the business of the state government under the Federal Constitution” (p 39), and:

“…Grant the validity of this law, and all that Congress would need to do, hereafter, in seeking to take over to its control any one of the great number of subjects of public interest, jurisdiction of which the States have never parted with, and which are reserved to them by the Tenth Amendment, would be to enact a detailed measure of complete regulation of the subject and enforce it by a so-called tax upon departures from it. …such…would…break down all constitutional limitation of the powers of Congress and completely wipe out the sovereignty of the States…” (p 38)

But in Wickard v. Filburn (1942), the Court said the “commerce clause” extends to local intrastate activities which “affect” interstate commerce, even if the activities aren’t “commerce”!  The Court also asserted that Congress has power to regulate prices of commodities and the practices which affect such prices!

Thus, if you have tomato plants in your back yard for use solely in your own kitchen,  you are “affecting” “interstate commerce” and are subject to regulation by Congress. The court’s reasoning is this: If you weren’t growing tomatoes in your back yard, you’d be buying them on the market. If you were buying them on the market, some of what you bought might come from another State.   So!  By not buying them on the market, you are “affecting” “interstate commerce” because you didn’t buy something you otherwise would have bought.   See?   And we have to stand up when these people walk into a room!

Charles Evans Hughes (Chief Justice,1930-1941) said the Constitution is “what the judges say it is.”

This is how the concept of a Constitution with an objective meaning easily learned from an old American dictionary, The Federalist Papers, & Madison’s Records of the Federal Convention of 1787, was taken away from us; and replaced with the judges’ claim that the Constitution is an evolutionary document which means whatever they say it means.

The reason it would take Megyn Kelly “days and weeks of research” to answer the question – instead of the five minutes it took us, is because she would search Supreme Court opinions to analyze the evolution of their “commerce clause jurisprudence” to try to figure out how they would answer the question.

They have taken our Constitution away from us. Let us demand its Restoration.

October 7, 2009; revised Nov. 14, 2014
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October 7, 2009 Posted by | Commerce clause, Health Care, Interstate Commerce Clause, obamacare | , , , | 98 Comments

Treaties: WHEN are they part of “the supreme Law of the Land”?

By Publius Huldah

If the U.S. Senate ratifies the U.N. Convention on the Rights of the Child, will it become part of the supreme Law of the Land?   If the Senate ratifies the “cap and trade” climate change treaty, will that become part of the supreme Law of the Land?

We hear it said that whenever the Senate ratifies a treaty, it becomes part of “the supreme Law of the Land”.  But is that True?  Not necessarily!  Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.

You must always ask: Is this authorized in the Constitution? Where exactly in the Constitution? And precisely what is authorized by the Constitution?

1.  Does the federal government have authority to make treaties?  Can treaties be about any object? Or, are the proper objects of treaties limited by The Constitution?

Article II, §2, cl. 2, U.S. Constitution, says the President:

“… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…”

Article VI, cl. 2 says:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” [emphasis added]

Thus, we see that the federal government is authorized to make treaties.  Now, we must find out whether there are limitations on this treaty making power.

2. It is a classic rule of construction (rules for understanding the objective meaning of texts) 1 that one must give effect to every word and phrase.  The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.

So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States“.

3.  From where do the President and the Senate get Authority to act?  From the Constitution. The objects of their lawful powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on an object before any Treaty made by them on that object qualifies as part of “the supreme Law of the Land”.  If the Constitution does not authorize the President and Congress to act on an object, the Treaty is not “Law” – it is a mere usurpation, and deserves to be treated as such. (Federalist Paper No. 33, last para).

Because the Constitution is “fundamental” law (Federalist No. 78, 11th & 12th paras), it is The Standard by which the legitimacy of all Presidential Acts, all Acts of Congress, all Treaties, and all Judicial Decisions is measured (Federalist No. 78, 10th para).

4.  In Federalist No. 44 (7th para from end), James Madison explains why it is necessary that Art. VI, cl. 2, provide that federal treaties have supremacy over State Constitutions.  Otherwise, a treaty which violates a State Constitution would have no effect in that State:

“…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others.” [emphasis added]

Madison thus illustrates the Principle that a treaty which interferes with the Constitution has no effect.  I found no other discussion in The Federalist Papers on this point.

So, let us turn to Thomas Jefferson, who wrote: 2

“In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. “–Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]

“Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.” –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]

“According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace.” –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]

5. So!  The treaty making power of the United States is very limited. What, then, are the proper objects of treaties?  To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do.  The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations … and with the Indian Tribes” (Art I, § 8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, § 8, cl. 11).  The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, §2, cl. 2).

The authors of The Federalist Papers address the treaty making power of the United States.  John Jay says treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th paras).  Madison says treaties also relate to sending and receiving ambassadors & consuls and to commerce (Federalist No. 42, 1st four paras).

There may be additional objects of the treaty making power authorized in The Constitution.  For example, Art I, § 8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries“.  Thus, The United States could properly enter into treaties respecting patents & copyrights. 3

6. Let’s look now at the proposed U.N. Convention on the Rights of the Child.  If ratified by the Senate, would it become part of “the supreme Law of the Land”?

To answer that Question, we must ask:  Does the Constitution grant to Congress the power to make laws respecting “children”?  Does the Constitution grant to the Executive Branch jurisdiction over “children”?

The answer to both questions is “NO!”  In addition, the 10th Amendment says if a power is not delegated to the United States by the Constitution, or prohibited to the States by Art. I, §10, it is reserved to the States or the people.  Thus, jurisdiction over “children” is reserved to the States or the people!  Accordingly, if the Senate were to ratify the U.N. Convention on the Rights of the Child, the treaty would NOT become part of “the supreme Law of the Land”, because it would not have been made under the Authority of the United States.  It would be a mere usurpation and would deserve to be treated as such.

If the Senate were to ratify the cap-and-trade “climate” treaty, which, among other things, would force energy companies to buy allowances or permits for their “carbon emissions”, would it become part of “the supreme law of the Land”?  You are now equipped to find the answer, and you can confidently defend it!

Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties.  It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.

7.  Finally, Thomas Jefferson points to a legislative remedy if the President and the Senate ignore the constitutional limits on the treaty making power of the United States. Thomas Jefferson says:

“…We conceive the constitutional doctrine to be, that tho’ the P. & Senate have the general power of making treaties yet whenever they include in a treaty matters confided by the constitution to the three [sic] branches of legislature, an act of legislation will be requisite to confirm these articles, and that the H. of Repr. as one branch of the legislature, are perfectly free to pass the act or to refuse it, governing themselves by their own judgment whether it is for the good of their constituents to let the treaty go into effect or not.” –Thomas Jefferson’s letter of March 21, 1796 to James Monroe [emphasis added] 4

“…I was glad … to hear it admitted on all hands, that laws of the U S, subsequent to a treaty, controul it’s operation, and that the legislature is the only power which can controul a treaty. Both points are sound beyond doubt.,,,” Thomas Jefferson’s letter of May 31, 1798 to James Madison. 5

What a man! And our system of checks & balances is an elegant one, indeed!

8.  Folks!  For too long, we have blindly accepted whatever we hear others say.  Someone on TV or the Internet says, “If the Senate ratifies this treaty, it will become part of the supreme Law of the Land!”  And not only do we believe it, we repeat it to others.  And thus, we became part of the misinformation dissemination network.  In order to restore our Constitutional Republic with its federal form of government, we must rediscover how to think and analyze. And then, we must boldly say, “They don’t have authority under The Constitution to do that!”

Endnotes:

1 Educators no longer teach “rules of construction”, because it has become the dogma of our time that texts have no “objective meaning” to be discovered.  Instead, each person is to come up with his own “understanding” – and one person’s “understanding” is as good as another’s.  Someone recalled the following incident which occurred in his high school English class during 1960:  The class read a short story, and then the teacher asked each student to say what the story meant to him.  Whatever a student said was praised by the teacher.  But when it was my friend’s turn, he said:  “It doesn’t matter what it means to me – what matters is what the author meant.”  The teacher was not pleased with this ‘out of place’ comment.  Is it any wonder many judges feel free to “understand” the Constitution any way they please?  They were conditioned in school to “think” this way; and they did not resist the conditioning.

2 I copied these quotes from another site – but as you see, they don’t link to original source documents. As I find time [ha!], I’ll look for the original source documents.

3 It has been said that Charles Dickens’ works were pirated, printed and sold in these United States without paying any royalties to Dickens!  A copyright treaty with Great Britain would have discouraged this theft of Dickens’ intellectual property.

4 Jefferson’s letter to James Monroe is HERE, at pages 229-230.

5 Jefferson’s letter to James Madison is HERE, at pages 427-429 [same book as above]

September 18, 2009; revised July 11, 2012; October 8, 2019.

September 19, 2009 Posted by | Climate Change Treaty, Treaty Making Powers of the United States, UN Convention on the Rights of the Child | , | 48 Comments

CONGRESS’ ENUMERATED POWERS

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 aboutthe 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 aboutthe 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

Endnotes:

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

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September 8, 2009 Posted by | Elastic clause, Enumerated Powers of Congress, General Welfare Clause, Interstate Commerce Clause, Necessary and Proper clause, sweeping clause | , , , , , | 158 Comments

What Criminal Laws are Congress Authorized To Make?

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”. [1] 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, [2] 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. [3]

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. [4] 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). [5] One expects Hamilton would be disappointed in “the People” of today. [6] 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


[1]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.

[2] 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.

[3] 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.

[4] 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.

[5] 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?

[6] 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).

Postscript added June 16, 2015:
Hat tip to my FB Friend, Richard Storm:

Watch this video and listen carefully from the 2.50 minute mark to 3:20.  That sums it all up:  https://www.youtube.com/watch?v=_voVdVnvw_I&feature=share

June 29, 2009; revised April 16, 2011

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June 29, 2009 Posted by | Criminal Code (US), Enumerated Powers of Congress, Necessary and Proper clause | 37 Comments

What are the Enumerated Powers of the Federal Courts?

The Judicial Power of the Federal Courts.

By Publius Huldah.

1. “Judicial Power” refers to a court’s power to hear and decide cases. Art. III §2, U.S. Constitution, lists the cases which federal courts are permitted to hear. They may hear only cases:

a) Arising under the Constitution, or the Laws of the United States, or Treaties made under the Authority of the United States [1] [“federal question” jurisdiction];

b) Affecting Ambassadors, other public Ministers & Consuls; cases of admiralty & maritime Jurisdiction; or cases in which the U.S. is a Party [“status of the parties” jurisdiction];

c) Between two or more States; between a State & Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States;[2] or between a State (or Citizens thereof) & foreign States, Citizens or Subjects[3] [“diversity” jurisdiction].

These are the ONLY cases which federal courts have constitutional authority to hear! Alexander Hamilton wrote in Federalist No. 83, 8th para:

…the judicial authority of the federal judicatures is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction, because the objects of their cognizance being enumerated, the specification would be nugatory if it did not exclude all ideas of more extensive authority. [emphasis added]

In Federalist No. 80, Hamilton commented on each of these itemized “proper objects” of judicial authority. But here, we will consider only cases “arising under the Constitution”, which concern “the execution of the provisions expressly contained in the articles of Union” (2nd para). [4]

2. Consider State laws criminalizing abortion or homosexual conduct.  Are these “proper objects” of the judicial power of the federal courts?  Do these laws fit within any of the categories of cases which federal courts are authorized to hear?  No, they don’t! Nothing in the Constitution forbids States from criminalizing abortion or homosexual conduct!  The federal courts have no “federal question jurisdiction”, no jurisdiction based on status of the parties, and no “diversity jurisdiction” to hear such cases!

But the federal courts have evaded the constitutional limits on their power to hear cases by fabricating individual “constitutional rights” so that they can then pretend that the cases “arise under the Constitution”!

Thus, in Roe v. Wade (1973) http://supreme.justia.com/us/410/113/case.html seven judges on the U.S. Supreme Court said a

right of privacy…founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action (p. 153)

makes unconstitutional State laws making abortion a criminal offense! These seven judges just made up a “constitutional privacy right” which they said prohibits States from outlawing abortion!

In Lawrence v. Texas (2003) http://supreme.justia.com/us/539/558/case.html six judges on the U.S. Supreme Court said a Texas Law criminalizing homosexual conduct was unconstitutional because it violated practitioners’

…right to liberty under the Due Process Clause (p.578)…of the Fourteenth Amendment (pp. 564, 579).

But nothing in our Constitution prohibits the States from making laws declaring abortion or homosexual conduct to be crimes!  Nothing in our Constitution grants “rights” to individuals to engage in these practices!

3. But federal judges used the 14th Amendment as a blank check to prevent the States from outlawing conduct which the federal judges want to legalize.  They simply make up a “constitutional right” to do those things.  Under their view, there is no limit to their powers! States criminalize child rape, but 5 judges on the Supreme Court can fabricate a “constitutional right” to have sex with children – a “liberty & privacy right” in the 14th Amendment to have sex with children!  If these “liberty & privacy rights” mean that women can abort babies & homosexual conduct is fine; why can’t they also mean that adults can have sex with children?  Why can’t they mean that people have “liberty & privacy rights” to use crack cocaine & heroin?  What’s the limit?  There IS no limit! Anthony Kennedy, who wrote the majority opinion in Lawrence v. Texas,  said:

…As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. (p. 579)

Kennedy just tossed Art. III §2 out the door!  He and his ideological allies recognize no limits on their power!  Just name an act you want legalized and if 5 of them agree, Voila! A new “liberty” “right”!  And a State law prohibiting that act bites the dust.  And since federal judges also claim the right to “set policy” for all of these United States, and we have let them do it, State laws throughout the land prohibiting that act bite the dust.  And that is how we got a handful of un-elected judges setting “policy” for everyone in the country.

4. Abortion, homosexual conduct, prostitution, child sex, drugs, etc. are issues for The People of the several States to decide (subject to any restrictions imposed by their respective State Constitutions).  Congress is not authorized to make laws on these subjects, and these are not listed as “rights” in the U.S. Constitution.

5. What does the due process clause of the 14th Amendment really mean?  Professor Raoul Berger’s meticulously researched book, Government by Judiciary: The Transformation of the Fourteenth Amendment [5] proves that the purpose of the 14th Amendment was to protect freed slaves from southern Black Codes which denied them basic rights of citizenship.  In Ch. 11[6], Berger discussed the meaning of the “due process” clause of the 14th Amendment:

…nor shall any State deprive any person of life, liberty, or property, without due process of law…

The clause, “due process of law” is a term of art with a well-known & narrow meaning [7] going back to the Magna Charta!  It means that a person’s Life, Liberty or Property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial! Specifically, that freed slaves could not be punished except pursuant to the judgment of their peers after a fair trial where they could appear, cross-examine witnesses and put on a defense! “Life” meant “life” as opposed to being lynched; “liberty” meant being out of prison instead of in prison; and “property” meant the person’s possessions.

6. So! We see that the federal judges have redefined “Liberty”. To them, “liberty” is freedom from moral restraints; they do not see “liberty” as freedom from coercive civil government. They have no problem with making us objects to be plundered & controlled by the federal government!  They have no problem with suppressing our religion & silencing our speech.  They have no problem with imposing their values & radical conception of “liberty” on us.

But Professor Berger proves that the framers of the 14th Amendment did not understand “Liberty” as freedom from moral restraints.  The purpose of the due process clause of the 14th Amendment was to protect freed slaves from being put to death, imprisoned, or having their stuff taken away except pursuant to the judgment of their peers after a fair trial!

7. When federal judges redefine terms in the Constitution, they “amend” the Constitution in violation of Art. V.  Article V. sets forth the two lawful methods of amending the Constitution, neither of which is “redefinition by judges”.

8. Are there remedies for this judicial lawlessness?  YES! Congress should use its Impeachment Power to remove the usurping judges.  How many times have you heard they have “lifetime appointments”?  They don’t!  The only reason it ends up that way is because our representatives in Congress are ignorant & lack the Will to do the right thing.  Alexander Hamilton addressed judicial usurpations & the judiciary’s “total incapacity to support its usurpations by force” in The Federalist No. 81, 9th para:

the important constitutional check which the power of instituting impeachments in one part of the legislative body [House], and of determining upon them in the other [Senate], would give to that body [Congress] upon the members of the judicial department.  This is alone a complete security. There never can be danger that the judges, by a series of deliberate usurpations on the authority of the legislature, would hazard the united resentment of the body intrusted with it [the impeachment power], while this body [Congress] was possessed of the means of punishing their presumption by degrading them from their stations. While this ought to remove all apprehension on the subject it affords, at the same time, a cogent argument for constituting the Senate a court for the trial of impeachments [some had said impeachments should be tried in the supreme court]. [italics added]

Folks, ignorance & misinformation will do us in if we don’t learn the Truth pretty soon. “Everybody” says judges have “lifetime appointments”, & we believe it.  Well, now YOU know that federal judges can be impeached, convicted & kicked off the bench for usurping power!  We hear that “The Rule of Law” requires us to go along with all court decisions.  That is a Lie!  If the decision is based on an usurpation, the Rule of Law requires us to spit on the decision and demand that the judges be impeached & removed from the bench.

9. Finally, a word about our Rights:  The Constitution is about the Powers which We the People delegated to the 3 Branches of the Federal Government. It is NOT about Our Rights, which come from God, are unalienable, & predate the Constitution! We created the Constitution & the federal government!  Why would the Creator (that’s us) grant to our “creature” (the federal courts), the power to determine & define OUR Rights?

Alexander Hamilton opposed adding a Bill of Rights to the Constitution. He said they were unnecessary & dangerous because they contain exceptions to powers which are not granted.  Thus, they afford a pretext to regulate those Rights (The Federalist No. 84, 10th Para).  Hamilton was a prophet as well as a genius in political philosophy.

Today, we have been conditioned to believe that the source of our “Rights” is the Constitution, as defined & “discovered”, from time to time, by unelected federal judges.  But D.C. v. Heller (2008) http://supreme.justia.com/us/554/07-290/ which upheld private ownership of guns, was a 5 to 4 decision!  One vote switched to the other side, and the Supreme Court will rule that we have no right to bear arms.

THIS is what happens when we substitute the Constitution for God as the Source of our Rights.  You must always insist that your Rights to Bear Arms – to defend yourself – are unalienable and come from God, not the Second Amendment!  Don’t forget that We had that Right before the Constitution was ratified.  The same principle applies to all of our Rights.  If, like the Declaration of Independence, we insist that they come from God and are unalienable, no human court or legislative body can take them away from us.

Publius/Huldah (June 22, 2009; revised July 16, 2010)


[1] Since ours is a Constitution of delegated & enumerated Powers, the U.S. must be authorized by the Constitution to act on a subject before any Treaty on that subject qualifies as part of the “supreme Law of the Land” (Art. VI, cl.2).

[2] Hamilton said this is the only instance in which the Constitution contemplates the federal courts hearing cases between citizens of the same State. The Federalist No. 80 (3rd Para from end).

[3] The 11th Amendment (ratified 1795) withdrew from the federal courts the power to hear cases filed against one of the States by Citizens of another State or by Citizens or Subjects of any foreign State.

[4] Hamilton gave examples: If a State violates the constitutional provisions which prohibit States from imposing duties on imported articles, or from issuing paper money [Art. I, §10], the federal courts are in the best position to overrule infractions which are “in manifest contravention of the articles of Union. [i.e., Constitution]” (3rd Para).

[5] Prof. Berger retired in 1976 as Senior Fellow in American Legal History, Harvard University. His book is at http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=675&Itemid=28 It is fascinating!

[6] Here is the link to Ch. 11.  Read it!  You will then know more about “due process” than most federal judges! http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106938&layout=html&Itemid=27

[7] http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=675&chapter=106887&layout=html&Itemid=27

June 22, 2009
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June 22, 2009 Posted by | 14th Amendment, Article III Courts, Article III, Sec. 2, Enumerated Powers of Federal Courts | 36 Comments

Where do “Rights” come from? What is “federalism”? Does our Constitution “evolve”? What’s a “Republic”? What is the function of a constitution?

BASIC CONCEPTS OF “GOVERNMENT”

By Publius Huldah

Think NOT that you must have a law degree to understand the Constitution of the United States; or that the lawyers, law professors and black robed judges are the ones who understand it best.  They are the ones who perverted it.  To restore constitutional government, We the People must learn the basic concepts of  “government”; and we must learn the Constitution, elect representatives who will honor their oaths to support it (Art VI, clause 3), and remove from office those who don’t.

The Constitution is a short document which anyone – who makes a reasonable effort – can understand quite well.  You need  (1) The Declaration of Independence, (2) The Constitution, and (3) The Federalist Papers.   The latter is a collection of 85 essays written for the public by Alexander Hamilton, James Madison, and John Jay, and published during 1787 and 1788, in order to explain the proposed Constitution to the People and to induce them to ratify it. [1] Also, since word meanings can change drastically throughout time [2], if we are to understand the objective meaning of the Constitution – the original intent – we must understand the words the same way the founders understood them.  An American Dictionary of The English Language, Noah Webster (1828), in available on-line here.

1.  The function of a Constitution is to create a civil government and define its powers:

…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. (Webster’s 1828)

2.  “Federal” refers to the form of our government:  An alliance of States with close cultural and economic ties associated together in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas. [3]

3.  A “republic” is “a state in which the exercise of the sovereign power is lodged in representatives elected by the people…” (Webster’s 1828).   A “constitutional republic” is a state in which the representatives (and other officials) are limited and restricted by a constitution.  This country was established as a constitutional republic.

4.  A “democracy” is two wolves and one sheep voting on what to have for dinner.

5.  Decentralization:  In a free country, government is decentralized: there exist various kinds of government, each with their own sphere of operation.   Webster’s (1828) lists three: “self-government” – man’s control and restraint over his own temper, passions, and social actions; “family government” – parents’ authority over their children and other family matters; and civil government – the form of, and the rules and principles by which a nation or state is governed.

There is also government in religious associations (e.g., Mat 18:15-17); charities; professional, trade, and sports associations (in earlier times, these set the standards and handled the discipline for their members); and other voluntary organizations with their own rules and requirements.

But in a totalitarian country, the civil government eliminates the other forms of government so that its power is unchallenged in all spheres of life:

a) Our national government is eliminating self-government by taking away the responsibility of individuals to act morally and responsibly in the conduct of their own affairs.  Not only does it force individuals to participate in government retirement and medical programs – matters which in the past were considered to be individual and family responsibilities; it now, with respect to daily  expenses,  “bails out” the least responsible at the expense of the more responsible!  We are no longer required to govern ourselves: We may sit around, indulging in blame shifting, excuse-making and nursing grievances, and the government pays our living expenses!  As individuals, we have abandoned self-discipline altogether – we abuse our own health with our excesses and bad habits!

b) It is eliminating family government by dictating as to the discipline and education of children, and insisting that minor children may obtain abortions without their parents’ knowledge or consent!   Matters that were, in the past, treated as family responsibilities  (financial and other assistance to family members; education of children, care of aging parents, etc.)  have been taken over by civil government.   We no longer look to our families for assistance – we look to the civil government!  Is it any wonder we now consider the president as “the one” to “save” us?

c) Previously, churches were the moral authorities in our country.  But the national government has eliminated that moral authority!  Even though the modern “welfare” state is based on Coercion & Looting & Distribution of Plunder to favored groups – the legalization of Envy & Theft [4] – the Pastors dare not speak out against it – they have been silenced by the 501 c (3) tax exemption.   So we have been deprived of the benefit of their moral guidance on issues affecting our country – that’s what the national government demands!   So the churches are restricted to speaking on saving souls,  “escape” or “rescue” from this Earth, what happens when we’re dead, and other such matters that don’t challenge Caesar’s sovereignty on Earth.  For Caesar claims that the Earth and everything on it belongs to him!

d) Charity is properly the work of individuals, churches, and private associations.   Some, such as The Salvation Army, provide Christian instruction along with assistance.  But a totalitarian government will not tolerate this challenge to its total power; so it now speaks of reducing the tax deduction for charitable giving.   As economic conditions worsen, charitable giving will decline; private charities will diminish, but the national government seeks always to expand.

e) The state governments have taken over the licensing and disciplining of the trades and professions; and Congress conducts hearings on whether sports figures take steroids!

6.  Decentralization & Local Governments:  In a free country, civil government itself is decentralized – we have city governments, county governments, and state governments, as well as the federal government.  Each local government has its own constitution that defines its powers & duties.

When speaking of the national government, do not confuse its few powers – those enumerated in the U.S. Constitution – with the more extensive powers that may be granted to State and local governments in their constitutions.   James Madison wrote in Federalist No. 45 (9th paragraph):

The powers delegated by the proposed Constitution to the federal government are few and defined. Those that 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….

So, do you see?  The federal government isn’t supposed to have anything to do with our lives, liberties and properties except as follows:  Other than those in military service, it has no lawful criminal jurisdiction over us except as described here; it has no civil jurisdiction over us unless we file for bankruptcy; if we are inventors or writers, it secures for us the rights to patents & copyrights; it makes rules for naturalizing new citizens, and it delivers our mail!  (Art I, Sec 8 & Art III, Sec 3, U.S. Constitution)  That’s basically it, Folks!

So mortgage bailouts, medical care, pensions, family matters, education, housing, food stamps, tattoo removal, “community redevelopment”, light bulbs, and the like, are NONE OF THE FEDERAL GOVERNMENT’S BUSINESS!   The local governments, if the People have authorized such in the local constitution, may address such matters.  But the only areas in which the federal government may lawfully act are those enumerated in the U.S. Constitution.

7.  In a free country, civil government is restrained – it is limited by the constitution in what it is allowed to do. But in a tyranny, those who hold power do whatever they want – they know no law but their own ideas, whims, self-interest, self-glorification, and lust for power.  Webster (1828) defines “govern”:

To direct and control…either by established laws or by arbitrary will…Thus in free states, men are governed by the constitution and laws; in despotic states, men are governed by the edicts or commands of [a tyrant]…. [5]

WE the People created the national government when We, as  States, ratified the Constitution.  WE determined its powers and duties and enumerated those powers and duties in the written Constitution.   None of the three branches of the national government:  neither the Legislative, nor the Executive, nor the Judiciary, may do ANYTHING unless WE first gave it permission in the Constitution.   WE are the Creators; those in the national government, be they Senators, Representatives, federal judges, or the President, are mere creatures.  Alexander Hamilton said in The Federalist Papers, No. 33, (6th paragraph):

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 [the Constitution], and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. [emphasis added]

Our Constitution is the Supreme Law of the Land (Art VI, cl.2); and anything contrary to our Constitution is lawlessness – no matter who in office or on the bench does it.

8.  Should we understand our federal Constitution the same way our founders did (“original intent”)?  Or, does its meaning “evolve” throughout time, so that it “means” whatever the gang in power (at any point in time) says it means?

a) One side – the “strict constructionists” or “originalists” – say the Constitution has a fixed meaning, and we must look at the original intent of the Constitution.   We easily learn this original intent by understanding the words the same way our founders understood them [e.g., Webster’s 1828 Dictionary] & by referring to The Federalist Papers and other original source documents. [6]

b) The other side (composed primarily of activist judges, totalitarian leftists and people who don’t think) say the Constitution has no fixed meaning.  They say it is an “evolving”, “living, breathing” thing that means whatever the judges, from time to time, say it means [7] or, like Congress and many of our presidents, ignore it altogether.

And just how do we learn what the judges say the Constitution means?  Well, you really have to go to law school and learn how to do legal research; how to read judicial writing (which is often intended to conceal the judges’ complete lack of intellectual honesty); and how to construe conflicting court decisions.  Then, you usually end up going with the court’s latest pronouncement (once you have located it) – knowing full well that it may change when a new gang gets on the bench. [8]

Obviously, under the second view – we don’t have constitutional government.  Instead, the judiciary, the Congress, and the Executive Branch impose their unfettered wills on us; and THIS is how we have been transformed from a “free state” where we were governed by the constitution and laws; into a despotic state, where we are governed by the edicts or commands of judges, congressmen & senators, presidents, and meddlesome federal agencies.

9. What are “Rights” and where do they come from?  Are rights unalienable gifts from God?  Are rights inherent to our nature as humans?   Is the Bill of Rights (the first 10 Amendments to the U.S. Constitution) the source of our rights?  Are “rights” entitlements to stuff paid for by other people?

a) Our Declaration of Independence says our Rights are unalienable and come from God:

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… [9]

b) The Philosopher Ayn Rand correctly saw rights as inherent to the nature of man; although she thought God had nothing to with it.   In John Galt’s speech (Atlas Shrugged), he said:

The source of man’s rights is not divine law or congressional law, but the law of identity. A is A—and Man is Man. Rights are conditions of existence required by man’s nature for his proper survival.  If man is to live on earth, it is right for him to use his mind, it is right to act on his own free judgment, it is right to work for his values and to keep the product of his work.  If life on earth is his purpose, he has a right to live as a rational being: nature forbids him the irrational.  Any group, any gang, any nation that attempts to negate man’s rights, is wrong, which means: is evil, which means: is anti-life.

c) Others say that our rights come from the Bill of Rights.  But this too is a pernicious error.  To say that the Bill of Rights “confers” our rights; or to discuss “the full scope” of any of the First Ten Amendments, constitutes a restriction on, and reduction of, the rights given by God.  To say that the Bill of Rights is the source of our rights, diminishes them from their proper status as unalienable gifts from God, and transforms them into privileges which we hold, or not, according to whether they are recognized in a document written by men; and according to the interpretations of judges!

d) The statist view is that rights come from “the government”.   The statists are not concerned with Life, Liberty and the Pursuit of Happiness! [10] To them, a “right” is a claim for stuff paid for by somebody else:  The “right” to a public school education; the “right” to medical care; the “right” to housing; etc.  But it is a contradiction in terms  – it is a perversion – to speak of  “rights” to stuff that is produced by, or paid for, by others!  To hold that people who produce exist to be plundered by civil government for the ostensible benefit of others is nothing less than slavery.  Just as no one has the right to own another human being; so no one has the right to own the fruits of another man’s labors.

10. The U.S. Constitution is the document that created the national government. [11] When the People through their States ratified the Constitution, the People and the States did not lose their status as independent sovereigns who would be capable of corrective action if the national government were to exceed the powers granted to it.

Except for those few powers (primarily relating to national defense & other external objects) that the People and the States specifically delegated to the national government, the People and the States remain independent and sovereign.

Furthermore, the Tenth Amendment to the Constitution states:

The powers not delegated to the United States by the Constitution, nor Prohibited by it to the States, [12] are reserved to the States respectively, or to the people.

So when the “creature” usurps powers not granted in the Constitution, the “Creators” are not bound by the usurpations.  Those usurpations are, by definition, lawless.   When this happens, the States have the Right and the Duty to rein in their creation – for the creature has become Frankenstein.

Tenth Amendment Resolutions, nullification by States, Jury nullification, etc.  are lawful, consistent with our Constitution, and if properly implemented, can restore our Constitutional Republic with its federal form of government!  That, instead of a totalitarian dictatorship with a populace forever crushed with debt, is the Blessing we want to leave our Posterity.

Endnotes:


[1] The authors’ 18th century style of writing might seem difficult at first; but if you stick with it, you will get used to it, and may come to find it delightful.

[2] E.g., “mean” used to mean “poor”; “nice” used to mean “precise, exact”; “gay” used to mean “jovial, merry”, etc.

“Welfare” as used in the Preamble & in Art I, Sec 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), adds a new meaning:  “Public relief” – on welfare. Dependent on public relief”.  Do you see how our Constitution is perverted when 20th century meanings are substituted for the original meanings?

[3] As the national government usurps more & more of the powers retained by the States or the People, the form of our government becomes less & less “federal”, and more & more “national”.

[4] See Frederic Bastiat’s short & easily understood work, The Law (1848), which is without a doubt, the best thing to ever come out of France.  A magnificent refutation of socialism.   On-line English ed. at bastiat.org

[5] In the classic work on political philosophy,  Lex, Rex, or The Law And The Prince, Samuel Rutherford (1644), Rev. Rutherford sets forth the biblical model wherein the king is subject to the Law to the same extent as the citizens: e.g., Deut 17:18-20; 2 Kings 22:8-13; 23:1-3.   THIS is what “The Rule of Law” means – when the “king” is under the Law.   When the “king” claims that he is above the law, then we have “the Rule of Men” – i.e., tyranny.

Contrast Rutherford’s model, which the drafters of our Constitution followed, with that of the German philosopher Georg Wilhelm Friedrich Hegel (1770-1831), who glorified the state and saw it as superior to the people.  THAT is the political philosophy that gave rise to German statism, the Third Reich, and Hitler worship.  That is the model which is rapidly taking over the minds of the American People.

[6] It’s fast & easy:  With an annotated copy of the Constitution, you look up the Federalist Paper cited, skim through it until you get to the relevant passage, and in a few minutes, you usually can know the original intent.  You then know more than our judges know!  Congratulations!  [But sometimes we also have to refer to other contemporaneous works.]

[7] Thus, instead of the judges being subject to the Constitution; the Constitution is subject to the will of the judges.

[8] Franz Kafka’s novel, The Trial (1937), describes an arbitrary and incomprehensible legal system where the peoples’ access to The Law is cut off.   “Before the Law, stands a door keeper… “.  The hero of Kafka’s novel couldn’t get past the doorkeeper and so was denied access to The Law.   Folks, that’s what our courts – the doorkeepers – are doing to us.  The U.S. Constitution is the supreme Law of the Land (Art VI, cl. 2); but the Courts have taken it away from us and won’t give it back! The Trial is on-line in English translations from the German.

[9] The Bible reveals additional rights bestowed on us by God, such as the right to inherit, earn, & keep property; the right of self-defense; the right & duty to demand that the “king” adhere to the Covenant of civil government; etc.  The distinguishing characteristics of all these God-given rights are (1) they are necessary for man to exist as man and (2) they may be held and enjoyed at NO expense or loss to any other man. (Ayn Rand was 100% right on these points.)

[10] They love death: abortion, assisted suicide, and euthanasia.  They hate private property.  They hate Liberty.  Productive men exist, not to pursue their own Happiness or to serve God; but to be plundered by civil government.  Folks, we need to face Reality and acknowledge that these are not people whose “intentions” are “good”.

[11] It is important that you always keep at the front of your mind:  The national government is a creation of the People & their States.  The People & their States are the Creators – the national government is merely the creature.

[12] Art I, Sec 10 prohibits the States from exercising powers specifically delegated to the national government, and from passing those obnoxious laws which are inimical to a free country such as Bills of Attainder, ex post facto Laws, laws  impairing the Obligation of contracts, or granting Titles of Nobility.

June 20, 2009; revised July 23, 2020.

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June 20, 2009 Posted by | Basic Concepts, Decentralization of government, Definitions and Basic Concepts, Federalism, Original Intent or Evolving Constitution?, Rights, Self Government, Totalitarianism | , , , , | 17 Comments

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