Rob Natelson Perverts the Necessary and Proper Clause and Thinks in Circles

By Publius Huldah.

In former law professor Rob Natelson’s recent paper, “No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention” [read it HERE and click on it to enlarge], he makes several untrue statements and commits the gross fallacy of making a circular argument which begs the question.

Natelson is the intellectual guru of those pushing for an Article V convention. Among the false claims they make is that a convention will be controlled by the States, and Congress has nothing to do with it. ¹

That false claim rests on Natelson’s (1) fanciful theory of “customs”, (2) his tortured interpretation of the necessary and proper clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic.

I’ll show you.

What Does Article V Say?

Article V provides two methods of proposing amendments to our Constitution. Congress proposes amendments and submits them to the States for ratification; or Congress “calls” a convention if 2/3 of the States apply to Congress for a convention. All our existing 27 amendments were proposed using the first method. We have never had a convention under Article V – for good reason. ²

What does the Necessary and Proper Clause Say?

Article I, §8, last clause says:

“The Congress shall have Power” … “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department ³ or Officer thereof.” [boldface mine]

The Federalist Papers confirm the plain language of the Constitution: the quoted clause delegates to Congress the power to make laws for carrying out the powers delegated to each branch of the federal government. ⁴

How Does the Necessary and Proper Clause Apply to Article V?

Article V delegates to Congress the power to “call” the convention. The necessary and proper clause delegates to Congress the power to make all laws necessary and proper to carry out its power to “call” the convention.

The April 11, 2014 Report of the Congressional Research Service ⁵ shows that Congress recognizes that it has authority over both methods of amending the Constitution, and that Congress claims the power to organize & set up a convention.

But Natelson – mind, he is their “cutting edge intellectual” – insists that the necessary and proper clause does NOT delegate to Congress power to organize & set up an Article V convention.

Well, well! Let’s look at Natelson’s four arguments:

(1) Natelson’s Fanciful Theory of “Customs”

A convention called under Article V of our Constitution is governed by provisions in our Constitution: Article V and Article I, §8, last clause – the “necessary and proper” clause.

But Natelson has long insisted that customs followed at various conventions during our “Founding Era” determine how a convention called under Article V will be organized & set up. He says in his paper:

“… An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.”

“Founding Era” customs supersede our Constitution? And where does Article V say a convention called under Article V is an “interstate” convention?

(2) Natelson’s Tortured Interpretation of the Necessary and Proper Clause

Natelson says the necessary and proper clause:

“… is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. …” [emphasis mine]

A “rule of interpretation”? As authority for this claim, Natelson cites a book co-authored by his own illustrious self which you can buy for $34.99.

So! While Hamilton and Madison said in The Federalist Papers ⁴ that the necessary and proper clause was a “grant of power to Congress” to make the laws to execute the powers delegated;

and Madison and Thomas Jefferson said The Federalist Papers were:

“an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning” ⁶

Natelson says the clause is a “rule of interpretation” instead of a “grant of power”, and his $34.99 book is authoritative instead of The Federalist Papers.

(3) Natelson’s Misrepresentations of Supreme Court Cases ⁷

Natelson next asserts “the Necessary and Proper Clause does not extend to the amendment process” because when Congress acts on Article V, it is not a Department or Branch of the federal government. Instead, it is an “ad hoc assembly”.

Congress is sometimes not a branch of the federal government? It is sometimes an ad hoc assembly? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!

But Natelson says he “knows” this from the “Founding Era record”, from subsequent history, and from decisions of the U.S. Supreme Court, such as U.S. v. Sprague (1931).

Of course, Natelson doesn’t show where the “Founding Era record” says this; he doesn’t show why assemblies which met during our “Founding Era” are relevant to a convention called under Article V; he doesn’t show where “subsequent history” says this; and he doesn’t tell the truth about the holding in U.S. v. Sprague.

The issue in U.S. v. Sprague was whether the 18^th 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 Amendment by State Legislatures instead of by conventions in each State.

U.S. v. Sprague has nothing to do with what Natelson claims it says!

Yet, Natelson goes on to say he “knows” that Congress can’t pass laws structuring the Convention because a “long list of 20^th century cases” holds that “ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).”

Congress can’t pass laws organizing a convention under Article V? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that! And the Supreme Court case Natelson cited doesn’t say it either!

Of course, Natelson doesn’t provide this “long list of 20^th century cases”; and the one case he did cite, Leser v. Garnett, has nothing to do with Congress’ law making powers.

The issue in Leser v. Garnett was whether States – whose State Constitutions restricted voting to men – could ratify an Amendment to the federal Constitution which allowed women to vote. The Supreme Court held that when State Legislatures ratify proposed amendments to the federal Constitution, they are performing a federal function derived from the federal Constitution and it transcends any limitations imposed by State Constitutions. So! Provisions in State Constitutions restricting voting to men did not prevent State Legislatures from ratifying an amendment to the federal Constitution which would have supremacy over a contrary provision in the State Constitution.

(4) Natelson’s Fallacious Circular Argument Begs The Question (Petitio Principii) ⁸

Now let’s look at Natelson’s crimes against the Laws of Logic.

The fallacy of begging the question is committed when one assumes as true the conclusion he seeks to prove. An argument is circular when one seeks to prove the premise from the conclusion.

Natelson was supposed to prove that the necessary and proper clause does not give Congress power to make laws to organize & set up a convention under Article V.

But – as you have seen – he didn’t prove it. So he assumed it to be true. He asserts as true:

“The framers inserted the ‘Convention for proposing Amendments’ in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference.” [emphasis mine]

Since he assumes this to be true – he concludes that the necessary and proper clause can’t give Congress power to make laws to organize & set up a convention under Article V. He says:

“Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress?”

That’s where he commits the fallacy of circular reasoning.

And what he slips and slides over is this inconvenient fact: That Congress has the power under the necessary and proper clause to make the laws necessary and proper to organize the convention, doesn’t interfere one whit with the Delegates’  inherent and plenipotentiary powers to do whatever they want at a convention – including writing a new Constitution with whatever mode of ratification they want.

Conclusion

Yet, Natelson’s work is the “authority” on which those who seek to force an Article V convention on us rely – a slender reed, to be sure. Take heed, America!

Endnotes:

¹ REMEMBER THIS: Whether Congress or the States organize & set up a convention is NOT the critical issue. The delegates – whoever selects them – are vested with that inherent sovereign power to throw off our Constitution and propose a new one (Declaration of Independence, 2^nd para). The new one will have its own new mode of ratification.

² Brilliant men warn against an Article V convention. It is immoral to dismiss their warnings:

Alexander Hamilton writes of “the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded…”  Federalist No. 85 (9^th para)

James Madison writes in his Nov. 2, 1788 letter to Turberville that an Art. V convention would give “the most violent partizans” and “individuals of insidious views” “a dangerous opportunity of sapping the very foundations of the fabric” of our Country. In Federalist No. 49, he shows that the convention method is NOT GOOD to correct breaches of the federal constitution because the People aren’t philosophers – they tend to believe what others believe.  And the very legislators who caused the problem would get themselves seats at the convention so they could control the outcome.

Former US Supreme Court Justice Arthur Goldberg reminds us in his Sep. 14, 1986 article in The Miami Herald, that at the convention of 1787, the delegates ignored their instructions from the Continental Congress and instead of proposing amendments to the Articles of Confederation, wrote a new Constitution. He warns that “…any attempt at limiting the agenda [of the convention] would almost certainly be unenforceable.”

Former US Supreme Court Chief Justice Warren Berger warns in his June 1988 letter to Phyllis Schlafly that “there is no effective way to limit or muzzle the actions of a Constitutional Convention”; “After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda”; and “A new Convention could plunge our Nation into constitutional confusion and confrontation at every turn…”

³ In Federalist No. 48, Madison refers to the 3 branches of the fed gov’t as “departments”.

⁴ Federalist No. 33 is devoted to the necessary and proper clause. Hamilton writes:

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? …. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws…” (3^rd para) [caps Hamilton’s; boldface mine]

In Federalist No. 44, under “The SIXTH and last class” of powers, Madison refers to the necessary and proper clause as a grant of power to Congress by which efficacy is given to all the rest of the powers and that “…Without the SUBSTANCE of this power, the whole Constitution would be a dead letter….” [caps Madison’s; boldface mine].

⁵ HERE is the CRS Report. The Report exposes as false the assurances that the States would be in control of a 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 (1) receiving, judging, and recording state applications; . . . (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4)

“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37)

“…A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?. . .” [then follows a discussion of different views on this undecided issue] (page 41)

“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)

Page 40 of the Report shows there doesn’t seem to be any:

“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “

So! As the CRS Report states 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.”

Do you see? But by then, it will be too late to stop it.

Furthermore, as all lawyers should know, since the power to call the Convention is delegated to Congress, the supreme Court is unlikely to interfere with Congress’ decisions in this regard because it is a “political question” for Congress alone to decide. See short discussion of “political questions” HERE.

⁶ See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they acknowledged the authoritative status of The Federalist Papers and made them one of the texts books for the Law School.

⁷ See Robert Brown’s astute discussion of this issue in Mr. Brown’s Face Book Note HERE.

⁸ Give your Family and Country a wonderful gift: Everybody LEARN LOGIC – it’s fun to play the “spot the fallacy” game! These delightful books are marked 12 years and up, but much younger children can learn the fallacies. My Papa started teaching me before first grade. Look at The Fallacy Detective and The Thinking Toolbox. PH

revised Jan 21, 2023

Straight Talk About An Article V Convention

By Publius Huldah

This speech was presented to Campaign For Liberty – Memphis on March 24, 2014. It exposes some of the false claims made by those pushing for the so-called “convention of states”. ¹

Below are hyperlinks to the exhibits referred to in the speech. Additional resources are also included.

The one page Chart which illustrates our Declaration, Constitution, and federal system is HERE.

The Congressional Research Service (CRS) Report ² cited in the speech was dated March 7, 2014. CRS’s revised Report, dated April 11, 2014, is HERE.   The Report exposes as false the assurances that the States would be in control of a 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; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4) ³

“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37; see also page 41)

“. . . A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?. . .” [then follows a discussion of different views on this undecided issue] (page 41)

“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)

Page 40 of the Report shows there doesn’t seem to be any:

“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “

So! As the CRS Report states 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.”

Do you see? But by then, it will be too late to stop it. HERE is former US Supreme Court Chief Justice Warren Burger’s letter confirming this. ⁴

The text of the “parental rights” amendment is HERE. For two papers showing how Michael Farris’ proposed amendment delegates power over children to the federal and State governments, go HERE  and, for the follow up paper, HERE.

To see how six of Mark Levin’s so-called “liberty amendments” do the opposite of what he claims, go HERE.

To see – on one page – proof of the original intents of the “interstate commerce”, “general welfare”, and “necessary and proper” clauses, go HERE.

The proponents of a convention portray the States as victims of federal tyranny. But the Truth is that the States voluntarily surrendered their retained powers, and the natural rights of The People, TO the federal government. And they did it for federal funds. Today, States get from 20% (Alaska) to 45.3% (Mississippi) of their State budgets from the federal government. State governments don’t want to rein in the feds! The people who run your State will do anything to keep their federal funds. HERE is the Pew Report.

Our Framers – those who actually signed the Constitution – NEVER said the purpose of amendments is to rein in the feds if they usurp powers. What they actually said is:

• amendments remedy defects in the Constitution (Hamilton at the federal convention on Sep. 10, 1787);
• useful amendments would address the “organization of the government, not … the mass of its powers” (Federalist No. 85, 13^th para); and
• “amendment of errors” & “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)

HERE are the Articles of Confederation. Note that Art. XIII required approval of amendments by every State.

HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:

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

HERE is James Madison’s letter of Nov. 2, 1788 to Turberville. Copy it to word processing, make paragraph breaks, & highlight it. Madison NEVER supported the convention method of amending our Constitution.

HERE is Joe Wolverton’s article about the Socialists’ involvement in the push for a convention.

HERE is the Constitution for the Newstates of America. Article XII addresses ratification by a referendum called by the President. Read HERE about the proposed Constitution for the New Socialist Republic in North America. Read them and see what is being planned for you by people you think are on your side.

HERE is the screen shot of Jordan Sillars’ comment re re-writing the Constitution.

For Q’s & A’s on this issue, go HERE.

Endnotes:

¹ There is no such thing as a “convention of states” to propose amendments. The term is a marketing gimmick used by proponents of an Article V convention to manipulate people into believing that the States would control an Article V convention – from start to finish.

Article V, US Constitution, provides two methods for proposing amendments to the Constitution:

1. Congress proposes amendments and submits them to the States for ratification [the method we used for our existing 27 Amendments]; or

2. Congress calls a convention for the purpose of proposing amendments [for good reason, we have never used this method].

² Even though we have never had an Article V convention; Congress has examined procedures for “calling” a convention so as to be ready if the need arises. The CRS Report proves that Congress has historically viewed its powers respecting “calling” a convention as exclusive and extensive. I thank Robert Brown for bringing the CRS Report to my attention.

³ The position Congress has historically taken in this regard is totally consistent with Article I, Sec. 8, last clause, which delegates to Congress power to make all laws “necessary and proper” to carry out the power vested in Congress at Art. V to “call” the convention.

⁴ Folks! For the sake of your Posterity, you must understand this: After a convention is convened, the delegates can do whatever they want – including coming up with an entirely new Constitution with its own new method of ratification. Chief Justice Burger wrote in his June 22, 1988 letter to Mrs. Phyllis Schlafly:

“… there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress “for the sole and express purpose. . .”

The federal convention of 1787, which was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation”, should serve as a warning: The delegates to the 1787 convention ignored their instructions from the Continental Congress [and from their States]; ignored Art. XIII of the Articles of Confederation which required the States to obey Congress on matters covered by the Articles, and wrote an entirely NEW Constitution with a NEW method of ratification which required only 9 of the 13 States for ratification.

Credits:  Many thanks to Devvy Kidd, Blue Tail Gadfly, and M. Craig Elachie, from whom I lifted the very best lines in the speech. PH

Posted October 11, 2014.

We Don’t Need an Article V Convention to “Clarify” Our Constitution!

By Publius Huldah

Those pushing for the so-called “convention of states” ¹ say we must amend the Constitution because the people in Washington “don’t understand it”.

Rubbish!

Our Constitution is so simple that Alexander Hamilton expected us to be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority”; and he said the people are “the natural guardians of the Constitution” (Federalist No. 16, next to last para).

Well then, if our Constitution is something The People are expected to know and enforce; is it plausible to assert that the Representatives we send to Washington – and even supreme Court Justices – are incapable of understanding it?

Justices on the supreme Court have been perverting our Constitution for a long time. Do they do this because they are so stupid they don’t understand our Constitution? Of course not! They violate our Constitution because they claim the right to impose their own personal views on the rest of us.

As every American over the age of 10 should know, the powers our federal Constitution delegates to Congress and the President are limited & defined – they are “enumerated”.

So! Progressives on the supreme Court had to find a way to get around the limitations imposed by the enumerated powers. And they did it by perverting three clauses: the “interstate commerce”, “general welfare”, and “necessary and proper” clauses.

However, a quick look in The Federalist Papers shows the original intents of these clauses. We don’t need a convention to draft amendments showing what these clauses mean – just look it up in The Federalist! But! You don’t have to – I’ve already done it – and here it is: ²

The “interstate commerce” clause (Art. I, §8, cl. 3)

Webster’s 1828 Dictionary says “commerce” is the buying and selling of goods.

In Federalist No. 22 (4th para) and Federalist No. 42 (9th & 10th paras), Hamilton and Madison explain the primary purpose of the clause: To prohibit the States from imposing taxes & tolls on merchandize as it is transported through the States for purposes of buying and selling.

The “general welfare” clause (Preamble & Art. I, §8, cl. 1)

Webster’s 1828 Dictionary defines “welfare” as:

“2. Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government; applied to states.”

It has nothing to do with handouts, public relief, or the feds doing whatever they think is a good idea.

In Federalist No. 41 (last 4 paras), Madison points out that Art. I, § 8, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the “general phrase”. It is “error” to focus on “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides an unlimited power is “an absurdity”.

So yes! The powers of Congress over the Country at Large really are limited primarily to those few listed at Art. I, §8, clauses 3-16.

Our Framers understood that “general Welfare”, i.e., the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government, was possible only with a federal government of strictly limited powers. [Let that sink in.]

The “necessary and proper” clause (Art. I, §8, last clause)

This clause delegates to Congress power to pass all laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article”; a power to do something must be a power to pass all laws necessary and proper for the execution of that power, and thus the clause is “perfectly harmless”, a  “tautology or redundancy” (Federalist No. 33, 2nd & 3rd paras). Madison writes to the same effect in (Federalist No. 44, under his discussion of the SIXTH class of powers).

So the clause permits the execution of powers already delegated and enumerated in the Constitution.  No additional substantive powers are granted by the clause.

Learn the enumerated powers delegated to Congress & to the President. With our Votes & Nullification of unconstitutional acts, let’s enforce the Constitution we already have. Don’t let others change or replace it! PH

Endnotes:

¹ The term, “convention of states”, is deliberately deceptive. The only convention for proposing amendments is the one at Article V of our Constitution – and Congress has the power to “call” it. And since Article I, Sec. 8, last clause, vests in Congress all powers “necessary and proper” to carry out its power to “call” the convention, Congress decides all organizational issues, such as, the number and selection process for delegates.

But once the delegates (whoever they turn out to be) are seated, neither Congress nor the States have any control over them. The delegates can do whatever they want. They can propose a new Constitution with a new method of ratification. Here are two Constitutions already waiting in the wings: The “Constitution for the New Socialist Republic in North America”, which you can read about from their own website HERE and from JBS HERE; or the “Constitution for the Newstates of America”, which you can read HERE. Do you think that any of the delegates (remember, you have no idea who they will be), can be bribed to introduce and vote for one of these proposed constitutions?

Disabuse yourself of the false notion that “the States have to ratify anything the convention does”. That is the second biggest lie ever told: The proposed “Constitution for the Newstates of America” is ratified by a Referendum called by the President. The States, as political bodies, never get the opportunity to reject it – they are dissolved and replaced by regions answerable directly to the new national government.

The ONLY precedent we have for an “amendments convention” is the federal convention of 1787 which drafted & proposed our existing Constitution.

HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:

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

The delegates ignored their instructions from the Continental Congress (and from their respective States) and wrote an entirely new Constitution – the one we now have. Furthermore, whereas Article XIII of the Articles of Confederation (LINK) required all of the then 13 States to ratify Amendments to the Articles; Article VII of the new Constitution required only 9 of the 13 States to ratify the new Constitution.

Do you see?

² Our People don’t have a clue about what these 3 clauses mean. So YOU learn the original intent. On social media, start teaching that original intent to The People. Help turn on the lights in their minds. PH

Propaganda And The Conspiracy against Our Constitution

By Publius Huldah

The “Convention of States” (COS) Frequently Asked Questions (FAQs) page contains 989 words – none of them true – except for these which appear in the first paragraph:

“The federal government is spending this country into the ground … It’s time American citizens took a stand and made a legitimate effort to curb the power … of the federal government.”

In my last paper, I showed how our Constitution itemizes what Congress is authorized to spend money on; and that we have a $17 trillion debt because everyone ignores the limits the Constitution places on Congress’ spending powers.

To curb the federal government, We must do things we have neglected for over 100 years: Reclaim our role as “the natural guardians of the Constitution”; ¹ learn our Founding Principles & Documents; enforce them with nullification and by rejecting candidates who don’t know them by heart; stop relying on politicians to handle things; ² reclaim personal responsibility; and get ready for a rocky road ahead.

But the “convention of states” conspirators ³ say the only solution is a convention to “propose amendments” to the Constitution.  They tell lies about nullification – the one remedy our Framers actually advised when the feds usurp powers. They say our Constitution is the problem. They say it contains “loopholes and vague phraseology” which politicians exploit. They suggest the States are victims of federal tyranny; are the ones to “fix” our Constitution; and that the States call and control the convention.  They say it is impossible for the convention to force a new Constitution down our throats.  But I submit that is precisely what they intend to do.

Jordan Sillars, Communications Director for COS, let the cat out of the bag when he said:

“… 3. I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution…” [boldface mine].

Contrary to what the conspirators say, there is no way to stop the convention from “running away”: All the delegates need do is come up with a new Constitution. It can provide for any method of ratification they want.

That is what happened in 1787 when the Continental Congress called a convention “for the sole and express purpose of revising the Articles of Confederation”. ⁴ The delegates ignored their instructions and wrote an entirely new Constitution with its own new method of ratification.

The Conspirators’ Campaign of Propaganda against The People

The conspirators’ claims spit in the Face of Facts and Reality.  So how have they been able to convince people to believe their claims; and go along with their destructive scheme?

They are exploiting the ignorance and desperation of The People by manipulating them with propaganda. Their FAQ’s employ nine well known techniques of propaganda: ⁵

• Assume the Major Premise
• Appeal to Desperation
• Claim there is a Panacea
• Repetition for Emphasis
• The Big Lie
• Fabricated Legal Principles & Precedent  [“Imaginary Evidence”]
• Oversimplify
• Exploit Wishful Thinking
• The Self-sell.

Assume the Major Premises

Throughout the FAQs, it is assumed that:

1. The purpose of amendments is to control the federal government;
2. Our Constitution is defective;
3. That there is such a thing as a “convention of states” which States call and control;
4. States will protect us from the federal government; and
5. The federal government will obey amendments to the Constitution.

These are the five major assumptions upon which their scam is constructed. They don’t prove them – they know many will blindly accept them. Only thoughtful people examine assumptions.

But you can become a “thoughtful person” if you will start examining what you are told.

Their first major premise: The Truth is two (2) delegates at the Federal Convention of 1787 (Mason & Randolph) wanted States to be able to amend the Constitution without involvement of Congress. The conspirators’ crazy and dishonest claim that the purpose of amendments is to control the federal government is based on Mason’s & Randolph’s comments you can find here.  Theirs was the minority view; Art. V provides for Congress’ involvement in both methods of amendment; and Mason & Randolph objected so much to our Constitution they refused to sign it.

Our Framers at the Federal Convention of 1787 understood that the purpose of amendments is to remedy defects in the Constitution [slavery]; and that the novelty and difficulty of what they were doing would require periodic revision [the 11^th, 12^th, & 27^th amendments].  Hamilton said in Federalist No. 85 (13^th para) that useful amendments would address the “organization of the government, not … the mass of its powers”.  Madison said in Federalist No. 43 (at 8.) that “useful alterations will be suggested by experience.”

People are deceived by the conspirators’ first premise because they don’t understand that our Constitution created a federal government of strictly limited and defined – enumerated – powers. Everything the feds have authority to do is itemized in our Constitution.  Does our Constitution delegate to the feds power to ban incandescent light bulbs, determine portion sizes of school lunches, and force us into obamacare?  No! So what do you do when the feds usurp powers over such objects?  Amend the Constitution?  Really?  How would you amend the Constitution to fix such usurpations?  Make an Amendment saying the feds can’t regulate light bulbs?  And so on for every power they usurp?

It is crazy to say the purpose of amendments is to control the federal government. When the feds usurp powers not delegated, no amendment saying they can’t do what they did will restrain them. They violated the Constitution when they usurped the power in the first place!

Furthermore, the amendments they write don’t restrict the feds:  Michael Farris’ “parental rights amendment” delegates power over children to the federal and state governments, and empowers judges to determine the extent of that power! One of Randy Barnett’s amendments gives the feds lawful power over “harmful emissions” [EPA now exercises usurped powers], and power “to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States” [read that again!]. Mark Levin’s amendments also increase the powers of the feds by legalizing powers they have usurped. His “override” amendments remove the Constitution as the standard of what is lawful and what is not, and substitute majority vote. Yet the conspirators say such amendments would curb the federal government!

But we must not be distracted by proposed amendments. Their amendments are most likely a pretext to get a “convention” so they can carry out their plot to replace our Constitution.

Their second major premise: Our Constitution is the cause of our problems.

Except for some of the existing Amendments Americans already got manipulated into supporting, what is wrong with our Constitution?  For the most part, it is easy to understand. For phrases federal judges have perverted – such as the “interstate commerce”, “general welfare”, & “necessary and proper” clauses, a quick look into The Federalist Papers usually reveals the original intent.  I illustrate that here.

This one page chart illustrates the structure of our federal system and the enumerated powers delegated to the federal government. What needs “fixing”?  We are in our present mess because for 100 years, we elected & re-elected politicians to federal and state office who ignore it.

All our Constitution wants is (1) to be learned & obeyed; and (2) to have repealed some of the existing Amendments. Repeal those the same way we repealed the 18^th Amendment. We don’t need a “convention” for that. Instead of sending ignorant phonies to Congress; send people who know the Constitution [make them pass tests before you support them] and commit to repealing the 17^th Amendment and other ill-considered Amendments.

Their third major premise: That there is such a thing as a “convention of states”: The FAQs say “Article V, Section 2 of the Constitution” gives state legislatures the power to call a convention; that Federalist No. 85 says Congress has “no control over the delegates”; that “Virginia called the Philadelphia Convention of 1787”; and that “Basic common sense” and “Agency law 101” says “Each state chooses its own delegates”.

Those claims are truly bizarre.

Read Art. V:  There is no “Section 2”.  Article V says Congress calls the convention – not state legislatures.  All state legislatures can do is apply to Congress for Congress to call it.

Federalist No. 85 says Congress must call a convention when two-thirds of the States apply for it. Hamilton does not say Congress has “no control over the delegates”! ⁶

Virginia did not “call” the Philadelphia Convention of 1787!  The Continental Congress did.  Their Resolution calling the 1787 convention, pursuant to Art. 13 of The Articles of Confederation, is quoted at endnote 4.  And when the Continental Congress called the 1787 convention, they specifically provided that delegates would be appointed by the States. ⁴

But Art. I, Sec. 8, last clause, of our Constitution delegates to Congress power to make all laws necessary and proper to carry out the powers vested in it by Art. V.  So Congress has the power to organize the convention, appoint the chairman and delegates, etc.  The Mason & Randolph view was rejected. And the clear words of our Constitution cannot be changed by some ignorant person’s subjective conceptions of “common sense” and “Agency law 101”!

Their fourth major premise: That States are victims of federal tyranny and will rein in the federal government given the opportunity at a convention.

But look at what States have done. They have acquiesced in federal usurpations in exchange for federal funds. The States adopted unconstitutional federal education schemes such as “race to the top” and common core for the federal grant money.

DHS is becoming America’s equivalent of the East German STASI and Soviet KGB. With the connivance of State governments, DHS is taking over local & State law enforcement. And read about the fusion centers in every State – the States acquiesced!

John Barnes shows that State governments no longer focus on managing “a relatively self-contained polis”, but on “siphoning as much money as possible from the federal government”; and that “state government is becoming a mere pass-through for federal funds and an apparatus of federal policy.”  Barnes shows us how State governments all over the Country are bloated with bureaucrats whose job is to “maximize federal funding”.

Google “maximize federal funding” – you will see.  No rational person can believe that the politicians in the States – who are the ones who sold us to the feds in the first place – are the ones to rescue us from the feds.  If the States wanted to, they could rein in the feds right now by using the remedy our Framers really did advise: Nullification.

Their fifth major premise: That the federal government will obey amendments.

But think! The feds continually violate the Constitution we have.  They exercise thousands of usurped powers.

The conspirators insist the feds would obey future amendments because the feds haven’t violated recent amendments, such as women’s suffrage.  Well, of course not!  Of the 15 amendments ratified since the 12^th in 1804; 10 increased the powers of the feds (13^th, 14^th, 15^th, 16^th, 17^th, 18^th, 19^th, 23^rd, 24^th, 26^th); ⁷ and 4 were “housekeeping” amendments (20^th, 22^nd, 25^th, 27^th).

Do you see?

Appeal to Desperation

The gist of this propaganda technique is to argue that we must do something – we can’t do nothing – so let’s do what I propose.  And we better do it “before it is too late”.

Many Americans are in a panic over the rapidity with which Obama – with the connivance of the Republican and Democrat parties and the State governments – is setting up a national totalitarian police state.

But we mustn’t allow the conspirators to exploit our desperation so as to induce us into surrendering our Constitution. All Americans who have fallen for the conspirators’ scam have been manipulated by THIS technique.

We have effective options.  We have failed to gain the knowledge which would enable us to be the Sovereigns we are supposed to be.  We have contented ourselves with blind faith in talk show hosts, politicians, and other charlatans. We are what needs fixing.

Claim there is a Panacea

With this, you claim that what you are offering is a magical cure for all the problems.

The conspirators say all we have to do to fix our problems is have a “convention of states”. They say they will propose amendments to the Constitution, and the federal government will be “fixed”.  They ignore the facts that everyone has ignored the Constitution we have; that it was the States who sold us out in the first place; and that We The People kept reelecting ignorant & glib politicians who violate the Constitution to state & federal office.

There is no such thing as a panacea. We have a long road ahead of us to fix the problems We caused by our own folly, ignorance, and laziness.

Repetition for Emphasis

With this, you drive home a few simple and unproven points by repeating them over and over until the public believes them.

The five major premises listed above are repeated over & over & over & over & over.  People believe them because they have been programed to believe them.   

Orange quotes Adolf Hitler:

“It [propaganda] must repeat those points over and over again until the public believes it. The principles behind propaganda are the same principles of mind control, hypnotic suggestion, and mental programming: distraction and repetition. With propaganda, distraction draws attention away from information that is true and directs attention to information that is false. Repetition of the false information imbeds it in your subconscious mind so that your acceptance of its truth becomes a conditioned response. You accept this information as true without thinking whenever it is presented to you again.”

This is why most of mankind has lived under tyranny.  People will believe anything if they hear it enough.  Folks!  You better start facing Reality and taking charge of what you believe.

The Big Lie

The gist of this is to:

 “…keep repeating the same lie[s] over and over, in spite of all arguments and evidence to the contrary, until people believe it.  Massive repetition is essential.”

It has already been proved by this and other writers that everything the conspirators say about nullification and a “convention” is false. But they keep repeating it.  Why?  Because massive repetition of lies will induce people to believe them.

Fabricated Legal Principles & Precedent [“Imaginary Evidence”]

The FAQs make various assertions about how this “convention of states” would operate, such as:

• “The applications must request a convention of states for the same subject matter” or “same issue”;
• “States are free to develop their own selection process for choosing their delegates…  each state has one vote at the convention.”

The FAQs say this reflects “widely accepted” “procedures and rules” Rob Natelson found during his “extensive research”, which were followed in the “interstate conventions” which “were common” during “the Founding Era”.

Folks! If these customs existed and established binding precedent on the Congress we created when we ratified our Constitution, why did James Madison not know about them?  During the Federal Convention of 1787, Madison said, respecting Article V:

September 10, 1787: Mr. Madison remarked on the vagueness of the terms, “call a Convention for the purpose”, as sufficient reason for reconsidering the article.  “How was a Convention to be formed? – by what rule decide? – what the force of its acts?”

September 15, 1787: Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two-thirds of the States, as to call a Convention on the like application.  He saw no objection, however, against providing for a Convention for the purpose of amendments, except only that difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided.

Do you see?  And don’t forget: Article V says Congress calls the convention; and Art. I, Sec. 8, last clause, delegates to Congress power to make laws needed to execute the powers vested in it by Article V. This constitutional provision supersedes any “customs” to the contrary.

Oversimplify

 The gist of this technique is to:

“Reduce the issue to a few simple sentences that any blithering idiot can understand. Leave out all the complicated facts and confounding factors. Reduce the debate to just a few simple-minded sentences and slogans. Reduce complex multi-faceted issues to simplistic statements that can be expressed in a short sound bite.”

Aren’t the FAQs a few simple concepts any blithering idiot can understand?

It is this and other writers who point out the “complicated facts”.  Are we too stupid to be free?

Exploit Wishful Thinking

With this technique, you tell people what they want to hear, rather than the unpleasant truths.

The conspirators are offering an easy way out which satisfies a deep yearning: to feel good. We don’t have to accept responsibility for our own failures to become a “natural guardian of the Constitution”; we are encouraged to blame shift and see the Constitution as the cause of our problems; and we don’t have to trouble ourselves to actually learn our Founding Principles & Documents.  All we have to do is join the conspirators.  And then, everything will be wonderful.

The Self-sell

This technique gets people to convince themselves of your ideas by asking for their help in promoting your ideas. “They will sell themselves on the idea as they try to sell it to others.”

Orange gives this example of the Self-sell:  In “Cold Turkey”, Dick Van Dyke plays a preacher who wants everyone in his town to quit smoking.  He got the local Neo-Nazis to quit by enlisting them as “smoking-ban enforcers”.

The conspirators want to build a “grassroots operation” of volunteers to sell their scheme to State legislators [the ones who already sold us to the feds for federal funds.] And we have seen these volunteers’ mindless comments on the internet as they regurgitate the talking points in the FAQs – they sell themselves as they try to sell to others. ⁸

Conclusion

You better wise up now. Study this chart. Flesh it out with your readings of our Declaration of Independence and Constitution.  Have study groups. What Hamilton asked you to be is not difficult.

Endnotes:

¹ Our Framers never saw courts as the final authority.  See James Madison Rebukes Nullification Deniers.  Hamilton expected us to be “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority” (Federalist No. 16, next to last para).

² Politicians are as ignorant as those who elect them. But we want a savior who will rescue us without any effort on our part. So we look to politicians to save us. They always betray us; and we are presented with still another phony who says what we want to hear, whom we support, and who betrays us. This happens because we don’t know our Constitution, and thus can’t evaluate the politicians.  If WE knew our Constitution, those smooth-talking ignoramuses wouldn’t have a chance of getting elected. You would see right through them.

³ Progressives & phony “conservatives” have worked hand in hand for many years to replace our Constitution. See Richard D. Fry, “Convention of States”: The Wrong Solution to the Wrong Problem.

⁴ The conspirators tell the brazen lie that the convention “cannot throw out the Constitution because it derives its authority from the Constitution.”  Rubbish!  Pursuant to Article XIII of The Articles of Confederation, the Continental Congress resolved on February 21, 1787 (p 71-74):

“Resolved that in the opinion of Congress it is expedient that on the second Monday in May next a Convention of delegates who shall have been appointed by the several states be held at Philadelphia for the sole and express purpose of revising the Articles of Confederation and reporting to Congress and the several legislatures such alterations and provisions therein as shall when agreed to in Congress and confirmed by the states render the federal constitution adequate to the exigencies of Government & the preservation of the Union.” [emphasis mine]

The delegates ignored these limitations and wrote a new Constitution with a new method of ratification.  It is impossible to stop this from happening at another convention. And George Washington, James Madison, Ben Franklin, and Alexander Hamilton won’t be there.

The conspirators also say a “Constitutional Convention” is safe because no amendment will be passed which is not ratified by ¾ of the States. This is deceptive because the concern is about a runaway convention & a new Constitution – not amendments. Since a new Constitution can have any method of ratification the delegates want, it can be forced on us.

⁵ See Propaganda and Debating Techniques by A. Orange. Orange is a “librul”, and on a vendetta against AA.  But he understands how scoundrels use propaganda to deceive the unthinking.  See how Adolf Hitler used these same techniques to manipulate the German People.

⁶ I addressed this same lie in “Mark Levin Refuted: Keep the Feds in Check with Nullification, not Amendments!” under the subheading, “What Levin Claims Article V Says”.  Congress’ lack of discretion is limited to the issue of “to call or not to call” a convention once the requisite number of States has applied for it.  After Congress “calls” the convention, Art. I, Sec. 8, last clause kicks in to empower Congress to make all laws necessary to carry out the call.

⁷ The result of the voting amendments (15^th, 19^th, 24^th, 26^th)was to transfer the power of determining voter qualifications from the States (Art. I, Sec. 2, cl.1) to the federal government.

It was necessary to amend the Constitution to remedy the defects which permitted slavery; but the 13^th, 14^th, and 15^th Amendments delegated powers over the States to the federal government.  It would have been better to merely repeal the provisions at Art. I, Sec. 2, cl.3 which provided for a partial counting of slaves; and Art. IV, Sec. 2, cl. 3 which permitted Congress to make laws against fugitive slaves.  And if the States had been wise instead of foolish, they would have banned slavery and extended citizenship & civil rights to freed slaves on their own, and provided the education to help them make the transition from slave to citizen.  Stupidity and wickedness are not cheap, Folks.  And Amendments are a very tricky business.

⁸ There is nothing wrong with asking others to help promote ideas – when the ideas are True and Good.  But when the ideas are destructive and false, the self-sell is immoral manipulation. PH

January 28, 2014

The “Convention of States” Scam, the War over the Constitution, and how the States Sold the Reserved Powers to the Feds.

By Publius Huldah

Our Constitution is a glorious document. This one page chart depicts the Structure of the federal government we created when we ratified our Constitution; and lists the “limited & enumerated powers” we delegated to the federal government over the Country at Large.

In a nutshell, our Constitution authorizes the federal government to handle the following objects for the Country at Large:

• Military defense, international commerce & relations;
• Control immigration & naturalization of new citizens;
• Domestically, to create a uniform commercial system:  weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
• With some of the amendments, secure certain civil rights.

Basically, that’s it.  As stated in the 10^th Amendment, all others powers are reserved by the States or The People.

But for 100 years, almost everyone in our Country has ignored our Constitution.  Thus, instead of restricting spending to the enumerated objects of its powers, the people WE send to Congress spend money on what anybody wants – and so gave us a debt of $17 trillion.  Instead of restricting lawmaking to the enumerated objects of its powers, the people WE send to Congress make laws on whatever they like. The President WE elected tramples all over the Constitution; and due to the connivance, cowardice, and ignorance of Congress, the supreme Court, State governments, and the American People, is seizing totalitarian power.

WE are in terrible trouble.

And it is the phony right wing which is seducing the American People into taking the final jump off the cliff.

Michael Farris, head of the Convention of States ¹ project, begins his video with this spiel:

“We all know that our government is way off track. The debt is astronomical and is going to cripple not only our own freedom and our own economy, but our children and our grandchildren are going to be effectively slaves, paying for all the things that we’re spending money on today.”

That part of his video is true.

But the purpose of their spiels is to make you believe they are on your side.  You must look behind the spiels and think carefully about what they are proposing as “solutions”.  Much is at stake:

THIS IS THE WAR over our Constitution and Country.  And here are the two sides:

Learn & Enforce our Existing Constitution!

One side proposes that we learn & enforce our existing Constitution of limited & enumerated powers.  We show that our Framers advised us to enforce our Constitution by (1) electing better representatives to annul the acts of the usurpers, ² or by (2) nullification of unconstitutional acts.

To illustrate: What would our Country’s financial condition be if WE THE PEOPLE had enforced the enumerated powers on Congress?

It is the enumerated powers which list the objects on which Congress may appropriate funds:

• immigration office (Art. I, §8, cl.4)
• mint (Art. I, §8, cl. 5)
• Attorney General (Art. I, §8, cl. 6)
• post offices & post roads (Art. I, §8, cl. 7)
• patent & copyright office (Art. I, §8, cl. 8)
• federal courts (Art. I, §8, cl. 9)
• military (Art. I, §8, cls. 11-16)
• the civil list (Art. I, §6, cl.1)
• [and other objects listed in various other articles, sections, &clauses]

Do you get the idea?  The Constitution itemizes what Congress is permitted to spend money on. See also the two geographical areas over which Congress was delegated “general legislative powers”: Art. I, §8, next to last clause, & Art. IV, §3, cl. 2.

The reason we have a debt of $17 trillion is because everyone ignored the Constitution; so Congress spent money on objects outside the scope of its enumerated powers.

Amend Away our Existing Constitution?

But the Randy Barnett ³/ Rob Natelson/ Michael Farris/ Mark Levin camp want a “convention” so they can gut our existing Constitution by amending out the limited & enumerated powers with new amendments which grant general powers to the federal government; or they seek to re-write the Constitution altogether. 

Here are illustrations of how the limited & enumerated powers can be amended out of our Constitution:

It has already been shown how the so-called balanced budget amendment would transform our Constitution from one of enumerated spending powers to one of general spending powers, where spending would be limited only by the amount of revenue the federal government generates or a certain percentage of the GDP. ⁴ But under our existing Constitution, the federal government’s expenditures are limited by the constitutional grants of authority – the enumerated powers.  The problem is everyone ignores the enumerated powers – they never even bothered to learn what they are!

Here is another illustration:  Michael Farris, the grand master of The Spiel, has managed to convince many parents that the only way to protect their parental rights is an amendment to the Constitution which delegates to the federal and State governments constitutional power over their children!

And Mark Levin’s suggested amendments would gut our Constitution.  Most increase the powers of the federal government by making constitutional what is now unconstitutional because it is not an enumerated power.  The amendments pertaining to “overrides” undermine the Constitution as the objective standard of what is lawful and what is not – and substitute majority vote therefor.  These “overrides” would erase the Constitution and replace it with majority (mob) rule.

Or is “re-writing the Constitution” their actual goal?

Farris says in the video:

“…sometimes what you need is not a change of personnel, you need a change of structure. The Founders understood the importance of structure…”

Does that give you cold chills?

How does Farris seek to change the structure?

Please – all of you – look at this one page chart which depicts The Structure of the federal government our Framers gave us:  What needs changing?  Isn’t enforcement what we need?

Jordan Sillars, Communications Director for Farris’ Convention of States Project, let the cat out of the bag:

On September 15, 2013, a discussion on my Face Book page was started about Mark Levin’s clamoring for a “convention of states”.

On or before September 19, Jordon Sillars posted a comment wherein he said:

“… 3. I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution…” [boldface mine].

On September 19 at 1:20 p.m., I responded:

“So, this really is about “re-writing the Constitution”, isn’t it?

And could you name these individuals who are “morally and intellectually capable of re-writing the Constitution”?”

Sillars thereafter deleted his comments, but not before I obtained a screen shot of his quoted comment which you can see here.

Why did he delete his comments?

Now let’s look more at what Farris says in his video:

The False Statements & Silly Arguments of the Proponents of a “convention of States”

1.  After his introduction about the $17 trillion debt, Farris goes on to say:

“The States have the power under Article V to call a convention of the States for the purpose of proposing amendments to the Constitution…”

His statement is false.

The Truth is the States have no authority to call the convention.  That power is delegated to Congress.  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…” [emphasis mine]

Congress calls it.  Not the States.

Furthermore, Dr. Edwin Vieira has pointed out:

 ‘The language “shall call a Convention for proposing Amendments” sets out a constitution duty in Congress. It embraces a constitutional power as well. That brings into play Article I, Section 8, Clause 18, which delegates to Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [that is, in Article I, Section 8, Clauses 1 through 17], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”. The power to “call a Convention for proposing Amendments” is one of those “all other Powers”. Therefore, pursuant to that power, Congress may enact whatever “Law[ ] which shall be necessary and proper for carrying into Execution the * * * Power [to call a Convention]’.

So!  Since Article V vests in Congress the power to call the convention; and since Article I, §8, last clause, vests in Congress the power to make all laws necessary & proper to execute its delegated powers; ⁵ Congress would be  within its constitutional authority to organize the Convention anyway it wants, and to appoint whomsoever it wishes as delegates. ⁶

Now look at this:  The chart on Article V shows that James Madison, Father of our Constitution, remarked on the vagueness of the term, “call a Convention for the purpose”:

“How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (Sep. 10); and “difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided” (Sep. 15, 1787).

Phyllis Schlafly also raised Twenty Questions about a Constitutional Convention.

Congress, pursuant to Article V and Article I, §8, last clause, has the constitutional power to answer all these questions by means of a law.

Folks!  The Farris/Natelson/ Levin camp is not telling you the truth when they say the States decide these issues!

2. Farris then says in his video:

“…in Article V of the Constitution [the Founding Fathers] gave us the solution…”

“…they gave the power to the States to create a new set of rules when the federal government overstepped its boundaries. We can recalibrate the rules to take power away from Washington D.C. and give it back to the people and to the States.”

His statements are both false and silly.

Here is the false part of what he said:

It was not the consensus at the Federal Convention of 1787 that the purpose of Article V was so States could make amendments to the Constitution in order to take power away from a federal government which had usurped power by violating the Constitution.

This chart shows what happened at the Federal Convention of 1787 re development of Article V.

Two delegates (Randolph & Mason, who didn’t sign the Constitution) supported the notion that amendments might be used if the national government should become oppressive.  And they didn’t want Congress to have any power over amendment procedures. Their view was the minority view.

Other delegates (Gov. Morris, Hamilton & Madison) thought Congress ought to be able to propose amendments.  One delegate (Mr. Gerry) worried about States obtaining a convention and binding the Union to innovations which subverted State Constitutions.  Hamilton spoke of amendments to correct defects which would probably appear in the Constitution.

So the final version of Article V provides two methods of proposing amendments to the Constitution.  Congress either:

• Proposes the amendments; or
• “Calls” a convention when the Legislatures of 2/3 of the States apply for it.  [Now see Art. I, §8, last clause.]

Now for the silly parts of what Farris said (and there are two silly parts):

3.  Farris tells us the solution to a federal government which “overstep[s] its boundaries” [violates the Constitution] is to amend the Constitution.

He proposes “to take power away from Washington D.C.” [power the federal government has usurped] by “recalibrate[ing] the rules”.

In other words, the solution to a federal government which violates the Constitution is to amend the Constitution.

Do you see how silly this is?

4.  Farris and his camp also imply that the States are victims of federal tyranny, and are the virtuous & wise ones who can fix our Country if they can just get a convention to propose amendments.

But the States are the ones who sold you out to the federal government in the first place!  I’ll show you:

The 10^th Amendment says:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”.

What happened to these reserved powers?

The States sold them to the federal government.

Let’s use education as an illustration of how the States sold to the federal government your reserved power to educate your own children in the way you see fit.

The Creator God who, as recognized by our Declaration of Independence, endowed us with unalienable rights; assigned to parents the responsibility to provide for the education & moral instruction of their children:  Proverbs 1:8-9, 6:20-21, 13:1, 22:6 & 23:19-22; Genesis 18:19; Deuteronomy 4:9-10 & 6:1-7; Ephesians 6:1-4; 2 Timothy 1:5  & 3:15-17.

Is “education” one of the enumerated powers delegated to the federal government for the Country at large?  No.  So the federal government has no constitutional authority to get involved.  Accordingly, all acts of Congress pertaining to education for the Country at Large, the federal Department of Education, and all their rules & programs are unconstitutional as outside the scope of powers delegated to the federal government.

So why does the federal government dictate all things respecting education?

Because your States sold your God-given responsibility to educate your own children – and your reserved power to do so – to the federal government.  This has been going on for a long time; but most recently your State sold you out for federal grants with the federal government’s “race to the top” and “common core” schemes. ⁷

You have to be ignorant, unthinking, & gullible – a greenhorn – to believe that The States are the men in the white hats who can fix all this with a convention to propose amendments.

Conclusion

The federal government is not the problem – it is the result of our own ignorance, pride and folly.

WE THE PEOPLE, who are “the natural guardians of the Constitution” (Federalist No. 16, next to last para) didn’t trouble ourselves to learn the enumerated powers of Congress and the President.  Do you know them?

I ask my Readers who have been supporting the “convention of States” scheme:  Have you studied our Founding Principles set forth in The Declaration of Independence? Have you studied the text of the Constitution so that you know what it says?

If not, how are you qualified to know how to “fix” a Constitution you never learned?

Are you willing to stake your lives & liberties, and those of your progeny, on whether those in the Barnett/Natelson/Farris/ Levin camp (1) know what they are talking about, and (2) are telling the truth?

Why? Because you like them?  Because they provide a scapegoat which permits you to blame-shift?  And you think you can “get even”?

Wise voices in this Country are warning you about the scam.  Foremost among them is Phyllis Schlafly, who has been warning of this danger for decades. Yet, such is the ignorant conceit of the greenhorns that they sneer at those who are warning them.

I trust you now see the connection between the moral corruption of a People and tyranny.

Endnotes:

¹ Use your own head!  Do not be manipulated by other peoples’ choice of words. Rob Natelson formerly referred to what he wants as a “constitutional convention”.  Now, he calls it a “Convention of the States” – that is the term his cohorts & minions now use.  Why did they change what they called it?

² But our elections are no longer honest. The States took federal grant money to buy voting machines which can be rigged.

³ Randy Barnett’s “Bill of Federalism” is ten proposed amendments which would transform our Constitution from one of enumerated powers to one of general & unlimited powers.  Mark Levin’s proposed amendments are similar to Barnett’s.

⁴ The GDP is computed by an agency in the Executive Branch. So under the BBA, spending would be limited by numbers under the control of the federal government:  By how much they tax you; or by a number (GDP) the Executive Branch computes. You think that is a fine idea?

⁵ The Federalist Papers tell us what the “necessary & proper” clause (Art. I, §8, last clause) means:  The clause delegates to Congress power to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4^th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4^th  para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2^nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4^th para).  See also Federalist No. 44, 10^th -17^th paras.  In other words, the clause permits the execution of powers already declared and granted.

Do not be misled by Rob Natelson’s post on the “necessary & proper” clause!  Why did Natelson ignore what The Federalist Papers say about this clause?  Why did he fabricate the song & dance set forth in his post?

⁶ Think this through also: Even if Congress, as a matter of grace, permitted the States to appoint delegates, how would delegates from your State be chosen? Who controls your State? Would the powers in your State choose you?  Or do you believe Michael Farris would choose the leaders?

⁷ This happened in your State because The People in your State elected to State government people who sold you out.  See this website on federal grants:  http://www.ffis.org/database   You think your State Legislators, who have been gobbling up all the federal grant money they can get, will fix our Country at a “convention” to propose amendments? PH.

Model Nullification Resolutions for State Legislatures.

The Proposed Tennessee Resolutions of 2012

PLEASE NOTE:  I have revised these model resolutions.  The revised version is better organized and reads better.   You can find the revised resolutions by clicking on the following hyperlink:

Now, How Do We Get Rid Of Obamacare?  Nullify It!

Do use the revised model for your study, instead of the one below.

The revised version – which you can find at the link – sets forth in a nutshell all one needs for a basic understanding of our Constitution – and how the supreme Court destroyed it.

As always, feel free to post your questions.  PH

Proposed by Publius Huldah.

1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only.  That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.

That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

That to these Principles, each State agreed as a State, and as the Parties to the Constitution.

That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers.  That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.

2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.

3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system:  Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery.  That the 10^th  Amendment to the Constitution also declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.

4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever.  That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force,  as in violation of Art. I, Sec. 1, of the federal Constitution.

5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.

6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State.  That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.

7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:

a) The “taxing” and “general welfare” clauses:  Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).

The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases.  This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 7^th para).

b) The “interstate commerce” clause: “Commerce” is the buying and selling of goods – only that and nothing more. Webster’s American Dictionary (1828) says “commerce” is:

“an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals… by barter, or by purchase and sale; trade; traffick… inland commerce…is the trade in the exchange of commodities between citizens of the same nation or state.”

Federalist No. 22 (4^th para), Federalist No. 42 (9^th  &10^th  paras), Federalist No. 44 (at 2.), and Federalist No. 56  (5^th & 6^th paras), explain the two purposes of the “interstate commerce” clause: (1) to prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and (2) to permit the federal government to impose duties on imports and exports, both inland and abroad.

Article I, Sec. 8, cl.1; Art. I, Sec. 9, cls. 5 & 6; and Art. I, Sec.10, cls. 2 & 3, of the federal Constitution give express effect to these two purposes of the “interstate commerce” clause.

c) The “necessary and proper” clause:  This clause merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4^th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3^rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2^nd para); and thus the clause is “perfectly harmless”, a  “tautology or redundancy” (No. 33, 3^rd para).  Madison writes to the same effect in (Federalist No. 44, at 1.).

The clause merely permits the execution of powers already delegated and enumerated in the federal Constitution.  No additional substantive powers are granted by this clause.

That contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”  (Federalist No. 45 , 9^th para)

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects….” (Federalist No. 39, 3^rd para from end)

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects...” (Federalist No. 14, 8^th para)

“…It merits particular attention … that the laws of the Confederacy [those made by Congress], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land…Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…”[caps are Hamilton’s] (Federalist No. 27, last para).

That The Federalist Papers – and not the U.S. supreme Court – is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) – usurp powers, they must be impeached and removed from office (Federalist No. 81, 8^th para).

8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.

Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.

That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.

But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.

Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State.  That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.

The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it.  Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5^th para).  As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them.

9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.

Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.

That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents;  and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges”.

That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred.  Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.

To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.

That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.

10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President.  Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and  have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 2^nd para, and No. 77, last para).  That the supreme Court long ago took the side of those who seek to exercise unlimited control over the States and THE PEOPLE; and that Congress has failed in their duty to impeach and remove federal judges who usurp powers (Federalist No. 81, 8^th para).

That pursuant to Art. VI, cl. 3 of our federal Constitution, all State legislators, State Officers and State Judges take a solemn Oath to support our federal Constitution. Therefore, they are bound to protect THE PEOPLE of their States from the usurpations of the federal government whose clear object is the establishment of an absolute Tyranny over the States and the People.

That our Framers anticipated the dangers we now face and provided wise counsel for such a time as this.  Federalist No. 28 (last 5 paras) states that when “the representatives of the people betray their constituents”, the people have no recourse but to exert “that original right of self-defense” [The Declaration of Independence, 2^nd para], against “the usurpations of the national rulers” (5^th para from end).

That in a Federation of States united under a federal government for only limited purposes,

“…the people… are…the masters of their own fate. Power being almost always the rival of power, the general [federal] government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress…” (4^th para from end)

Thus, THE STATE LEGISLATURES are the ultimate bulwark of The People and The Ultimate Human Protectors of our Constitutional Republic:

“It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.”  (3^rd para from end)

The last paragraph of Federalist No. 28 recognizes that when the federal government seeks

“… a despotism over the great body of the people … [the people] are in a situation, through the medium of their State governments, to take measures for their own defense…”

11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go.  Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?

That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated  government, will be the inevitable consequence.

That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.

THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.

Notes:

1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.

2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powersand disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14^th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.

3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; thatthe federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.

Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.

Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:

“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …”  (2^nd para)

In that one paragraph, we learn the five foundational principles of our Constitutional Republic:

• Our Rights are unalienableand come from God;
• The purpose of civil government is to protect our God-given Rights;
• Civil government gets its powers from THE PEOPLE;
• Civil government is legitimate only when it stays within the powers WE delegated to it; and
• When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.

The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look atthe opening words:

“WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.”

The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate. 

When the federal government loses its legitimacy – as it now has – it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.

4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.

But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 2^nd para & No. 77, last para).

But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States.   The proper battle cry in such events is, “Not in my state!”

Do you see? PH
Posted March 13, 2012

Postscript Added March 15, 2012:

The federal government is not God.  It is merely our “creature”. We The People created the federal government when We ordained and established Our Constitution. And when We enumerated the powers We delegated to each branch of the federal government, We told the federal government what We were giving it permission to do.

But we have now come to believe that the federal government may do whatever it wants; and we must obey it.  And because we have believed this for so long, a totalitarian fascist dictatorship is right now being imposed on us.

So what should we do?  Revolution and bloodshed? No!  There is a better way, and our Framers show us:  On behalf of The People of their States, The State Legislatures must now resort to that original right of self-defense which pre-exists & pre-dates The Constitution; and must nullify those acts of the federal government which are outside the scope of the powers We delegated to it in Our Constitution.

The Model Resolutions  set forth the Authorities on which they are based, so that State Legislators may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH

CONGRESS’ ENUMERATED POWERS

By Publius Huldah

1.  With the U.S. Constitution, We The People created the federal government.  It is our “creature”, and has no powers other than those We delegated to it in Our Constitution.

Webster’s American Dictionary of the English Language (1828), says re “constitution”:

“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.” [boldface mine]

If  you, dear Reader, will study this paper and read the Constitution, you will know more about it than most State & federal judges, most law professors & lawyers, those who spout off on TV & radio, just about anybody in Congress, and the self-educated who fixate on their own idiotic theories.  And you will certainly know more than anyone currently occupying any office in the executive branch of the federal government.

2. The federal government ¹ has three branches: Article I of the Constitution creates the Legislative Branch (Congress) & lists its powers; Article II creates the Executive Branch & lists its powers (President); and Article III creates the Judicial Branch (federal courts) & lists its powers.

In this paper, we will consider only the enumerated powers of Congress. But the powers of the other two branches are likewise strictly limited and enumerated.

3. Congress is NOT authorized to pass any law on any subject just because a majority in Congress think the law is a good idea!  Instead, the areas in which Congress is authorized to act are strictly limited and defined (“enumerated”).

WE delegated to Congress the following Enumerated Powers over the Country at Large:

Article I, § 8, clauses 1-16 delegate to Congress the powers:

(1) To lay certain taxes;

(2) To pay the debts of the United States;

(3) To declare war and make rules of warfare, to raise and support armies and a navy and to make rules governing the military forces; to call forth the militia for certain purposes, and to make rules governing the militia;

(4) To regulate commerce with foreign Nations, and among the States, and with the Indian Tribes;

(5) To establish uniform Rules of Naturalization;

(6) To establish uniform Laws on Bankruptcies;

(7) To coin money and regulate the value thereof;

(8) To fix the standard of Weights and Measures;

(9) To provide for the punishment of counterfeiting;

(10) To establish post offices and post roads;

(11) To issue patents and copyrights;

(12) To create courts inferior to the supreme court; and

(13) To define and punish piracies and felonies committed on the high seas, and offenses against the Laws of Nations.

Other provisions of Our Constitution delegate to Congress powers over the Country at Large to make laws regarding:

(14) An enumeration of the population for purposes of apportionment of Representatives and direct taxes (Art. I, § 2, cl. 3);

(15) Elections of Senators & Representatives (Art. I, §4, cl. 1) and their pay (Art. I, § 6);

(16) After 1808, to prohibit importation of slaves (Art. I, § 9, cl. 1); ²

(17) After 1808, to restrict migration (immigration) to these United States (Art. I, §9, cl. 1);

(18) A restricted power to suspend Writs of Habeas Corpus (Art. I, §9, cl. 2);

(19) To revise and control imposts or duties on imports or exports which may be laid by States (Art. I, § 10, cl. 2 &3)

(20) A restricted power to declare the punishment of Treason (Art. III, §3, cl. 2);

(21) Implementation of the Full Faith and Credit clause (Art. IV, §1); and,

(22) Procedures for amendments to The Constitution (Art. V).

The 13th, 14th, 15th, 16th, 19th, 23rd,  24th, & 26th Amendments delegated additional powers to Congress over the Country at Large respecting certain civil rights & certain voting rights, the public debt [lawfully incurred], income tax, successions to vacated offices, dates of assembly, and appointment of representatives from the D.C.

So!  In a nutshell, the powers WE delegated to Congress over the Country at Large fall into four categories:

♠ International relations, commerce and war;

♠ Control immigration by restricting who may come to these United States, and establish a uniform rule of naturalization of new citizens;

♠ Domestically, to establish a uniform commercial system: weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy law, a [limited] power over interstate commerce, and mail delivery.

♠And in some of the Amendments, to protect certain civil and certain voting rights.

That’s it!  All other powers are retained by the States or the People.

Federal Enclaves & Territories:

4. Two provisions of Our Constitution grant to Congress broad legislative powers over these two categories of specifically defined geographical areas:

a)  Federal Enclaves: Article I, §8, next to last clause, grants to Congress “exclusive Legislation” over the following geographically tiny areas:  the seat of the government of the United States (not to exceed 10 square miles), forts, arsenals, dock-yards, and the like. As James Madison said in Federalist No. 43 at 2., it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, magazines, etc. established by the federal government.

b)  Territories: Article IV, §3, cl. 2 grants to Congress power to dispose of and make all needful Rules and Regulations respecting the Territory or other property belonging to the United States (as opposed to property belonging to individual states).  As these territories became States, Congress’ powers under this Article were terminated.

Congress may not lawfully exercise ANY other powers!

5. Thus, Congress has NO LAWFUL AUTHORITY to bail out financial institutions, businesses, and homeowners who don’t pay their mortgages; NO LAWFUL AUTHORITY to take control of our health care; NO LAWFUL AUTHORITY to pass laws denying secret ballots to employees who are solicited for membership by labor unions; NO LAWFUL AUTHORITY to take away your IRA’s and other retirement accounts, NO LAWFUL AUTHORITY to take your guns, NO LAWFUL AUTHORITY to pass laws respecting energy consumption or “emissions”, education, housing, etc., etc., etc.

Therefore, all laws which Congress has made on such topics are unconstitutional as outside the scope of the legislative powers WE delegated to Congress in OUR Constitution. WE THE PEOPLE did not give such powers to Congress when we ordained and established the Constitution, created the Congress, and listed its 22 enumerated powers over the Country at large. And WE did not delegate those powers to Congress in any of the Amendments.

6. You ask, “How can Congress make all these laws if they are unconstitutional?

Congress gets away with it because WE are ignorant of what our Constitution says; and We have been indoctrinated into believing that Congress can do whatever they want!

Consider Prohibition:  Up to 1919, everyone still understood that The Constitution did not give Congress authority to simply “pass a law” banning alcoholic beverages!  So the Constitution was amended to prohibit alcoholic beverages, and to authorize Congress to make laws to enforce the prohibition (18th Amdt.).

But after the Progressives took over the federal government during the early 1900s, the federal government was transformed from one of limited & enumerated powers only to the Frankensteinian monster it is today. The Progressives are the ones who imposed the regulatory welfare state where the federal government regulates business and commerce, natural resources, human resources, and benefits some people [e.g., welfare parasites, labor unions & obama donors] at the expense of others.

The Progressives claimed the power to determine what is in the “public interest” and have the federal government implement their notions of what advances the “public interest”.

Under the Progressives, the federal government was no longer limited by the enumerated powers delegated in the Constitution; but would follow the “will of the people” as expressed by their representatives in the federal government.  In other words, the Progressives gave the federal government a blank check to fill out anyway they want.

During the regime of Franklin D. Roosevelt (FDR), all three branches of the federal government abandoned the Constitution: FDR proposed “New Deal” programs; Congress passed them. At first, the Supreme Court ruled (generally 5 to 4) that these programs were unconstitutional as outside the legislative powers delegated to Congress. But when FDR threatened to “pack the court” by adding judges who would do his bidding, one judge flipped to the liberal/progressive side, and the Court started approving FDR’s programs (5 to 4).

7. Since then, law schools don’t teach the Constitution. Instead, they teach decisions of the FDR-dominated supreme Court which purport to explain why Congress has the power to regulate anything it pleases. The law schools thus produced generations of constitutionally illiterate lawyers and judges who have been wrongly taught that three clauses, the “general welfare” clause, the “interstate commerce” clause and the “necessary & proper” clause, permit Congress to do whatever it wants!

8. “Well”, you ask, “what about ‘the general welfare clause’?  Doesn’t that give Congress power to pass any law on any subject as long as it is for the ‘general Welfare of the United States’ “?  NO, IT DOES NOT!

First, you must learn what “welfare” meant when the Constitution was ratified:  “Welfare” as used in the Preamble & in Art. 1, §8, cl. 1, U.S. Constitution, meant

“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government” (Webster’s, 1828).

But The American Heritage Dictionary of the English Language (1969), added a new meaning: “Public relief – on welfare.  Dependent on public relief”.  Do you see how our Constitution is perverted when new meanings are substituted for original meanings?

Second, James Madison addresses this precise issue in Federalist No. 41 (last 4 paras):  Madison points out that the first paragraph of Art. I, §8 employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms.   So, yes!  The powers of Congress really are restricted to those listed herein above.

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

9. “OK”, you say, “but what about ‘the commerce clause’ (Art. I, §8, cl. 3)?  Doesn’t that give Congress power to pass laws on any subject which ‘affects’ ‘interstate commerce’ “?  NO, IT DOES NOT! In Federalist No. 22 (4th para) and Federalist No. 42 (11th &12th paras), Alexander Hamilton & James Madison explain the purpose of the “interstate commerce” clause:  It is to prohibit the States from imposing tolls and tariffs on articles of import and export – merchandize – as they are transported through the States for purposes of buying and selling. That’s what it does, Folks; and until the mid-1930’s and FDR’s “New Deal”, this was widely understood. ³

10. “Well, then”, you say, “doesn’t the ‘necessary & proper’ clause’  [“elastic clause”  or “sweeping clause” ] (Art. I, §8, last clause) allow Congress to make any laws which the people in Congress think are ‘necessary & proper’?” NO, IT DOES NOT!  Alexander Hamilton says the clause merely gives to Congress a power to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para).  James Madison agrees with Hamilton’s explanation. (Federalist No. 44, 10th-17th paras). In other words, the clause simply permits the execution of powers already declared and granted. Hamilton & Madison are clear that no additional substantive powers are granted by this clause.

11. The 10th Amendment states:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

So!  If a power is not delegated by Our Constitution to the federal government; and if the States are not prohibited (as by Art. I, § 10) from exercising that power; then that power is retained by the States or by The People.  And WE are “The People”!

12. Our Framers insisted repeatedly that Congress is restricted to its enumerated powers.  James Madison says in Federalist No. 45 (9^th para):

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people…” [emphasis mine]

In Federalist No. 39 (14th para):

“…the proposed government cannot be deemed a national one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignity over all other objects.”

and in Federalist No. 14 (8th para):

“…the general [federal] government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects…”  [emphasis mine]

13. In all its recent legislation, Congress ratchets up its concerted pattern of lawless usurpations.  The executive branch and the federal courts approve it.  Such is the essence of tyranny.  They are “ruling” without our consent, and hence the federal government is now illegitimate. PH

Endnotes:

¹ “Federal” refers to the form of government:  An alliance of States associated in a “federation” with a national government to which is delegated supremacy over the States in specifically defined areas ONLY.

² Some object that our Constitution endorsed slavery. During the 18th century, slavery was universal. But Article I, § 9, clause 1, is our Proclamation to the World that WE would abolish the slave trade!  James Madison wanted the “barbarism” & “unnatural traffic” of the slave trade abolished immediately (Federalist Paper No. 42, 6^th para).

³ See Justice Clarence Thomas’ concurring opinion in United States v. Lopez (1995).  Justice Thomas’ opinion shows why those disposed to usurp attack him so virulently.

Revised July 1, 2009; Sep 8, 2009; Oct. 17, 2010; Jan 3, 2013; Feb. 4, 2013

What Criminal Laws are Congress Authorized To Make?

By Publius Huldah

1. The Constitution grants to Congress only limited powers to make criminal laws. These powers fall into five categories: a) those made pursuant to express authorizations for four specific crimes; b) those made under the “necessary and proper” clause; c) those made for the few tiny geographical areas over which Congress has “exclusive Legislation”; d) those governing the military; and e) those made pursuant to two of the Amendments to the Constitution.  Let’s look at each category:

a) Art. I, § 8 grants to Congress authority to define & punish counterfeiting, piracies and felonies committed on the high seas, & offenses against “the Laws of Nations”. [1] Article III, §3 grants to Congress a restricted power to declare the punishment of Treason.

b) Art. I, §8, last clause, grants to Congress the power “to make all Laws which shall be necessary and proper for carrying into Execution …all …Powers vested by this Constitution in the Government of the United States…”.  This necessary and proper clause allows Congress to make criminal laws when necessary to enforce powers vested by the Constitution in the federal government.   This worried people, so Madison & Hamilton explained it:

In Federalist No. 44, Madison said, regarding the peoples’ fears of usurpations by Congress:

what is to be the consequence, in case the Congress shall misconstrue this part of the Constitution and exercise powers not warranted by its true meaning, I answer the same as if they should misconstrue or enlarge any other power vested in them…the success of the usurpation will depend on the executive and judiciary departments, [2] which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers (17^th Para).

In Federalist No. 33, Hamilton cited Art. VI, cl.2, as showing that laws which are not pursuant to the Constitution are merely acts of usurpation and deserve to be treated as such (7^th Para).  He also said:

If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. (6^th Para)

So! Congress has authority under the necessary and proper clause to make criminal laws enforcing the “Taxes, Duties, Imposts and Excises” authorized by Art. I, §8, cl.1; to make criminal laws prohibiting the filing of false statements or claims in Bankruptcy Court (Art. I, §8, cl. 4); and to make criminal laws forbidding the importation of slaves after 1808 (Art. I, §9, cl. 1).  Article II, §4 mentions impeachment of civil officers for, among other things, “bribery”; so by implication, Congress is authorized to pass a criminal statute prohibiting the accepting of bribes by civil officers of the United States.  The main duty of the federal judiciary created by Art. III is to conduct trials [in the limited category of cases which they are permitted to hear], and that means parties & witnesses. Parties & witnesses must be required to tell the Truth.  So, it would be necessary and proper for Congress to make laws declaring perjury and lying under oath in federal court criminal offenses.

These examples are not exclusive – there are doubtless additional criminal laws which would be appropriate exercises of the necessary and proper clause.  But it is important to note that private citizens would rarely, if ever, be in situations where these criminal laws would apply to them!

c) Article I, §8, next to last clause, authorizes Congress to exercise “exclusive legislation in all Cases whatsoever” over small defined geographical areas: the seat of the government of the United States [not to exceed ten squares miles], forts, dock-yards, magazines, arsenals, and the like.  As Madison said in The Federalist No. 43 (4^th –6^th Paras), it is necessary for the government of the United States to have “complete authority” at the seat of government, and over forts, dock-yards, etc.  This means that over these limited geographical areas, Congress has authority to make the full range of laws criminalizing murder, robbery, extortion, arson, rape, kidnapping, etc.  It is important to note that private citizens would not be affected by these laws unless they are inside the District of Columbia, military bases, dock-yards, and the like. [3]

d) Article I, §8, cl. 14 authorizes Congress “To make Rules for the Government and Regulation of the land and naval Forces.”  Under this grant of authority, Congress has properly enacted The Uniform Code of Military Justice, the criminal code which governs members of our military forces. This covers all the “standard” criminal offenses plus additional crimes uniquely appropriate to those in the military: failure to obey a lawful order, dereliction of duty, absent without leave, desertion, conduct unbecoming an officer, etc.  Again, it is important to note that civilians are not affected by the criminal code which governs our military forces.

e) Some of the Amendments to the Constitution authorize Congress to enact laws to enforce them: The 13^th Amendment would authorize Congress to make laws criminally punishing those who keep slaves.  The 16^thAmendment presumably authorizes Congress to make criminal laws to enforce the “income” tax.  The 18^th Amendment (now repealed) authorized Congress & the States to make laws criminally punishing those who manufactured or trafficked in intoxicating liquors. The 14^th, 15^th, 19^th, 24^th, & 26^th Amendments restrict only States &/or the federal government. The other Amendments (after the original Ten) address “housekeeping” issues.  So, Congress’ criminal jurisdiction over private citizens under all Amendments is limited to those who keep slaves or don’t pay “income” taxes (whatever “income” meant when the Amendment was adopted).  Estate and gift taxes are not authorized by the Constitution.

2. So! Much of the federal criminal code of today consists of “laws” which are mere usurpations and deserve to be treated as such.  They are not “laws”, because they are outside the legislative powers granted to Congress by the Constitution.  Excepting members of the military, and outside the tiny geographical areas (the District of Columbia, military bases, dock-yards, etc., and any Territories) where Congress has “exclusive legislation”; Congress has no general authority to pass criminal laws.  Thus, laws which purport to be of general application throughout the several States criminalizing acts respecting firearms, ammunition, hate crimes, environmental crimes, economic crimes, banking crimes, computer crimes, murder, kidnapping, narcotics, arson, extortion, etc. etc., etc., etc., etc., are all unconstitutional usurpations.

Lest you think this is astonishing, remember that before the 18^th Amendment was ratified in 1919, everybody knew that Congress didn’t have the power to make laws criminalizing the manufacture or distribution of intoxicating beverages!   Congress needed an Amendment to the Constitution to authorize them to make the laws giving effect to prohibition!   But today, Congress is lawless & filled with usurpers; and the federal prisons are filled with inmates convicted under unconstitutional laws.

Do we have a remedy for these usurpations by Congress?  YES! As Madison, quoted above, said,

the success of the usurpation will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts.

Thus, when Congress makes a criminal law for which it lacks constitutional authority, the Executive Branch (in the person of the U.S. Attorney) has the power & duty to refuse to prosecute the violation.  If that check fails, the Judicial Branch has the power to declare the statute unconstitutional. [4] If the U.S. attorneys and federal judges both fail in their obligations to enforce the  Constitution, Madison said, as quoted above,

…in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…

Hamilton said, as quoted above,

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

Did you get that? Hamilton said that when our ”creature”, i.e., the federal government, usurps power, WE are to judge the conduct by the standard of the Constitution, and WE are to take appropriate action to “redress the injury done to the Constitution”!  This includes demands for impeachment, recall petitions, defeating faithless representatives in the next election, nullification by states, jury nullification, non-violent civil disobedience, ignoring unconstitutional “laws” because an unconstitutional  “law” is  a “mere usurpation and deserves to be treated as such” ; and the like.

Alexander Hamilton considered the people to be “the natural guardians of the Constitution”; and contemplated “a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (The Federalist, No. 16, 10^th Para). [5] One expects Hamilton would be disappointed in “the People” of today. [6] It is OUR responsibility to learn the Constitution, to educate the people in our spheres of influence, and to take this country back from the faithless usurpers who have betrayed us.

3. Did the Framers of the Constitution advocate anarchy?  No way!  The legislatures of the States have whatever authority granted to them by their State Constitutions to enact criminal codes applicable to those within the borders of their States.  Madison said it all in Federalist No. 45 (9^th Para):

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and internal order, improvement, and prosperity of the State.

It is up to the States to enact the criminal codes which apply to the people within their borders.

Publius/Huldah  July 4,  2009

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[1]Webster’s American Dictionary (1828) defines “laws of nations” as, “the rules that regulate the mutual intercourse of nations or states.  These rules depend on natural law, or the principles of justice which spring from the social state; or they are founded on customs, compacts, treaties, leagues and agreements between independent communities.”

Here is one example of a “law of nations” based on custom: From antiquity to modern times, envoys between warring armies have been entitled to safe conduct while on their missions.  In the [excellent!] movie, “300”, it was a shocking thing when the Spartan King, Leonidas, killed the envoys of the Persian King Xerxes.  Our concept of “diplomatic immunity” is thus an ancient one.

[2] Madison here illustrates checks which the Executive & Judicial Branches have over Congress. We all know that Courts may declare an act of Congress unconstitutional; but most don’t know that the President should refuse to enforce an Act of Congress which the President, in the exercise of his thoughtful & independent judgment, deems unconstitutional.  The President’s Oath is to “…preserve, protect and defend the Constitution…” (Art II, § 1, last cl.).  It is not to “go along with” Congress – it is not to “obey” the Courts. The President must make his own independent determinations.  He may not properly abdicate this duty in favor of another Branch! The Executive Branch is to function as a check on the other two!  The check on the President is impeachment & removal from office.

[3] Article IV, §3, cl. 2 also granted to Congress authority to dispose of and make all needful Rules and Regulations respecting the Territories belonging to the United States [such as the Western Territories before they became States – Federalist No. 43, 11^th Para].  This gave Congress authority to make the full range of criminal laws to govern those Territories until such time as they became States.  When they became States, jurisdiction to enact criminal laws would be transferred TO the new State.

[4] It is the responsibility of defense counsel to raise the issue of the unconstitutionality of the statute under which defendant is charged.  But lawyers, like everybody else in our modern culture, have been indoctrinated into statism; and like everybody else, are often unaware that Congress must be authorized by the Constitution to enact a criminal law before the law is valid.  The judge has an independent responsibility to raise the unconstitutionality of the statute; but like defense counsel and everybody else, they often don’t know that Congress must have constitutional authority for their Acts.

[5] Hamilton also knew that “an illegal usurpation of authority”, to be successful, “would require not merely a factious majority in the legislature, but the concurrence of the courts of justice and of the body of the people.” Federalist No. 16, 10^th Para.  [emphasis added].   Thus, the people, as the natural guardians of the Constitution, have a duty to protest when the authorities act lawlessly!  If they don’t, they will suffer the consequences, as in Europe during the last century &, as we may soon see, in our own once blessed country.

Warning! The following contains explicit religious content which may be highly offensive to some:  This obligation to protest lawlessness reflects the covenantal nature of civil government as established in the Bible (See David’s covenant at 1 Chron 11:1-3 & 2 Sam 5:1-4; Joash’s (via the priest Jehoiada) covenant at 2 Kings 11:17 & 2 Chron 23:16; and Josiah’s covenant at 2 Kings 23:1-3). Out of this covenantal relationship arises the peoples’ obligation to protest lawlessness.  If they don’t protest, God punishes the people because of the misdeeds of their “kings”.  See, e.g., 2 Sam 21, which tells of God’s sending a 3 year famine because Saul put the Gibeonites to death; 1 Chron 21 & 2 Sam 24, which tell of the pestilence which killed 70,000 Israelites because David took the census; 1 Kings 16:29-33, 17:1, 18:1, 18:17-19 which tell of the reign of Ahab & Jezebel and the famine God (via Elijah) sent because Ahab & his house had forsaken the commandments of the Lord; 2 Chron 21:1-14, which tell of King Joram and the heavy blow God struck at Joram’s people because of Joram’s wickedness; and 2 Kings 21:10-17 & Jer 15:3-4 which tell of the four dooms God visited upon Jerusalem & the S. Kingdom because of the sins of Manasseh.  If the Germans had protested Hitler in a timely fashion, millions of lives would have been spared.  Will we make the same mistake?

[6] Hamilton contemplated “…the most vigilant and careful attention of the people…” (Federalist No. 23, next to last Para).  In speaking of power disputes between the federal and state governments, Hamilton said that if the rights of the people “…are invaded by either, they can make use of the other as the instrument of redress.” (Federalist No. 28 7^th Para).

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

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

June 29, 2009; revised April 16, 2011