Publius-Huldah's Blog

Understanding the Constitution

Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.

By Publius Huldah

Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.

But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.

1. First Principles

Let’s analyze COSP’s silly argument. We begin by looking at First Principles:

♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1

♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2

Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4

 

2. Supreme Court Opinions are not “the Law of the Land”

Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!

Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.

So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.

 

3. Organic & statutory law and the totally different “common law” precedent followed in courts

Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.

Organic Law

Black’s Law Dictionary defines “organic law” as

“The fundamental law, or constitution, of a state or nation, written or unwritten; 5 that law or system of laws or principles which defines and establishes the organization of its government.”

The organic laws of the United States are

  • The Declaration of Independence – 1776
  • Articles of Confederation – 1777
  • Ordinance of 1787: The Northwest Territorial Government
  • Constitution of the United States – 1787

The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].

Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?

Statute Law

Black’s Law Dictionary defines “statute law” as the

“Body of written laws that have been adopted by the legislative body.”

As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.6

Common Law

The “common law” applied in courts in the English-speaking countries came from the Bible.7 The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. 8

THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. 9 As precedent for judges to follow, it is never “the law of the land”!

So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.

Now let’s look at the constitutional jurisdiction of the federal courts.

 

4. What kinds of cases do federal courts have constitutional authority to hear?

The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. 10

The first category is cases “arising under this Constitution”. In Federalist No. 80 (2nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3rd & 13th paras).

So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.

Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.

So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! 11

Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.

 

5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear

Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:

The original intent of §1 of the 14th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. 12

Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes 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.

But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. 13

And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14th Amendment! [ibid.]

The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.

The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.

And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”

 

6. What are the remedies when the Supreme Court violates the Constitution?

The opinions of which the convention lobby complains constitute violations of our Constitution. 14 The three remedies our Framers provided or advised for judicial violations of our Constitution are:

1. In Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.

2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.

3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.

Endnotes:

1Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution).

2Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.

3 Madison’s Virginia Report of 1799-1800 (pp 190-196).

4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and

“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”

It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.

5 It is said England doesn’t have a written constitution.

6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:

“…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; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]

See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10th para).

7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.

8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.

9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.

10 In Federalist No. 83 (8th para), Hamilton says:

“…the…authority of the federal …[courts]…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…”

11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:

“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”

12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.

13 In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:

“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”

14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.

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November 25, 2018 Posted by | 14th Amendment, 3000 page constitution, Abortion, annotated constitution, Article V Convention, common law, Convention of States project, Creature of the Compact, due process clause, Enumerated Powers of Federal Courts, federal judges, Judicial Abuse, Law of the Land, Nullification, organic law, precedents, Publius Huldah, Roe v. Wade, statute law, The Judicial Branch | , , , , , , , , , , , , , , , , , , , , , | 8 Comments

What the Framers really said about the purpose of amendments to our Constitution

By Publius Huldah

One of the silliest of the many unsupported claims made by those lobbying for an Article V convention is that our Framers said that when the federal government violates the Constitution, the remedy is to amend the Constitution.1

It shouldn’t be necessary to point out that their claim makes as much sense as saying that since people violate the Ten Commandments, God should amend the Ten Commandments.2

And since none of our Framers said such a silly thing, the convention lobby can’t produce a quote where it was said.

Even so, some have believed it and repeated it to others. Americans! We must demand that people prove their claims before we believe what they tell us.

I will show you original source documents, and you can see for yourself what our Framers really said about the purpose of amendments to our Constitution.

Madison’s Journal of the Federal Convention of 1787

James Madison was a delegate to the federal convention of 1787 where our present Constitution was drafted. He kept a daily Journal. I went through it, collected every reference to what became Article V, and wrote it up – here it is.

Madison’s Journal shows what our Framers said at the convention about the purpose of amendments to our Constitution:

♦ Elbridge Gerry said on June 5, 1787: the “novelty & difficulty of the experiment requires periodical revision.”

♦George Mason said on June 11, 1787: The Constitution now being formed “will certainly be defective,” as the Articles of Confederation have been found to be. “Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent…The opportunity for such an abuse, may be the fault of the Constitution [i.e., a defect] calling for amendmt.” [boldface mine] 3

♦Alexander Hamilton said on Sep. 10, 1787: amendments remedy defects in the Constitution. 4

The Federalist Papers

In Federalist No. 43 at 8, Madison said the purpose of amendments to the Constitution is to repair “discovered faults” and “amendment of errors”; and “amendment of errors” and “useful alterations” would be suggested by experience.

In Federalist No. 85 (13th para), Hamilton said useful amendments would address the “organization of the government, not…the mass of its powers” 5

Throughout Federalist No. 49, Madison warned against a convention for proposing amendments, and showed that a convention is neither proper nor effective to restrain government when it encroaches.

Madison’s letter of August 28, 1830 to Edward Everett (p. 383-403)

Madison says:

“Should the provisions of the Constitution as here reviewed be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U.S…” (p. 398)

So he is talking about provisions – defects – in the Constitution which permit the federal government to abuse the States. He goes on to say:

“…the final resort within the purview of the Constn. lies in an amendment of the Constn…” 6

So he’s saying that when a defect in the Constitution exposes the States to abuses by the federal government, the remedy is to amend the Constitution.

To fully grasp Madison’s point, we must look at his letter in its historical context of the Tariff Act of 1828: The southern states bought manufactured goods from England. England bought southern cotton. But infant industries in the Northeast couldn’t compete with the English imports. So during 1828, Congress passed a Tariff Act which imposed such high tariffs on English imports that the southern states could no longer buy them. England stopped buying southern cotton. This devastated the southern economy. So South Carolina wanted to nullify the Tariff Act (the “Tariff of Abominations”); and developed a theory that a State had a “constitutional right” to nullify any federal law, and the nullification would be presumed valid, unless three-fourths of the States said it wasn’t valid.

Madison opposed South Carolina’s theory because the Tariff Act was constitutional – it was authorized by Art. I, §8, cl. 1, US Constitution. States can’t nullify a constitutional law! 7

But while the Tariff Act was constitutional, it was abusive: Article I, §8, cl. 1 was being used to benefit infant industries in the Northeast at the expense of the southern states. 8

So what’s the remedy “within the purview of the Constitution” for the Tariff Act of 1828? Madison doesn’t spell it out – but obviously Art. I, §8, cl. 1 could be amended to say that Congress may impose tariffs only to raise revenue to carry out the enumerated powers; and may not impose tariffs in order to benefit domestic industries, or to benefit one section of the Country at the expense of other sections. 9

Washington’s Farewell Address

In his Address, Washington warns that we must require people in the federal government to confine themselves within their constitutional powers; and we must not permit one department [branch] of the federal government to encroach on the powers of the other departments (p. 15-19). He then says,

“If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.” (p.19)

So Washington is talking about what the people may come to see as defects in the Constitution:

♦ If we want one branch of the federal government to have a power which the Constitution delegates to another branch, we should amend the Constitution to redistribute that power.10

♦ If we want the federal government to have a power the Constitution doesn’t grant, we should amend the Constitution to delegate the additional power. No matter how desirable it is for the federal government to have the additional power, we must not permit it to exercise the power by usurpation.11

And this is what Alexander Hamilton, who along with James Madison assisted Washington in drafting his Farewell Address, 12 had previously said in Federalist No. 78: The representatives of the people [Congress] may not violate the Constitution even if a majority of their constituents want them to:

“…Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act…” (5th para from the end)

Our Constitution isn’t defective, it’s ignored!

Our Constitution is a 5,000 year miracle. Our problem is everyone ignores it. The solution is to dust it off, read it, learn it, and enforce it. Downsize the federal government to its enumerated powers.

Demand Proof of what people say before you believe them.

If Americans would follow the example of the Bereans (Acts 17:11) and demand proof of the claims the convention lobby makes, they would spot the false claims and preserve our blessed Constitution. Judges & Juries require trial lawyers to prove their claims. Demand the same from lobbyists for a convention!

Endnotes:

1 Michael Farris claimed [but couldn’t link to a quote because Mason didn’t say it]:

“George Mason demanded that this provision [the convention method of proposing amendments] be included in Article V because he correctly forecast the situation we face today. He predicted that Washington, D.C. would violate its constitutional limitations and the States would need to make adjustments to the constitutional text in order to rein in the abuse of power by the federal government.”

2 Amendments can’t “rein in” the fed. gov’t when it “violate[s] its constitutional limitations” because when it does so, it is ignoring the existing limitations on its powers. Hello?

3 Mason’s concern was that the new fed. gov’t wouldn’t agree to amendments needed to correct defects in the new Constitution:

♦ Under the Articles of Confederation (our 1st Constitution), amendments had to be approved by the Continental Congress and all of the States (see ART. 13). So Art. V of the new Constitution dispensed with the requirement that Congress approve amendments.

♦ Who should be able to propose amendments? Madison wanted Congress to propose all amendments, either on their own initiative or at the request of 2/3 of the States. But Mason said the States should be able to propose amendments without asking Congress because Congress might become oppressive and not permit the States to get the necessary amendments.

So the convention method was added. And it provided a way for States to propose amendments. But it also provided a convenient opportunity to get a new Constitution, since the delegates would have that transcendent right, recognized in our Declaration of Independence, to throw off one government and write a new constitution which creates a new government.

George Mason hated the new Constitution. He said on Aug. 31, 1787 that he “would sooner chop off his right hand than put it to the Constitution as it now stands”; and if it wasn’t changed to suit his views, he wanted another convention. Everybody knew that to get a new Constitution, you need a convention.

Madison and the other Framers went along with adding the convention method because they knew the people had the right to meet in convention and draft a new Constitution whether or not the convention method was added to Art. V [e.g., Madison’s letter of Nov. 2, 1788 to Turberville p. 299 at 2.]; and they couldn’t stop People in the future from doing what they had just done. So Madison, Hamilton & John Jay promptly started warning of the dangers of another convention: see the Brilliant Men handout.

4 Here’s an illustration of what States soon saw as a defect in our Constitution: Art. III, §2, cl. 1 delegated to federal courts the power to hear cases “between a State and Citizens of another State”. But when a citizen of South Carolina sued the State of Georgia, the States were outraged! See Chisholm v. Georgia, 2 U.S. 419 (1793). So the 11th Amendment was ratified to take away from federal courts the power to hear such cases.

5 The Constitution drafted at the federal convention of 1787 delegates only a tiny handful of powers to the fed. gov’t. See this chart.

6 Madison continues, “… according to a process applicable by the States.” Madison always said that when States want amendments, they should ask their congressional delegation to propose them. E.g., Madison’s letter of Nov. 2, 1788 to Turberville (p. 299 at 2.).

7 See Madison’s Notes on Nullification (1835) HERE (p. 573-607).

8 The Tariff Act of 1828 violated our Founding Principle (2nd para of the Declaration of Independence) that the purpose of government is to secure the rights God gave us. God never gave us the right to be free of competition in business.

9 In the very next paragraph, Madison says that when there is a pattern of usurpations and abuses, we must step outside of the Constitution and resort to the original right of self-defense: resistance, i.e., nullification or revolution (p. 398).

10 E.g., Art. I, §8, cl. 11 delegates to Congress the power to declare war. But if we want the President to have that power, we should amend the Constitution to delegate that power to the President. We must not permit the President to exercise that power by usurpation!

11 If we wanted the fed. gov’t to exercise power over labor unions, wages & hours, safety standards, food & drugs, manufacturing standards, agriculture, energy, housing, transportation, education, medical care, the environment, etc., etc., etc., we should have amended the Constitution to delegate those powers to the fed. gov’t. But we ignored Washington’s advice, and permitted the fed. gov’t to exercise those powers by usurpation.

12 The Introduction to the Farewell Address (p. 3) says that George Washington composed it with the assistance of Alexander Hamilton and James Madison.

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November 11, 2018 Posted by | Amendments to the Constitution, Article V, Article V Convention, Convention of States project, Federalist No. 49, George Mason, James Madison, Madison's Journal of the Federal Convention of 1787, Madison's letter to Edward Everett, Michael Farris, Publius Huldah, Purpose of amendments to constitution, The Ten Commandments, Washington's Farewell Address, What our Framers gave us, what our Framers really said, why convention was added to Art. V | , , , , , , , , , , , , , | 12 Comments

The States Determine Qualifications for Voting and Procedures for Registration, and only Citizens may Vote

By Publius Huldah

1. Summary

The federal government is usurping the powers of the States, expressly retained by Art. I, §2, cl. 1, US Constitution, to determine qualifications for voting. And by perverting Art. I, §4, cl. 1, it is also usurping the States’ reserved power to determine procedures for registration of voters.

Consistent with Principles of Republican Government, every State in this Union has restricted voting to Citizens. 1 But on October 26, 2010 in Gonzales v. Arizona, a three judge panel on the US Circuit Court of Appeals (9th Cir.) construed the National Voter Registration Act of 1993 (NVRA) and asserted that Arizona has no right to require applicants for voter registration to provide proof of citizenship. I wrote about it at the time HERE. On rehearing, the en banc Court of Appeals agreed with the panel; and on June 17, 2013, in Arizona v. The Inter Tribal Council of Arizona, Inc., the Supreme Court affirmed.

A few months thereafter, California passed a law which permits illegal aliens to get drivers’ licenses; and during 2015, consistent with the unconstitutional NVRA, passed “Motor Voter” providing that when one gets a drivers’ license, one is automatically registered to vote. 2

The federal government is unlawfully mandating that illegal aliens be allowed to vote in our elections.

2. The Concept of “Citizenship”

Emer de Vattel’s The Law of Nations was a Godsend to our Framing Generation because it provided the new concepts our Framers needed to transform us from subjects of a Monarchy to Citizens of a Republic.3 Book I, Ch. XIX, defines “citizens”, “inhabitants” and “naturalization”:

· “Citizens” are the members of the civil society who are bound to it by certain duties, subject to its authority, participate in its advantages and in the rights of citizens [§212].

· “Inhabitants” are foreigners who are permitted to settle in the country and are subject to its laws, but do not participate in all the rights of citizens [§213].

· “Naturalization” is the process whereby the country grants to a foreigner the quality of citizen, by admitting him into the body of the political society [§214].

So “citizens” have civic advantages and political rights which are not extended to “inhabitants” – and certainly not to aliens who have unlawfully entered a country.4

Accordingly, our Constitution permits only Citizens to serve in Congress (Art. I, §2, cl. 2 & §3, cl. 3); the President must be a “natural born Citizen” (Art. II, §1, cl. 5); Article IV, §2, cl. 1 & §1 of the 14th Amendment refer to the “privileges and immunities of citizens”; and the 15th, 19th, 24th, and 26th Amendments5 refer to voting by “Citizens”.

3. The Federalist Papers show that voting is a privilege of Citizens alone

The slaves in America were “inhabitants”, not “citizens”. They weren’t allowed to vote. Federalist No. 54 (5th para from bottom) tells us:

“…The qualifications on which the right of suffrage depend are not…the same… [in the several States]. In some of the States the difference is very material. In every State, a certain proportion of inhabitants are deprived of this right by the constitution of the State, who will be included in the census by which the federal Constitution apportions the representatives… the Southern States might… [insist]…that the slaves, as inhabitants, should have been admitted into the census according to their full number, in like manner with other inhabitants, who, by the policy of other States, are not admitted to all the rights of citizens…” [boldface added]6

In Federalist No. 60 (1st, 2nd and last paras), Hamilton speaks of the “fundamental privilege” of citizens to vote, and that citizens who are conscious and tenacious of their rights would flock to the places of election to overthrow tyrants. In Federalist No. 61 (2nd para), Hamilton speaks of “the suffrages of the citizens”, and of voting as an “invaluable privilege”.

Over and over, The Federalist Papers show that voting is restricted to citizens:

“In republics, persons elevated from the mass of the community, by the suffragees of their fellow-citizens, to stations of great pre-eminence and power…” (No. 22, 6th para from bottom)

“If we consider the situation of the men on whom the free suffrages of their fellow-citizens may confer the representative trust, we shall find it involving every security which can be devised or desired for their fidelity to their constituents (No. 57, 7th para) … “… that each representative of the United States will be elected by five or six thousand citizens…” (No. 57, 7th para from bottom)

“There is a peculiarity in the federal Constitution which insures a watchful attention in a majority both of the people and of their representatives to a constitutional augmentation of the latter. The peculiarity lies in this, that one branch of the legislature is a representation of citizens, the other of the States…” (No. 58 at 3.)

“…A small number of persons, selected by their fellow-citizens from the general mass, will be most likely to possess the information and discernment requisite to such complicated investigations …” No. 68 (3rd para)

4. Webster’s 1828 Dictionary shows our Founding Generation saw voting as restricted to citizens

Suffrage is:

“1. A vote; a voice given in deciding a controverted question, or in the choice of a man for an office or trust. Nothing can be more grateful to a good man than to be elevated to office by the unbiased suffrages of free enlightened citizens.”

Citizen is:

“5. In the United States, a person, native7 or naturalized, who has the privilege of exercising the elective franchise…”

Franchise is:

“1. … the right to vote for governor, senators and representatives, is a franchise belonging to citizens, and not enjoyed by aliens…”

Inhabitants and aliens may not vote unless they become naturalized citizens and meet whatever additional qualifications for voting are set forth in the State Constitution. Naturalization is:

“The act of investing an alien with the rights and privileges of a native subject or citizen. naturalization in Great Britain is only by act of parliament. In the United States, it is by act of Congress, 8 vesting certain tribunals with the power.”

5. State Constitutions set forth the Qualifications for Voting

When we operated under the Articles of Confederation (our first federal Constitution),9 the States determined the qualifications for voting in state and local elections and in elections to the Continental Congress. These qualifications were set forth in the State Constitutions, and varied from State to State.

In our federal Constitution of 1787, the States expressly retained (at Art. I, §2, cl.1) their pre-existing power to determine the qualifications of voters; and ordained that those whom they determined were qualified to vote in elections to their State House of Representatives would thereby be qualified to vote for their federal Representatives to Congress.

Our Framers specifically rejected the idea that the new Congress or the State Legislatures would determine who was eligible to vote. Instead, only The People of each State were competent to define the right of suffrage for their State, and their definition was enshrined in their State Constitution. In Federalist No. 52 (2nd para), James Madison tells us:

“…The definition of the right of suffrage is very justly regarded as a fundamental article of republican government.10 It was incumbent on the convention, therefore, to define and establish this right in the Constitution. To have left it open for the occasional regulation of the Congress, would have been improper … To have submitted it to the legislative discretion of the States, would have been improper … To have reduced the different qualifications in the different States to one uniform rule, would probably have been as dissatisfactory to some of the States as it would have been difficult to the convention. The provision made by the convention … must be satisfactory to every State, because it is conformable to the standard already established, or which may be established, by the State itself. It will be safe to the United States, because, being fixed by the State constitutions, it is not alterable by the State governments…”[boldface added]

Remember! Since the federal and state governments are merely “creatures” of constitutions, they have no power to determine who may vote. That power belongs to the “creators” of the governments. Only The People are competent to set the qualifications for voting; and our determinations are enshrined in our State Constitutions.

6. The States reserved power to determine procedures for voter registration

Our Constitution of 1787 created a federal government to which we delegated only “few and defined” powers [see chart]. Nowhere in the Constitution did we delegate to the federal government power to dictate procedures States must use in registering voters. Accordingly, it is a “reserved” power.11 Until the federal government usurped power over this issue, the States always determined their own procedures for registration. Justice Thomas wrote in his dissent [at II. A. 2]:

“This understanding of Article I, §2, is consistent with powers enjoyed by the States at the founding. For instance, ownership of real or personal property was a common prerequisite to voting … To verify that this qualification was satisfied, States might look to proof of tax payments… In other instances, States relied on personal knowledge of fellow citizens to verify voter eligibility. . . States have always had the power to ensure that only those qualified under state law to cast ballots exercised the franchise.

Perhaps in part because many requirements (such as property ownership or taxpayer status) were independently documented and verifiable, States in 1789 did not generally “register” voters . . . Over time, States replaced their informal systems for determining eligibility, with more formalized pre-voting registration regimes. . . But modern voter registration serves the same basic purpose as the practices used by States in the Colonies and early Federal Republic. The fact that States have liberalized voting qualifications and streamlined the verification process through registration does not alter the basic fact that States possess broad authority to set voter qualifications and to verify that they are met.”

7. The federal government has usurped the States’ powers to determine who may vote and determine procedures for voter registration

The National Voter Registration Act of 1993 (NVRA) purports to require States to “accept and use” a federal voter registration form! The Ninth Circuit asserted that since the federal form doesn’t require applicants to provide documentary proof of citizenship, the States may not require it. This paper exposes some of the false arguments made by the Ninth Circuit’s three judge panel, and sets forth what Hamilton and Madison actually said as to the genuine meanings of Art. I, §2, cl. 1 and §4, cl.1: Arizona’s Proposition 200: What The Constitution Really Says About Voter Qualifications & Exposing The “Elections Clause” Argument.

But the Supreme Court affirmed the Ninth Circuit. Justice Scalia, who wrote the majority opinion, swept Art. I, §2, cl. 1 under the rug and ignored Hamilton’s and Madison’s explanations of Art. I, §4, cl. 1. Scalia asserted:

“The Clause’s [Art. I, §4, cl. 1] substantive scope is broad. “Times, Places, and Manner,” we have written, are “comprehensive words,” which “embrace authority to provide a complete code for congressional elections,” including, as relevant here and as petitioners do not contest, regulations relating to “registration”….” 12

Scalia said,

“…the NVRA forbids States to demand that an applicant submit additional information beyond that required by the Federal Form…”

and concluded,

“… the fairest reading of the statute is that a state-imposed requirement of evidence of citizenship not required by the Federal Form is “inconsistent with” the NVRA’s mandate that States “accept and use” the Federal Form…”

So what should we do when federal courts issue unconstitutional opinions?

8. Our Framers said nullification is the natural right, which all admit to be a remedy against insupportable oppression

The federal government has refused to control our borders and, as a result, we are being invaded. The federal government is demanding that invaders be allowed to vote in our elections. We have no obligation to obey unconstitutional dictates of the federal government. See Nullification: The Original Right of Self-Defense. What does your State Constitution say about qualifications for voting? Demand that your State government enforce your State Constitution.

And Remember! As Hamilton told us in Federalist No. 78 (6th para), federal courts can only issue judgments – they must rely on the Executive Branch to enforce them. So the President’s “check” on usurping federal judges is to refuse to enforce their opinions. States must man up and obey the Constitution instead of unconstitutional dictates of the federal Legislative and Judicial Branches. Do you think that President Trump will send out US Marshalls or the National Guard to FORCE States to allow illegal aliens to vote? The iron is hot – the time to strike is now.

Endnotes:

1Justice Alito’s dissenting opinion in Arizona v. The Inter Tribal Council of Arizona, Inc. says (2nd para):

“…Exercising its right to set federal voter qualifications, Arizona, like every other State, permits only U. S. citizens to vote in federal elections, and Arizona has concluded that this requirement cannot be effectively enforced unless applicants for registration are required to provide proof of citizenship…” [boldface added]

2 The California legislature thus violated Article II, Section 2, California Constitution which says, “A United States citizen 18 years of age and resident in this State may vote.”

3That Vattel had such influence is proved HERE.

4All men everywhere possess the rights God gave them. But in a civil society, the members possess political or civic rights which are not extended to inhabitants, lawful visitors, or illegal alien invaders.

5 With these four Amendments, the States agreed they would not deny suffrage to Citizens on account of race, being a female, not paying the tax, or being between 18 to 21 years of age. States retain power to deny suffrage to any Citizen on account of other factors (e.g., illiteracy, being on welfare, or stupidity).

6 Freed slaves were naturalized by §1 of the 14th Amendment.

7Vattel §212: “The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” [See §§ 215-217 for other places babies may be born as natural-born citizens.]

8Art. I, §8, cl. 4, US Const.

9 The Articles of Confederation were ratified July 9, 1778.

10A “republic” is a state in which the exercise of the sovereign power is lodged in representatives elected by the people.

11The powers not delegated to the United States by the Constitution … are reserved to the States, respectively, or to the people.” (10th Amendment) [italics added]

12 Counsel for the State of Arizona made a strategic error in failing to challenge the constitutionality of the NVRA as outside the scope of powers granted to Congress and as in violation of Art. I, §2, cl. 1 and §4, cl.1, US Const.

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August 16, 2018 Posted by | Arizona's Proposition 200, Article I, Sec. 2, Elections Clause, National Voter Registration Act, Voter eligibility, Voter Qualifications | , , , , , , , , , | 20 Comments

Honest discourse about Article V convention needed

By Publius Huldah

Whether States should ask Congress to call a convention under Article V of our federal Constitution is one of the most important issues of our time. The Delegates to such a convention, as Sovereign Representatives of The People, have the power to throw off the Constitution we have and set up a new Constitution – with a new and easier mode of ratification – which creates a new government.1

Americans need the Truth. But former law professor Rob Natelson’s recent article in The Hill is filled with ad hominems and misstatements. Natelson is legal advisor for pro-convention groups such as “Convention of States Project” (COSP).

“Poisoning the well” fallacy

Natelson characterizes those who oppose an Article V convention as “big government advocates”; “Washington insiders” who protect “judges and politicians who abuse their positions”; chanters of “talking points” from the “disinformation campaign” of the 1960s and early 1970s who have “no real expertise on the subject”; and, like those involved in “voter suppression efforts”, use “fear and disinformation” to discourage citizens from exercising their rights.

And while such tactics clearly resonate with COSP’s cheerleading squad; 2 others immediately recognize the preemptive ad hominem attack known as the “poisoning the wellfallacy. That fallacy is committed when one primes the audience with adverse information or false allegations about the opponent, in an attempt to bolster his own claim or discount the credibility of the opponent.

Obviously, Natelson’s characterizations don’t constitute proof that he is right, and opponents are wrong.

Misrepresentations, omissions, and irrelevant “academic research”

1. Natelson asserts:

“Our founders designed this [Article V convention] as a way the people could fix the federal government if it became abusive or dysfunctional”.

But he presents no proof – and can’t because no one at the federal convention of 1787 (where our present Constitution was drafted) said such a thing. As proved in The George Mason Fabrication, the Delegates agreed that the purpose of amendments is to correct defects in the Constitution.

2. Natelson asserts:

“Any proposals must… be ratified by 38 states before they become law.”

That’s not true. While any amendments to our Constitution must be ratified by 38 States; our Declaration of Independence says it’s the “self-evident” Right of a People to abolish their government and set up a new one.

We invoked that Right in 1776 to throw off the British Monarchy.

In 1787, we invoked that Right to throw off our first Constitution, the Articles of Confederation; and set up a new Constitution – the one we now have – which created a new government.

How did we get from our first Constitution to our second Constitution? There was a convention to propose amendments to our first Constitution!

The Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

for the sole and express purpose of revising the Articles of Confederation”.

But the Delegates ignored this limitation – they ignored the instructions from their States – and they wrote our second Constitution.

And in Federalist No. 40 (15th para), James Madison invoked the “precious right” of a People to throw off one government and set up a new one, as justification for what they did at the federal “amendments” convention of 1787.

We can’t stop that from happening at another convention. Furthermore, any new constitution will have its own mode of ratification. Whereas Art. 13 of the Articles of Confederation required amendments to be approved by the Continental Congress and all of the then 13 States; the new Constitution provided at Article VII that it would be ratified by 9 States.

Any proposed third constitution will have its own mode of ratification. The proposed Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). The States don’t ratify it – they are dissolved and replaced by regional governments answerable to the new national government.

3. Natelson asserts that “academic research” shows:

“…how the convention is chosen and operates: It is a meeting of state representatives of a kind very common in U.S. history…The convention follows a pre-set agenda and attendees are subject to state legislative direction.”

Natelson’s “meetings” are irrelevant:  they weren’t constitutional conventions called to propose changes to our Constitution!

Furthermore, Natelson doesn’t mention the one relevant convention we have had in this Country: the federal “amendments” convention of 1787. That convention involved Delegates who ignored the instructions from their States 3 and from the Continental Congress, and resulted in a new Constitution with a new and easier mode of ratification. That is the only “meeting” which is relevant to the convention Congress has the power to call under Article V of our Constitution.

The “calling” of a convention by Congress is governed – not by Natelson’s “meetings” – but by provisions in our Constitution. Article V delegates to Congress the power to “call” a convention; and Article I, § 8, last clause, delegates to Congress the power to make laws “necessary and proper” to carry out that power.

As to the sovereign powers of Delegates, look to the Declaration of Independence, the federal “amendments” convention of 1787, and Federalist No. 40 – not to Natelson’s “meetings”.

4. In an earlier article, Georgetown law professor David Super cited Coleman v. Miller (1939) to show that as amending the Constitution is a “political question”; the courts are unlikely to intervene. 4

Natelson responded that Coleman is a 79-year old “minority opinion the courts have long repudiated”; but doesn’t show where the Supreme Court “repudiated” its opinion.

What Coleman shows is this: we can’t expect federal courts to make Delegates obey instructions. No one has power over Delegates – Delegates can take down one government and set up a new one.

Conclusion

Here’s an idea: Let’s all read our Declaration of Independence and Constitution; elect only people who have also read them, know what they say, and agree to obey; and then let’s downsize the federal government to its enumerated powers.

Endnotes:

1 This is why James Madison, Alexander Hamilton, four Supreme Court Justices, and other luminaries warned against an Article V convention.

2 At 5:25-7:35 mark. Archived HERE.

3 The States’ instructions are HERE at endnote 9.

4 Professor Super is right: When the Constitution delegates a power to one of the “political” branches [legislative or executive], federal courts [“judicial” branch] traditionally abstain from interfering and substituting their judgment for that of the branch to which the power was delegated.

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June 24, 2018 Posted by | Article V Convention, constitutional convention, convention lobby, Convention of States project, Delegates to a convention can't be controlled, James Madison, Professor David Super, Rob Natelson | , , , , , , , , , , , , , | 21 Comments

The “Compact” Gimmick to circumvent the Powers granted to Congress by Article V

By Publius Huldah

The supremacy clause at Article VI, clause 2, US Constitution, 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.”

Two bills produced by the Convention of States Project (COSP), SJR 31 & HJR 49, which purport to provide for the selection and control of “commissioners” to an “interstate convention” for “proposing amendments” to our federal Constitution, were filed in the Virginia General Assembly this past session.  The General Assembly postponed consideration of the bills until 2019.

The bills assert that such an “interstate convention” is authorized by Article I, §10, clause 3; the 10th Amendment; and Article V of our Constitution.

As shown below, the bills are unconstitutional because they seek to circumvent Article V; and are not encompassed within Article I, §10, clause 3, or the 10th Amendment. Under the supremacy clause, they would be struck down.

1. What Article V says about amending our Constitution

Article V says:

“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments…”

Our existing 27 Amendments were obtained under the first method: Congress proposed them and sent them to the States for ratification or rejection.

We’ve never had a convention under Article V – they are dangerous! If Congress calls an Article V convention, our existing Constitution could be replaced with a new Constitution which sets up a completely new structure of government. 1

Nevertheless, the People granted to Congress at Article V the power to “call” a convention; and to the Delegates to the convention, the power to “propose amendments”. 2

Yet COSP, in brazen disregard of the plain meaning of Article V, has long insisted that the States “call” the convention; the States propose the amendments for the convention to rubberstamp; and the States will have total control over the Delegates to the convention.

SJR 31 & HJR 49 are an implicit admission that we who oppose an Article V convention have proved our point: Congress really does “call” the Convention; and pursuant to its grant of power to “call” the convention, Congress really is granted by Article I, §8, last clause, the power to make all laws “necessary and proper” to carry out the powers granted to Congress by Article V; and the States actually have no power over an Article V convention – except to ask Congress to “call” one. 3

The Congressional Research Service Report dated April 11, 2014 likewise reflects Congress’ clear awareness that it alone has the power to organize and set up an Article V convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” [page 4]

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; 4 (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” [page 4] [italics added]

And contrary to COSP’s previous assurances that the States would have total control over an Article V convention, the CRS Report says on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

In other words, we’ll have to get a convention before we know what the Delegates are going to do!

2. The new Gimmick to circumvent Congress’ powers under Article V

SJR 31 & HJR 49 make the bizarre claim that Article I, §10, clause 3, which says:

“No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State…”,

is really talking about an “interstate convention” for the States to meet and “propose amendments” to our Constitution!

First of all, our federal Constitution doesn’t address “interstate conventions”! 5 State and local governments and private organizations may hold nationwide conventions (gatherings) on an endless list of matters: trade shows, book fairs, sports events, high school marching band contests, agricultural fairs, meetings of County Sheriffs, whatever they like! And they don’t need permission from Congress.

Secondly, a “Compact with another State within the meaning of Article I, §10, clause 3, is separate, distinct, and totally unrelated to the Article V convention called by Congress for the purpose of addressing our federal Constitution. “Compact”, as used in Article I, §10, clause 3, means binding agreements or contracts between States which deal with state matters. Traditionally, “compacts” have been used to resolve such matters as boundary disputes between States; and may be used to address various other issues between States. 6

Article V governs amendments to our Constitution – not Article I, §10, clause 3!  Virginia may not lawfully set up any gimmick to circumvent the powers granted by Article V to Congress. And Congress may not lawfully approve a “compact” which violates our Constitution!

Thirdly, SJR 31 & HJR 49 claim the 10th Amendment gives States the power to hold an “interstate convention” to propose amendments to the Constitution. Rubbish! The 10th Amendment addresses powers “reserved to the States…or to the people.” It is inapplicable here because no powers respecting an Article V convention were reserved to the States: The People granted to Congress the power to “call” an Article V convention; and to the Delegates, the power to “propose amendments”. The only power the States have is to ask Congress to call the convention.

Once the requisite number of States has applied to Congress, it’s out of the States’ hands. Pursuant to Article I, § 8, last clause; 7 Congress has the power to make all laws necessary and proper to carry out its power to “call” the convention. And then, our Fate is in the hands of the Delegates; and they can do whatever they want – as they did in 1787.

3. The new Gimmick attempts to circumvent the Plenipotentiary Powers of the Delegates to an Article V Convention.

Article V shows on its face that the convention is the deliberative body. The Delegates hold the Power to “propose amendments”; or, to do what our Framers did at the federal “amendments” convention of 1787 (invoke the 2nd paragraph of the Declaration of Independence) and write a new Constitution which creates a new government.

So, while the States are free to propose amendments to their Congressional Delegations [and this is what James Madison advised]; 8 the States have no authority to dictate the amendments to be proposed at the convention called by Congress.

And as shown in “Why states can’t prevent a runaway convention” and “Delegates to an Article V Convention can’t be controlled by state laws! attempts to control Delegates with “unfaithful delegate” laws are laughably ineffective.

Apparently, COSP now concedes that “unfaithful delegate” bills won’t work, since with SJR 31 & HJR 49, COSP attempts to circumvent the plenipotentiary powers held by Delegates to an Article V convention, by fabricating a new kind of convention (meeting) out of Article I, § 10, clause 3!

4. The solution is to enforce the Constitution we already have

Americans don‘t know what our Constitution says and don’t care what it says. They want what they want; and elect politicians like themselves. The politicians made a mess. To fix the mess, Americans must read our Declaration of Independence and Constitution, and enforce them with their votes and by repudiating unconstitutional federal programs. State and local governments must enforce our Constitution by renouncing federal funds to implement unconstitutional programs and by nullification. See also James Madison’s specific suggestions on how States & Citizens can resist federal usurpations.

End notes:

1 This is why Brilliant Men (Madison, Hamilton, four US Supreme Court Justices, and other eminent jurists and scholars) warned against another convention. And this flyer sets forth the Facts of the federal “amendments convention” of 1787 at which our existing Constitution was drafted to replace our first Constitution (the Articles of Confederation).

2 The issue in U.S. v. Sprague (1931) was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments.” Accordingly, Congress had authority to select ratification of the proposed 18th Amendment by State Legislatures instead of by conventions in each State.

3 THIS handy chart lists who has the power to do what respecting an Article V convention.

4 Congress is under no obligation to permit States to participate in the Convention. Congress has the power to appoint its own members, federal judges, or whomever else they want as Delegates!

5 “Convention” has several meanings. It can be a meeting or gathering, such as a national convention of County Court Clerks or architects; or it can refer to a treaty with foreign countries, such as the Hague and Geneva Conventions on the laws of war. The author of SJR 31 & HJR 49 may have fallen victim to the Fallacy of Ambiguity since he slips and slides between the two meanings. “Compact” in Art. I, §10, cl. 3, means “agreement” or “contract” – not meetings!

6 E.g., States could properly enter into “Compacts”, within the meaning of Art. I, §10, cl. 3, wherein they agree to prohibit waste being discharged into a River shared by them; or respecting the construction of a hydroelectric dam on the River. Even though the federal government has no delegated authority to deal directly with such issues; the requirement of Consent by Congress to such Compacts is proper because States situated above or below the proposed dam could be affected by the dam.

Neither the Federalist Papers nor Madison’s Journal of the Federal Convention of 1787 set forth what our Framers meant by “compacts” at Art. I, §10, clause 3. Here are two secondary sources: The Evolving Use and the Changing Role of Interstate Compacts: A practitioner’s guide, by Caroline N. Broun & Michael L. Buenger (see pages 1-9 for the historical basis of “interstate compacts”). See also Justice Story’s “Commentaries on the Constitution of the United States” (1833), Book 3, Ch. 35, §§ 1395-1403.

7 Former law professor and pro-convention operative Rob Natelson’s statements to the contrary are untrue. See “Rob Natelson perverts the Necessary and Proper Clause and thinks in circles”.

8 E.g., Madison’s letter of Nov. 2, 1788 to Turberville (pages 297-301) at the end of Madison’s point 2 [and then read Madison’s point 3!]

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June 13, 2018 Posted by | Article V Convention, Convention of States project, Faithful Delegate Laws, interstate conventions | , , , , , , , | 23 Comments

COS Project’s “Simulated Convention” Dog and Pony Show and What They Did There

By Publius Huldah

1. Foundational Knowledge

Our Constitution delegates only a handful of powers to the federal government. But 100 years ago, we started electing Progressives (Fabian socialists) to State and federal office. With the enthusiastic approval of the American People, the Progressives set up the socialist regulatory welfare governments (state and federal) we now have. It’s unconstitutional; but Americans didn’t care because they were being taken care of by the governments, and their children were getting “free” public school educations.

So for the past 100 years, the federal and state governments and the American People have ignored our Constitution.

Now that our socialist system is collapsing, along comes the “Convention of States” Project (COSP), blames all our problems on the federal government, and claims we can fix the federal government’s violations of our Constitution by amending the Constitution. 1

And they say amendments which will “rein in the abuse of power by the federal government” when it “violate[s] its constitutional limitations”, 2 can be obtained only at a convention called by Congress pursuant to Article V of our Constitution.

Article V provides that if two thirds of the States apply for it, Congress shall call a convention for proposing amendments to the Constitution. 3 However, Delegates would have the right, as recognized in the 2nd paragraph of our Declaration of Independence, to throw off the Constitution we have and write a new Constitution which creates a new government. This has happened before!

Our first Constitution was the Articles of Confederation. It had defects, so on February 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation”. But instead of proposing amendments, the Delegates wrote a new Constitution, with an easier mode of ratification, 4 which created a new government. In Federalist No. 40 (15th para), James Madison invoked the Delegates’ right to abolish our form of government, as recognized in the Declaration of Independence, to justify ignoring their instructions and drafting a new Constitution which created a new government.

So! Ever since the federal convention of 1787, it has been known that any convention called to address our Constitution under Article V provides the opportunity to impose a new Constitution. 5 That’s why the enemies of our Constitution periodically push for an Article V convention. 6

In response to the current push, constitutionalists are warning Americans that if Congress calls an Article V convention, a new constitution with a new mode of ratification is likely to be imposed – probably a new constitution which moves us into the North American Union.

2. COSP’s “simulated” Article V convention

So during September 2016, COSP held an “invitation only” “simulated convention” in Williamsburg, Virginia attended by State Legislators handpicked by COSP, 7 to show us that Delegates to a real Article V convention called by Congress will do nothing more than propose amendments.

And lo! At the “simulated convention”, all the handpicked invitees did was propose six amendments to our Constitution – they didn’t “run away” and propose a new Constitution with a new mode of ratification!

COSP would like us to believe that their “simulated convention” proves that a real Article V convention called by Congress also won’t run away when, in fact, it proves nothing except that handpicked COSP invitees fall in line with the COSP agenda.

Now let’s look at the proposed amendments: COSP posted them HERE; an archived copy is HERE.

3. COSP’s six amendments

Like Newspeak in George Orwell’s “1984, the amendments would do the opposite of what COSP claims.

 

Fiscal Restraints Proposal 1”:

“SECTION 1. The public debt shall not be increased except upon a recorded vote of two-thirds of each house of Congress, and only for a period not to exceed one year.

SECTION 2. No state or any subdivision thereof shall be compelled or coerced by Congress or the President to appropriate money.

* * *”

So! Congress can’t increase the debt unless they decide to increase the debt. Wow. This is “fiscal restraints”?

If you read through the Constitution and highlight the powers delegated to the federal government, you will get a list of the objects on which Congress is authorized to spend money.

The reason we have a huge debt is because for 100 years, Congress has been spending on objects which aren’t on the list of delegated powers. The States go along with it because they get federal funds for implementing unconstitutional federal programs in their States. 31.9% of the States’ annual revenues is from federal funds. All this federal money is borrowed and added to the public debt!

To say that State Legislators display hypocrisy when they decry “out of control federal spending” when they have their hand out for all the federal money they can get, is an understatement. The amendment authorizes such spending to continue for as long as Congress continues to approve increases in the debt! The amendment legalizes – makes constitutional – all such spending and debt increases!

Section 2 gives us nothing. Our existing Constitution doesn’t permit the federal government to require States or local governments to spend money.

 

Federal Legislative & Executive Jurisdiction Proposal 1:

“SECTION 1. The power of Congress to regulate commerce among the several states shall be limited to the regulation of the sale, shipment, transportation, or other movement of goods, articles or persons. Congress may not regulate activity solely because it affects commerce among the several states. [boldface added]

SECTION 2. The power of Congress to make all laws that are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States. [boldface added]

SECTION 3. The Legislatures of the States shall have standing to file any claim alleging violation of this article. Nothing in this article shall be construed to limit standing that may otherwise exist for a person.

* * *”

Section 1: The original intent of the interstate commerce clause (Art. I, §3) is to prohibit the States from imposing tolls & tariffs on merchandize as it is transported through the States for purposes of buying & selling; and to permit the federal government to impose duties on imports & exports, both inland & abroad. 8

With Roosevelt’s “New Deal”, the federal government began to pervert the original intent so as to exert power over whatever they wanted to regulate.

The amendment legalizes the perversions! It delegates to the federal government powers it has already usurped to regulate the sale, shipment, transportation, or other movement of goods and articles.

Furthermore: the amendment delegates to the federal government a sweeping new power over the movement or transportation of persons across state lines! It would, e.g., authorize the federal government to prohibit use of privately owned vehicles to cross state lines, and to require prior written permission to cross state lines. I saw in communist East Europe & the Soviet Union a system where governments control movement of persons. Will “Papers, please” be heard at checkpoints in America? This malignant amendment would be constitutional authority to impose such a system here. 9

Section 2: The federal government has no existing constitutional authority to regulate intra state commerce, so the first clause of this section adds nothing our Constitution doesn’t already prohibit.

But the second clause delegates to the federal government another significant new power over persons: it comes verbatim from Randy Barnett’s so-called “bill of federalism”: 10

“…Congress shall have power to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.”

Why does Barnett, who attended the “simulated convention” as “Committee Advisor”, want the federal government to have this new power? What’s an “act of war against the United States” – doing what the Bundys and their supporters did? The amendment delegates to Congress the power to define “acts of war against the United States” – and to re-define it from time to time – to encompass whatever they want!

We need to understand the implications of delegating such power to Congress. As with “treason” under the Tudors in England, anyone can be accused of “acts of war against the United States”. Does Randy Barnett, law professor, understand the implications? James Madison understood them and thus said that “treason” must be defined in the Constitution; 11 obviously, no one of Madison’s caliber was at the “simulated convention”.

Section 3: Our Framers didn’t advise the States to file lawsuits against the federal government when it violates the Constitution! Our Framers told the States to nullify such violations. 12

 

Federal Term Limits & Judicial Jurisdiction Proposal 1”:

“No person shall be elected to more than six full terms in the House of Representatives. No person shall be elected to more than two full terms in the Senate. These limits shall include the time served prior to the enactment of this Article.”

This amendment is a feel-good palliative which caters to Americans’ pervasive desire for a quick “fix” which permits them to avoid dealing with the real causes of their problems. See Term Limits: A Palliative not a Cure.

 

Federal Legislative & Executive Jurisdiction Proposal 2”:

“SECTION 1. The Legislatures of the States shall have authority to abrogate any provision of federal law issued by the Congress, President, or Administrative Agencies of the United States, whether in the form of a statute, decree, order, regulation, rule, opinion, decision, or other form. [boldface added]

SECTION 2. Such abrogation shall be effective when the Legislatures of three-fifths of the States approve a resolution declaring the same provision or provisions of federal law to be abrogated. This abrogation authority may also be applied to provisions of federal law existing at the time this amendment is ratified.

* * *”

Section 1: Article I, §1, US Constitution, provides that all legislative powers granted by the Constitution shall be vested in Congress. Only Congress may make laws [and laws are restricted to the powers granted in the Constitution].

Accordingly, executive orders and federal agency rules and orders are not “law”.

The amendment would supersede Art. I, §1. It would elevate to the status of “federal law” every order or regulation burped out by bureaucrats in the executive branch; every executive order signed by every President; and every order barked out by jack-booted thugs working for federal agencies. And unless three fifths of States agree that you don’t have to obey – you must obey or bear the consequences of violating what would be – thanks to this amendment – “federal law”.

Section 2: James Madison, Father of our Constitution, showed how individual States or several States could carry out resistance to the federal government’s unconstitutional encroachments. But the amendment would require 30 States to agree before any one State or person could defend itself!

 

Fiscal Restraints Proposal 2:

SECTION 1. Congress shall not impose taxes or other exactions upon incomes, gifts, or estates.

SECTION 2. Congress shall not impose or increase any tax, duty, impost or excise without the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately present such to the President. [boldface added]

SECTION 3. This Article shall be effective five years from the date of its ratification, at which time the Sixteenth Article of amendment is repealed.”

This amendment doesn’t impose “fiscal restraints” – it authorizes Congress to impose new and different taxes on us!

The words in boldface authorize Congress to impose “any tax” if three fifths of both Houses agree. “Any tax” includes a national sales tax and a national value added tax (VAT). Statists love the VAT because it raises a “gusher of revenue for spendthrift governments”. This is what will replace the income, gift, and estate tax.

 

Federal Legislative & Executive Jurisdiction Proposal 3”:

“Whenever one quarter of the members of the United States House of Representatives or the United States Senate transmits to the President their written declaration of opposition to any proposed or existing federal administrative regulation, in whole or in part, it shall require a majority vote of the House of Representatives and Senate to adopt or affirm that regulation. Upon the transmittal of opposition, if Congress shall fail to vote within 180 days, such regulation shall be vacated. No proposed regulation challenged under the terms of this Article shall go into effect without the approval of Congress. Congressional approval or rejection of a rule or regulation is not subject to Presidential veto under Article 1, Section 7 of the U.S. Constitution.”

As shown in The “Regulation Freedom” Amendment and Daniel Webster, rulemaking by federal agencies is unconstitutional as in violation of Art. I, §1 of our Constitution.

The proposed amendment would supersede Art. I, §1 and legalize such rulemaking! And the existing Code of Federal Regulations and the rulemaking process itself – which now violate the Constitution – would be made constitutional!

The solution to the burden created by unconstitutional federal agencies is to do away with the agencies! Downsize the federal government to its enumerated powers!

4. Conclusion

The “simulated convention” was a dog and pony show put on to produce amendments to con us into believing that a real Article V convention called by Congress won’t “run away”.

But it’s impossible to fix federal usurpations of non-delegated powers with amendments, because amendments can’t take away powers the Constitution didn’t delegate in the first place. Thus, the amendments the hand-picked attendees approved legalize powers already usurped or delegate sweeping new powers to the federal government over States and individual persons!

Statecraft is serious business which requires systematic study to master. The “simulated convention” shows we live in a time of constitutional illiteracy where people of good intent can be misled by persons of “insidious views”. Heed the words of Daniel Webster in his 4th of July Oration, 1802:

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.”

Endnotes:

1 If your spouse commits adultery, will your marriage be saved if you amend the vows to permit adultery? When People violate the Ten Commandments, will morality be restored if we amend the Ten Commandments to permit sin?

2 Michael Farris’ words in “Answering the John Birch Society Questions about Article V” or HERE.

3 None of the Delegates to the convention of 1787 said the purpose of amendments is to rein in the fed. gov’t when it usurps power. They said the purpose is to fix defects in the Constitution. See The George Mason Fabrication at subheading 4.

4 Article XIII of the Articles of Confederation (AOC) required Amendments to the AOC to be ratified by the Continental Congress and all of the then 13 States. But Article VII of the new Constitution (the one we now have) provided that it would be ratified by 9 States.

5 The enemies of our Constitution knew from day one that they could get rid of our Constitution at an Art. V convention! Our present Constitution was ratified by the 9th State on June 21, 1788. In Federalist No. 85 (mid-August 1788), Hamilton addressed the arguments of the anti-federalists who were agitating for another convention in order to get rid of our new Constitution.

On Oct. 27, 1788, anti-federalist Patrick Henry introduced into the Virginia Assembly a Resolution asking Congress to call an Art. V convention. In Madison’s letter to Randolph of Nov 2, 1788 (pages 294-297), he speaks of Henry’s “enmity” “agst [against] the whole system” [the new Constitution]; and “the destruction of the whole system I take to be still the secret wish of his heart, and the real object of his pursuit.”

6 New Constitutions are already prepared or being drafted: e.g., the Constitution for the Newstates of America is ratified by a national referendum (Art. XII, §1). Globalists [e.g., the Council on Foreign Relations] who want to move us into the North American Union (NAU) need a new Constitution to transform us from a sovereign nation to a member state in the NAU.

7 COSP’s page is archived HERE. See “who attended the simulation” in right column. [Archived list of attendees is HERE or HERE.]

8 Proof of the original intent of the interstate commerce clause & how it was abused is HERE.

9 Yet, Legislators from 44 of the States at the “simulated convention” approved this!

10 See Barnett’s Amendment 2 – Limits of Commerce Power”. It’s archived HERE.

11 “Treason” is defined at Art. III, §3. In Federalist No. 43 (at 3.) Madison warns that the definition must be locked into the Constitution. Otherwise, malignant people fabricate definitions as needed in order to condemn their enemies.

Compare Art. I, §8, cl. 10 which delegates to Congress the power “To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations”. In Federalist No. 42 (1st & 4th paras), Madison points out that this class of powers is among those which “regulate the intercourse with foreign nations” and so must be handled by the general [fed.] gov’t. And since everyone’s definition of the terms is different, the fed gov’t should define them. This class of powers wouldn’t affect private Citizens. For more on the limited criminal jurisdiction of the fed gov’t over private Citizens, see What Criminal Laws are Congress Authorized To Make?

12 See Nullification made Easy. And remember: State officials are required by the Oath at Art. VI to “support” the federal Constitution – not to obey the federal government!

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January 14, 2018 Posted by | Article V Convention, Code of Federal Regulations, Commerce clause, commerce clause, Convention of States project, Daniel Webster, dog and pony show, Fabian socialism, fabian socialists, James Madison, Michael Farris, Newspeak, Randy Barnett, simulated convention, Term Limits Amendment | , , , , , , , , , | 31 Comments

The “Regulation Freedom” Amendment and Daniel Webster

By Publius Huldah

“The politician that undertakes to improve a Constitution with as little thought as a farmer sets about mending his plow, is no master of his trade. If that Constitution be a systematic one, if it be a free one, its parts are so necessarily connected that an alteration in one will work an alteration in all; and this cobbler, however pure and honest his intentions, will, in the end, find that what came to his hands a fair and lovely fabric goes from them a miserable piece of patchwork.” Daniel Webster, 4th of July Oration, 1802.

We live in a time of constitutional illiteracy. A recent survey found that only 26% of Americans can name the three branches of the federal government. Yet every Tom, Dick and Harry thinks he knows all about how to amend a document he never bothered to read. Our lawyers were indoctrinated in law school with the Supreme Court’s perversions of our Constitution, and know nothing of our actual Constitution. We should read and learn the Constitution we have before we tinker with it or jump on the bandwagon of tinkerers. Otherwise, we destroy the “fair and lovely fabric” we were given.

Summary

 Under our Constitution, Congress makes the laws, and the President enforces them. The powers of “making” and “enforcing” are separated so that the President and Congress may act as a “check” on each other.

But 100 years ago, Congress starting passing laws they had no constitutional authority to make, and delegated the details to be written in by agencies within the Executive Branch. This process continued and resulted in the Code of Federal Regulations which contains the huge body of regulations made by agencies within the Executive Branch. And thus we got the unconstitutional administrative law state under which every aspect of our lives is being increasingly regulated and controlled. 1

And now appear those who, under the promise of limiting the regulatory administrative law state, propose an Amendment to our Constitution which would legalize it!

1. Only the Legislative Branch has Constitutional Authority to make Laws

Article I of our Constitution created the Legislative Branch of the federal government. Section 1 thereunder says:

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”

That means what it says. Only Congress may make laws [and laws are restricted to the powers granted in the Constitution]; and laws may be made only by elected Senators and Representatives in Congress.

2. The Executive Branch Enforces the Laws Congress makes

Article II of our Constitution created the Executive Branch. A primary function of that branch is to enforce laws passed by the Legislative Branch. Since the President’s Oath is to “preserve, protect and defend” the Constitution, he is obligated to refuse to enforce any Act of Congress which is unconstitutional.

3. Rulemaking by Agencies in the Executive Branch

But during the early 1900s, Congress began to make laws outside the scope of the handful of powers granted to the federal government, and delegated the details to be written by unelected bureaucrats in the Executive Branch.

This is now routine practice: Congress passes an overall statutory framework, and bureaucrats in the Executive Agencies write the rules to flesh it out. The Agencies themselves are often unconstitutional as outside the scope of powers granted in the Constitution. 2

To illustrate: Congress passed – without reading – the over 2,000-page Obamacare act. Then it went to the Department of Health & Human Services (an unconstitutional federal agency) to have tens of thousands of additional pages of regulations added to fill out the framework.

This unconstitutional practice resulted in the infamous Code of Federal Regulations. The Code is so huge it’s difficult to impossible to keep up with the rules and revisions which pretend to regulate one’s trade, business, or profession. [See Trump’s tweet below for an illustration of the size of the Code.]

The administrative law state and agency rules are unconstitutional! They violate Art. I, § 1, US Constitution, and are outside the scope of powers granted to the federal government.

So, what’s the solution?

4. The “Regulation Freedom” Amendment

Roman Buhler of the “The Madison Coalition” says we should support the “Regulation Freedom” Amendment to the US Constitution:

“Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.”

Do you see the trap the amendment sets? It would legalize rulemaking by federal agencies in the Executive Branch and would thus supersede Article I, §1 of our Constitution! And the entire existing Code of Federal Regulations and the rulemaking process itself – which now violate the Constitution – would be made constitutional! 3

The amendment would thus bring about a fundamental transformation of our Constitution from one where Laws are made by elected Representatives on only a handful of enumerated powers; to the administrative law state where laws are made by unelected, nameless, faceless bureaucrats in the Executive Branch (the same branch that accuses, prosecutes, and judges violations). The executive agencies would make whatever Rules they please—and they would stand unless Congress, which often doesn’t even read the laws they pass, overrules it.

It protects 2nd Amendment Rights?

In an email dated November 10, 2017, Mr. Buhler said his proposed amendment “protects 2nd Amendment Rights”.

But his amendment does the opposite – it legalizes all the existing federal regulations which restrict firearms and ammunition. Look at Title 27, Chapter II, Subchapter B, Parts 478 and 479 of the Code of Federal Regulations. As of now, every rule in Parts 478 & 479 is unconstitutional as outside the scope of powers delegated in the Constitution; violates Article I, §1; and violates the 2nd Amendment. But with Buhler’s proposed amendment, all those rules would become constitutional!

Furthermore, the amendment would provide constitutional authority for the Bureau of Alcohol, Tobacco, Firearms and Explosives to make whatever future rules they want – and they would all be constitutional unless Congress objects and votes against them.

So the amendment vastly increases the powers of the federal government by legalizing what is now grotesquely unconstitutional.

5. Daniel Webster’s Warning

We are in a state of moral, religious, intellectual, and psychological decline. We don’t know what our Constitution says, and didn’t bother to find out. We elected people who didn’t know and didn’t care – and they made a mess.

To fix the mess, we must learn and enforce the Constitution we have and elect people who know it and obey it. We can gradually downsize the federal government to its enumerated powers. And as to Buhler’s proposed amendment, heed Daniel Webster’s warning:

“…If an angel should be winged from Heaven, on an errand of mercy to our country, the first accents that would glow on his lips would be, Beware! Be cautious! You have everything to lose; you have nothing to gain. We live under the only government that ever existed which was framed by the unrestrained and deliberate consultations of the people. Miracles do not cluster. That which has happened but once in six thousand years cannot be expected to happen often. Such a government, once gone, might leave a void, to be filled, for ages, with revolution and tumult, riot and despotism…”Webster’s Oration.

Endnotes:

1 Administrative law judges in Executive Branch agencies decide whether violations of agency rules have occurred. The agencies thus act as lawmaker, prosecutor, and judge! Isaiah 33:22 says God is our Judge, Law-giver, and King. Because humans are corrupt, our Framers separated the functions into three separate branches of government: Legislative, Executive, and Judicial. And since the Oath of Office requires persons within each branch to obey the Constitution – not the other brancheseach branch has a “check” on the other branches.

2 Where’s the constitutional authority for the Dept. of Education? Energy? Agriculture? Housing & Urban Development? Labor? Environmental Protection? etc., etc., etc.?

3 Our existing, but long ignored, Constitution limits federal power to the enumerated powers. But the proposed amendment would supersede that limitation because it permits the exercise of federal power on whatever the Executive Agencies make rules about!

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December 17, 2017 Posted by | Administrative Law, Code of Federal Regulations, Daniel Webster, Madison Coalition, Regulation Freedom Amendment, Roman Buhler | , , , , , , | 35 Comments

Transgenders in the Military – Who Decides: Congress, the President, or Federal Judges?

By Publius Huldah

In a case now pending before the US District Court for the District of Columbia,1 the trial judge recently granted a preliminary injunction which purports to temporarily stop the Trump Administration from banning so-called “transgender” persons from serving in the Military.

But we will look at the real issue: Does the Judicial Branch of the federal government have constitutional authority to require the Legislative and Executive Branches of the federal government to permit transgender persons to serve in the Military?

Instead of going along with what everybody says – or expounding on one’s personal views on the topic –let us consult and obey the US Constitution:

· Article I, Section 8, clauses 11 – 13, delegate to Congress the powers to declare War, grant Letters of Marque and Reprisal, make rules concerning Captures on Land and Water; raise and support Armies; and to provide and maintain a Navy.

· Article I, Section 8, clause 14, delegates to Congress the power “To make Rules for the Government and Regulation of the land and naval Forces;”

· Article II, Section 2, clause 1, says, “The President shall be Commander in Chief of the Army and Navy of the United States…”

In Federalist Paper No 69 (6th para), Alexander Hamilton says:

“…The President is to be commander-in-chief of the army and navy of the United States. … his authority … would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy…”

So! All the powers over the Military which have been delegated by the Constitution are vested in the Legislative and Executive Branches of the federal government.

The Judicial Branch has no role to play in the organizing and operation of the Military Forces.

Pursuant to Article I, Section 8, clauses 11-14, Congress alone has the delegated authority to decide who may serve in the Military. If Congress issues Rules banning transgender persons from serving, then it is the President’s job, as Commander in Chief, to enforce those rules.

Accordingly, instead of participating in the litigation before the federal district court, the Trump Administration should instruct the federal judge on the long-forgotten concept of “Separation of Powers” and advise the court, “You have no jurisdiction over the Military – we will not participate in this lawsuit.

1. Military courts and military lawyers in a nutshell

The Judicial Branch of the federal government was created by Article III, US Constitution. That Article created the supreme Court, and authorized Congress to ordain and establish, from time to time, such inferior courts as needed. Pursuant to that authority, Congress has established 94 federal district courts (where most federal trials are conducted), and 13 US Circuit Courts of Appeals.

The US Military has its own court system which is not part of the Judicial Branch of the federal government. The military courts are “Article I Courts” created by Congress in the Uniform Code of Military Justice (UCMJ).2 They consist of trial courts where courts-martial are conducted; each Branch of Service has its own “Court of Criminal Appeals”; and the “US Court of Appeals for the Armed Forces” hears appeals from the Services’ Courts of Criminal Appeals.

And when military commanders need legal advice, they get it from their own Service lawyers (this is one of the duties of lawyers in the Judge Advocate Generals’ Corps).

The Judicial Branch of the federal government has no constitutional authority over the US Military.

2. Federalist Paper No. 80 and the meaning of “arising under”

Some may assert that the Judicial Branch has authority to determine who may serve in the Military because Article III, Section 2, clause 1 says,

“The judicial Power shall extend to all Cases…arising under this Constitution and the Laws of the United States…”

But they would be wrong. In Federalist No. 80, Alexander Hamilton explains the jurisdiction of the courts created by Article III: In the 2nd, 3rd, 4th, and 13th paragraphs, he shows that the purpose of the language quoted just above is to authorize the Judicial Branch to enforce the Constitutionnot re-write it; and to enforce constitutional federal lawsnot re-write them.

Furthermore, in Federalist No. 81 (8th para), Hamilton addresses judicial encroachments on legislative authority, and reminds us that such encroachments need never be a problem because of the courts’ “total incapacity to support its usurpations by force”; and because Congress may protect the Country from usurping federal judges by impeaching, trying, convicting, and removing them from office.

3. Political Questions

Accordingly, when a power is vested by the Constitution in the Legislative or Executive Branches [the “political branches”] the federal courts [the “legal branch”] have traditionally refused to interfere.

In Martin v. Mott, 25 US 19 (1827), the Supreme Court considered the Militia Act of 1795 which authorized the President to call forth the militia when he judged it necessary to repel an invasion.3 The Court pointed out that the power had been confided [entrusted] by Congress to the President, and

“We are all of opinion, that the authority to decide whether the exigency has arisen, belongs exclusively to the President, and that his decision is conclusive upon all other persons.”

In Foster v. Neilson, 27 U.S. 253 (1829), which involved a dispute between the United States and Spain over territory, the Court held that once those departments [Executive and Legislative Branches] “which are entrusted with the foreign intercourse of the nation” have asserted rights of dominion over territory, “it is not in its own courts that this construction is to be denied”. “A question … respecting the boundaries of nations, is … more a political than a legal question; and … the courts of every country must respect the pronounced will of the legislature.”

Likewise, the power to determine who may serve in the Military has been delegated to the Legislative Branch of the federal government i.e., Congress. The Judicial Branch may not substitute its judgment for the Will of the Legislative Branch; and if it attempts to do so, Congress should employ the remedies suggested by Hamilton in Federalist No. 81.

4. The President’s “check” on the federal courts

Finally, let’s look at Federalist No. 78 (6th para) where Hamilton – unlike the pundits of today – tells us the Truth about the powers of federal courts:

“…The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [boldface mine; caps are Hamilton’s] 4

An informed President who is a manly man will ignore ultra vires orders of the Judicial Branch.

5. Conclusion

Let us put the federal courts in their proper place! Congress and the President have the recognized power to refuse to go along with unconstitutional or ultra vires acts of the Judicial Branch; and their Oaths of office require them to do so. Congress also has the power to rid us of usurping federal judges via the impeachment process.

Endnotes:

1 The US District Court for the District of Columbia was established by Congress pursuant to Art. III, §1, US Constitution.

2 Congress’ authority to create the Military Courts is derived from Art. I, §8, cl. 14, US Constitution.

3 Article I, §8, clause 15, delegates to Congress the power, “To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.”

4 I trust you see why Hamilton is viciously smeared. The relentless attacks on our Framers have a purpose: Take them down – and our Foundation is destroyed. Hamilton wrote most of The Federalist Papers, which Madison and Jefferson recognized as the best evidence of the genuine meaning of our Constitution.  What effect do these constant attacks on Hamilton have on peoples’ respect for The Federalist Papers? Beware of false friends who undermine our Foundation; and of jealous men whose claim to fame is that they attack Hamilton.

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November 9, 2017 Posted by | Article I courts, Commander in Chief, political questions, Transgenders in the military, Uniform Code of Military Justice (UCMJ) | , , , , , , , , , , , , , | 23 Comments

Why States Can’t Prevent a Runaway Convention

By Publius Huldah

The danger of an Article V convention (which made James Madison “tremble”, caused Alexander Hamiltondread”, and Chief Justice John Jay to say that another convention would impose an extravagant risque”) is this: the delegates to the convention can run away: instead of proposing amendments to our existing Constitution, they can write a completely new Constitution with a new – and easier – mode of ratification. 1

The convention lobby implicitly acknowledges this danger when they say State Legislatures should pass “unfaithful delegate” laws to control delegates. 2

Accordingly, Wyoming passed a delegate law earlier this year which purports to empower the WY Legislature to “immediately recall” any delegate who makes an “unauthorized vote” at the convention, and to charge with a felony any delegate who fails to follow the WY Legislature’s instructions on what he may do at the convention. The Texas delegate law purports to make “invalid” any “unauthorized vote” at the convention, and to empower the TX Legislature to recall any delegate who violates his instructions. But Tennessee takes the cake with its delegate law: Not only does the TN law purport to “void” votes cast at the convention by TN delegates which are outside the instructions or limits placed on the delegates by the TN Legislature – and then to prosecute such delegates for a felony; the TN law also asserts that if all TN delegates vote or “attempt to vote” outside the scope of the instructions or limits, TN’s previously filed applications for an Article V convention are to be treated as “having no effect at all”. Other States have passed similar laws.

Such laws are contrary to our Founding Principles and are based on false assumptions. Accordingly, they are unenforceable and ineffective.

1. Self-evident Rights and the Declaration of Independence

The Declaration of Independence is the Fundamental Act of our Founding.3 It declares that all men are created equal; our rights are bestowed by God; our rights are unalienable; and the purpose of government is to secure the rights God gave us.

The Declaration is not “law” in the ordinary sense – it is higher than law, for it sets forth The Divine Standard which a Constitution – and the laws made pursuant to the Constitution must meet.

It also declares that a People have the self-evident right to throw off their government and set up a new one. With that Principle firmly in mind, let’s look at our first amendments convention; and then, at State unfaithful delegate laws.

2. The federal convention of 1787

After our Revolution, we operated under our first Constitution, the Articles of Confederation. But there were defects in the Articles, so on Feb. 21, 1787, the Continental Congress called a convention to be held in Philadelphia “for the sole and express purpose of revising the Articles of Confederation”. The States also drafted instructions which purported to restrict delegates to proposing amendments.

But the delegates ignored their instructions and wrote a new Constitution [the one we now have]. In Federalist No. 40 (15th para), Madison invoked the Declaration of Independence and claimed, as justification for what they did,

“…the transcendent and precious right of the people to ‘abolish or alter their governments as to them shall seem most likely to effect their safety and happiness,’…”

Yet State unfaithful delegate laws claim a power to divest The Representatives of the People – and to criminally prosecute them for exercising – what the Fundamental Act of our Founding declares is a “self-evident” right”!

3. And what if the delegates make their proceedings secret?

The State Legislators who vote for unfaithful delegate laws assume they will be able to know what is going on every minute of every day of the convention.

But Madison’s Journal of the Federal Convention of 1787 (where our present Constitution was drafted) shows that on May 29, 1787, the delegates voted to make their proceedings secret.

If delegates to a convention today vote to make the proceedings secret, the States won’t know what is going on – and can’t stop it. And if delegates vote by secret ballot, the States would NEVER know who did what.

You might think that with cell phones & cameras, it’s impossible to have a secret meeting. But the American Legislative Exchange Council (ALEC), which “induces” State Legislators to push the COS application for an Article V convention, is experienced in conducting secret meetings with State Legislators. WATCH this 6.5 minute video of a Georgia TV crew which attempted to get into a meeting held at a Georgia hotel of ALEC and Georgia Legislators.

ALEC, which supports the COS application for an Article V convention, is funded by the Koch Brothers and other mega-corporations. The Koch Brothers spend vast sums on State politicians (e.g., Texas), to get their support for the COS application. Do the Kochs want an Article V convention so they can get a new Constitution which transforms us from a sovereign nation to a member state of the North American Union? And if there is a convention, will armed guards keep the press out? If delegates have been bought by the Kochs, will they tweet & text to the world what they are up to behind closed doors?

4. State Legislatures are “creatures” of their State Constitutions, and have no “competent authority” to control The Representatives of The People at an Article V convention

 Americans have forgotten a Principle which is the basis of free government: That political power originates with The People. 4 The People create governments by means of constitutions. Since a government is the “creature” of its constitution, it can’t be superior to its Creator, The People.

This is why at the federal convention of 1787, where our present federal Constitution was drafted, our Framers understood that only The People were competent to ratify the new Constitution. George Mason said on July 23, 1787,

“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”

Keeping that Principle firmly in mind, let’s look at Article V, US Constitution.

It provides that when two thirds of the State Legislatures (“mere creatures”) apply for it, Congress is to call a convention. At that point, it is out of the State Legislatures’ hands – the bell has tolled, and State Legislatures can’t un-ring it. Congress “calls” the convention (sets it up); but when it assembles, the delegates, as Sovereign Representatives of the People, are not answerable to State Legislatures (which are “mere creatures” of the State Constitution) or to Congress (which is a “mere creature” of the federal Constitution). The delegates actually have the power to eliminate the federal and state governments – and that is precisely what the proposed Constitution for the Newstates of America does.

Delegates to a federal convention called by the federal Congress, to perform the federal function of altering or replacing our federal Constitution, are performing a federal function, not a State function. The delegates don’t represent any government, federal or state. 5 They are supposed to represent The People; but in our corrupt time, they are more likely to represent the Koch Brothers (because they have the cash).

Dust off your copy of the federal Constitution we already have, read it and defend it. It filled all Europe with wonder and veneration”. If you don’t do this, we will lose it.

Endnotes:

1 The proposed Constitution for the Newstates of America creates a totalitarian dictatorship. The States are dissolved and replaced by regional governments answerable to the new national government. It is ratified by a national referendum [national popular vote] (Art. XII, §1). Other proposed Constitutions are also waiting in the wings for a convention.

2 The American Legislative Exchange Council (ALEC) claims their model delegate bill “will eliminate the possibility of a ‘runaway convention’ the reason most often cited by scholars for their opposition to an Article V Convention.”

3 Dr. Alan Keyes spoke of this on the radio some years ago; and I knew he had just handed me the Key to understanding our Constitution.

4 See Federalist No. 22, last para (Hamilton).

5 The term, “convention of states”, is a misnomer which gives the false impression that States control the convention. In Rob Natelson’s speech on Sep. 16, 2010,  he said he will no longer call it a “constitutional convention”, but will henceforth say, “convention of states” (pg. 2).

This Chart illustrates who has the power to do what at an Article V convention.

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September 27, 2017 Posted by | ALEC, American Legislative Exchange Council, Article V Convention, Delegates to a convention can't be controlled, Faithful Delegate Laws, runaway convention, unfaithful delegate laws | , , , , , , , | 33 Comments

From Duty to be Armed to Permission to Carry

By Publius Huldah

“If the central government has the authority to tell a state it must accept permits from all the other states, then it also has the authority to tell a state it may not accept a concealed permit from any other states. If the central government can do these things it can set up a national concealed carry permit scheme and in essence bring into existence a national arms registry. That is exactly where this is headed.” Attorney Richard D. Fry 1

Some are touting the federal Concealed Carry Reciprocity Act of 2017 (HR 38) as a bill which would expand our right to carry. But if you will walk with me for a few minutes, I’ll show you a better path to take.

Let us look at the applicable First Principles, to which I propose we return.

1. Gun control is not an enumerated power delegated to the federal government

Our federal Constitution doesn’t delegate to the federal government any power over the Country at Large 2 to restrict our arms. Accordingly, all pretended federal laws, regulations, orders, opinions, or treaties which purport to do so are unconstitutional as outside the scope of powers delegated. They are also unconstitutional as in violation of the Second Amendment.

The only power the federal government has over the Country at Large respecting arms is set forth at Article I, §8, clause 16 with respect to providing for the “organizing, arming, and disciplining, the Militia”. Pursuant to this clause, Congress passed the Militia Act of 1792 which required every able-bodied male citizen (with a few exceptions) between the ages of 18 and 45 to acquire a rifle, bayonet, ammo, ammo pouch, and report to his local Militia Unit for training. 3

2. What does your State Constitution say about the right to keep and bear arms?

Each State has its own Constitution which addresses its State Militia and the right to be armed.

Now listen: No State may lawfully make any law which contradicts its State Constitution or which interferes with Congress’ power to “organize, arm, and discipline, the Militia”.

Accordingly, any State Statute which purports to require a permit before one may carry a gun is probably unconstitutional under that State’s Constitution; and is certainly unconstitutional under the federal Constitution because Congress may lawfully require able-bodied male Citizens to acquire firearms and ammo and report to their local Militia Unit for training!

Do you see?

Now let’s look at Title 18, US Code, Part I, Chapter 44, which HR 38 proposes to amend.

3. Title 18, US Code, Part I, Chapter 44 is unconstitutional

It sets up a complex federal regulatory scheme over firearms, every word of which is unconstitutional as outside the scope of powers delegated, and as in violation of the Second Amendment.

HERE it is, look through it (§§ 921-931).

4. What HR 38 actually does

HR 38 proposes to amend this existing federal regulatory scheme to insert a new provision [to be § 926 D] to require States which have a statute which permits residents of their State to apply for a permit [!] to carry a concealed firearm

to allow persons from other States:

· who aren’t prohibited by federal law from possessing firearms [!]; and

· who are carrying a photographic ID issued by a government body [!]; and

· who are carrying a concealed carry license or permit from the other State [!],

to possess or carry a concealed handgun (other than a machinegun or “destructive device”) which has been shipped or transported in interstate or foreign commerce.

So! Even though a State Constitution, such as that for Connecticut, 4 prohibits the State Legislature from making ANY laws restricting firearms (such as imposing requirements for registration, a permit, government issued photo ID), a Citizen of Connecticut who exercises his constitutionally recognized right to carry without registration or a permit or a government issued photo ID, wouldn’t qualify under HR 38 for concealed carry in another State.

To qualify for concealed carry in other States, the Citizen of Connecticut would need his State Legislature to pass a law [which is unconstitutional under the Connecticut and federal Constitutions], so that he could comply with an unconstitutional federal statute [HR 38], so that he could carry in other States which also would have to pass unconstitutional laws imposing permit requirements on those who carry concealed.

Do you see how a God-given right [self-defense] is thus converted into a privilege which is regulated, granted, or denied, by civil government?

HR 38 also provides that any person carrying a concealed handgun in a State under the reciprocity provisions may also carry concealed in the public parts of National Parks and certain other lands under federal control. Lest you think this a gain, consider that: (1) The Constitution doesn’t authorize the federal government to operate national parks and such like, and (2) the federal government has no lawful authority to impose registration requirements for carrying arms anywhere!

5. What’s the solution?

Read our Declaration of Independence and federal Constitution. Then you won’t fall for unconstitutional gimmicks like HR 38.

The gun rights organizations could perform valuable services to our Country by working for:

· the repeal of the entire unconstitutional federal regulatory scheme respecting arms;

· the repeal of all unconstitutional State regulatory schemes;

· the revitalization of the State Militia to replace the federally controlled National Guard; 5 and

· by providing more classes for Citizens in arms training.

And please stop lobbying for unconstitutional federal legislation!

Endnotes:

1 From the late Attorney Richard D. Fry’s email of Dec. 10, 2015 to US Senator Moran, a co-sponsor of SB 498, the Constitutional Concealed Carry Reciprocity Act of 2015. Richard, who was my Friend, sent me a copy of his letter.

2 Pursuant to Article I, § 8, next to last clause, Congress has general legislative powers over the District of Columbia, military bases, dock yards, mints, federal courthouses and post offices, and such other places needed for Congress to exercise its enumerated powers. The exercise of such powers by Congress over these small federal enclaves is restricted by the Bill of Rights – including the 2nd Amendment. So Congress is prohibited from making, for these federal enclaves, any laws which infringe the Right of The People to keep and bear Arms. Congress may properly require individuals visiting federal prisons, the psych ward of military hospitals, the mint, federal courthouses, and such like, to leave their arms in their vehicles. But Congress may not require Citizens to obtain and carry a permit or photo ID as a condition precedent to carrying a firearm.

3 The “Militia of the several States” were creatures of State Statutes – not of the federal government. Dr. Edwin Vieira’s short video shows how the State Militia were replaced by the federally controlled National Guard.

4 The Constitution of the State of Connecticut says at Article I: “SEC. 15. Every citizen has a right to bear arms in defense of himself and the state.”

5 See A SERIOUS QUESTION FOR THE NRA, by Dr. Edwin Vieira, re revitalization of the Militia of the several States. Dr. Vieira’s mind is a delight.

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July 19, 2017 Posted by | 2nd Amendment, concealed carry reciprocity act, gun control, Militia | , , , , , , , | 78 Comments

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