Publius-Huldah's Blog

Understanding the Constitution

What can we do to get a reasonably honest election?

By Publius Huldah

A disaster of monumental proportions is likely to be ahead for our Country if we don’t take emergency action to get at least a reasonably honest election. Not only the President’s seat, but also the entire US House, the Houses in the State Legislatures, one/third of the seats in the US Senate, and a proportional number of seats in the State Senates, are all at stake in the upcoming election.

We are faced with irrefutable proof that the Marxists intend to steal the election. And they will not content themselves with stealing only the President’s seat – they seek to steal every seat on the ballots.

So we need to face up to the problem and take immediate action.

1. What does Congress have constitutional authority to do?

The President and Vice President are supposed to be elected using the procedures set forth in Article II, §1, cl. 2 and the 12th Amendment to our US Constitution. But we have ignored those provisions for a great many years; and it’s too late to obey them for the upcoming election of President and Vice President.

But Congress still has constitutional authority to invoke Article II, §1, cl. 4, which invests in Congress the power to determine the time of chusing the Presidential Electors and the Day on which they vote. That date is currently set for November 3, 2020.

Pursuant to Article I, §4, cl. 1, Congress may make laws determining the “Times, Places and Manner” of holding the federal elections to Congress.

Since we know that Trump ballots have been tossed into dumpsters, and election offices have been flooded with fake Biden ballots; the best course of action would be for Congress to make a law which reschedules the November 3 election to a later date; and cancels everything which has been done so far respecting the election (at least since the primaries).

Congress could then exercise its constitutional authority to establish common sense procedures respecting the “Time, Place and Manner” of voting in the upcoming elections. For example, Congress could pass a law providing that:

· Every registered voter who wants to vote must physically appear at his officially designated place of voting and produce proof of identity.

· Election Day should be one day – not weeks and months before & after the date set for the election.

· Absentee voting should be restricted to those who are out of the Country or out of State due to military service, service in the diplomatic corps, missionaries stationed overseas, businessmen stationed overseas, etc.

We used to do it this way.

But the Marxists came in with their hard luck stories about how these requirements were harsh, unfair, discriminatory, and so forth; and so our side [as usual] caved in and went along with the demands which stripped us of the ability to have even reasonably honest elections.

However, because Marxists now control the House, Congress lacks the ability to act as suggested above.

2. What does the US Supreme Court have constitutional authority to do?

Article I, §4, cl. 1 provides that the power to set the “Times, Places and Manner” of voting in federal elections is delegated exclusively to the Legislative Branches of the State & Federal governments [LINK]. Accordingly, and consistent with the Principle of “Separation of Powers” and the “political question” doctrine [LINK], the Judicial Branches of State and federal government have no lawful authority to substitute their views on these issues for those of the Legislative Branches.

Even so, with respect to the upcoming elections, lawless federal and state judges have been usurping power by substituting their views respecting the “Times, Places and Manner” of voting, for the views of State Legislatures. Some judges are ruling that because of COVID-19, voters shouldn’t be required to go to the polls – everyone must be allowed to vote by mail; and the time for counting ballots must be extended.

Obviously, the Supreme Court has no constitutional authority to substitute their views respecting the “Times, Places and Manner” of voting for those of the legislative bodies. Instead, the Supreme Court’s Duty is to issue orders and judgments which adhere to what the Constitution says.

So the Supreme Court should overturn the usurpatious orders of state and federal judges who attempted to usurp power over this issue. They should remind The People of our Country that only the State Legislatures and Congress may address these issues – that judges must keep their hands off. The power isn’t given to the Judicial Branches.

But a recent case out of South Carolina indicates that the most we will get from the Supreme Court is an unprincipled “cut the baby in half” compromise.

South Carolina law provides that a witness must sign an absentee ballot for the ballot to be valid. The Marxists (or their dupes) objected to this requirement and sued. Using COVID-19 as the excuse, the federal judge disagreed [!] with the statutory requirement for a witness, and said the State couldn’t enforce it. South Carolina election officials applied to the US Supreme Court for a stay of the lower Court’s order. 1

On October 5, 2020, in Andino v. Middleton [LINK], the Supreme Court stayed the Order, except to the extent that any ballots cast before they granted the Stay and received within two days of their Order may not be rejected.

So the Supreme Court’s Order is nothing for us to celebrate. The Supreme Court is allowing several days’ worth of unlawful ballots to be treated as valid; and thus are rewarding the trial judge’s usurpation of powers [which were granted to the South Carolina Legislature], by allowing these unlawful ballots to be counted.

But our good Justices, Thomas and Alito, and Gorsuch as well, would have granted the Stay in full and disqualified all the unlawful absentee ballots.

Justice Kavanaugh’s concurring opinion suggests that, like the majority, he doesn’t understand that the Judicial Branch has no constitutional authority to alter State election laws re the “Times, Places and Manner” of holding elections:  he pointed out that the actions of the lower Court violated Supreme Court precedent [!] that (1) an unelected federal judge ordinarily shouldn’t make public health decisions which overrule State Legislatures, and (2) federal courts ordinarily shouldn’t alter state election rules in the period close to an election. Yikes!

So while the Supreme Court might “give” us some relief from the massive cheating, it seems unlikely that they will provide a principled defense of our Constitution.

3. What must State Governments do?

State governments may be the only way salvage, at least to some extent, the upcoming election. Since the Judicial Branches of the State and federal governments have no constitutional authority to change the decisions of the Legislative Branches respecting the “Times, Places and Manner” of federal elections; State Governments should instruct the Election Officials for their State that they must obey & enforce the election laws passed by their State legislature and not the usurpatious orders of judges. Judges have no constitutional authority to change what the State Legislatures do on this issue!

Election officials should also be shown that judges have no power to enforce their orders & judgments – that they depend on the Executive Branches of the federal or State governments to enforce them. We are doomed if Americans remain unable to grasp this simple concept.

Endnote:

1 The better course of action would have been for South Carolina to nullify the lawless opinion of the federal judge by refusing to enforce it. Remember! Federal judges have no army – they can’t enforce their Orders. They must depend on the Executive Branch of the federal gov’t to enforce them. Who thinks President Trump would send in the National Guard to force South Carolina election officials to allow cheating in the upcoming election? If those officials had been familiar with what Alexander Hamilton wrote in Federalist No. 78 (6th para), they would have known this.

 

 

 

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October 15, 2020 Posted by | 12th Amendment, Andino v. Middleton, Article I Sec. 4, Article II Sec. 1, Elections Clause, federal judges, Mail-in voting, Nullification, political questions | , , , , , , , , | 33 Comments

Mail-in voting? A “political question” which only State Legislatures and Congress may decide

By Publius Huldah

It has become obvious that one of the purposes of the COVID-19 scam is to bring about unrestricted mail-in voting in the toss-up and Red States so that the upcoming presidential election can be stolen by the Left for the senile Joe Biden and his constitutionally ineligible running mate, Kamala Harris.

On September 9, 2020, the Left achieved their goal for the Red State of Tennessee – unless the Tennessee State government enforces the US Constitution and rejects the federal judge’s unconstitutional order.

1. The absurd Order from the US District Court, Middle District of Tennessee

The Tennessee Code permits mail-in voting for certain categories of people [Tenn. Code § 2-6-201]; but requires those who register by mail to appear in person at the official place of voting and bring proof of identity when they vote for the first time [Tenn. Code § 2-2-115 (b) (7)].

Our elections are already tainted by the “ghost voters” described in Deroy Murdock’s article (published 2017) [here]. Murdock showed that throughout the United States, over 3.5 million persons who didn’t exist were registered to vote. But that number wasn’t sufficient to elect Hillary Clinton; so the Left needs more ghost voters. With mail-in voter registration, dead people can be registered to vote; and with unrestricted mail-in voting, those dead people can vote forever.

The Plaintiffs in this action claim to be distressed about the statutory requirement that first-time voters (who registered by mail) appear in person to vote because it forces them to choose between their “health” [they might catch COVID-19 if they go to the polls] and their right to vote. 1

On September 9, 2020, federal judge Eli Richardson issued a preliminary injunction which has the effect of setting aside, for the upcoming presidential election, the statutory requirement – established by the Tennessee Legislature – that persons who registered by mail, show up in person the first time they vote.

Here is Richardson’s 29 page Order.

So let’s cut 29 pages of bunk down to its essence: Richardson ruled that the Tennessee Legislature’s requirement that the first-time voters (who registered by mail) physically appear at the polls, imposes a “moderate burden” on voting rights; and the State failed to show the Court that Tennessee has a “legitimate state interest” to justify that burden. 2

Even worse: Throughout his Order, Richardson writes repeatedly [some 20 times] of Plaintiffs’ “First Amendment right to vote”; and says at the end of para 31 of his Order,

“…it is likely that Plaintiffs will prevail on their claim that the first-time voter requirement violates the First Amendment right to vote…”

But the First Amendment makes no mention of a “right to vote”. 3 Furthermore, in footnote 22 of his Order, the Judge says:

“In a prior order, the Court declined to address any suggestion that there is no First Amendment right to vote, for any purposes at all, by mail in particular… The Court was well aware that McDonald supports such a suggestion, but the Court simply did not need to opine on that matter. The Court likewise does not need to do so here…”

What? The Judge declined to address whether or not a First Amendment right to vote actually exists even though he has already determined that Plaintiffs are likely to prevail on their claim that the requirement that first-time voters (who registered by mail) show up in person to vote “violates the First Amendment right to vote”!

2. Why do Plaintiffs and the Judge repeatedly speak of a “First Amendment right to vote”, when the Judge isn’t prepared to say that such a right even exists?

They may be aware that the federal court has no jurisdiction over this case; but are attempting to fake it by claiming that the case “arises under the Constitution” via the First Amendment.4

The judicial power of the federal courts is limited to those few categories of cases enumerated at Article III, §2, clause 1, US Constitution. Not one of the categories invests the federal court with jurisdiction over this case. This case can’t be said to “arise under the Constitution” because there is no “right to vote” in the US Constitution; and the remaining categories listed in Article III, §2 are clearly inapplicable.

So it appears that Plaintiffs have fabricated a mythical “First Amendment right to vote” in order to provide a pretext for the federal court to exercise jurisdiction in this case – and that the federal judge let them get away with it.

3. Article I, §2, clause 1, US Constitution, negates the absurd claim that there exists a federal constitutional right to vote.

At Article I, §2, cl. 1, the States expressly retained their pre-existing power to determine the qualifications of voters:

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

Accordingly, those who are eligible to vote for Representatives to their State Legislature are the ones eligible to vote for Members of the federal House of Representatives. 5

With four later Amendments, the States agreed that they would not deny eligibility to vote to Citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay a tax (24th Amendment), and for those 18 years of age or older on account of age (26th Amendment). It is important to note that these four amendments do not grant the “right” to vote to the persons described in the Amendments – merely that the suffrage will not be denied to those persons on account of their race, sex, etc.

So the States retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

So there is no “right to vote” set forth in the US Constitution. To the contrary, voting is a privilege granted or denied on the basis of whether applicants meet the qualifications for voting set forth within their State Constitution. 6

4. What does our Constitution say about how the President and Vice President are to be elected?

Article II, §1, cl. 2 and the 12th Amendment set forth the procedures for electing President and Vice President. Those procedures are described here under the subheadings, “Electors appointed by States were to choose the President” and “The 12th Amendment establishes procedures for voting by Electors”.

Our current procedures bear no resemblance to the Constitutional requirements. 7 It’s too late to obey the Constitution for the upcoming presidential election; so let’s see what our Constitution says about the federal elections to Congress.

5. US Constitution: the “times, places and manner” clause

Pursuant to Article I, §4, clause 1, State Legislatures have the power to prescribe the Times, Places and Manner of holding Elections for US Representatives 8 and US Senators.9

This clause also provides that Congress may make laws which override such State laws.

So the power to determine the time, place and manner of holding such federal elections is delegated exclusively to the Legislative Branches of the State and federal governments.

It is up to the State Legislatures to decide which “burdens” are appropriate with respect to the place of voting – with Congress having power to override what a State Legislature decides. The Judicial Branches of the state and federal governments may not substitute their views as to which “burdens” are appropriate and which are not. These are “political questions” granted to the Legislative Branches to decide; and the Judicial Branches – state and federal – may not lawfully interfere. 10

It is clear that “manner of voting” includes such matters as a requirement of personal presence at the place of voting. This is what our Framers contemplated, as shown by their words quoted in footnote 8 below. When a State legislature decides that personal presence is required – that decision can be overturned only by Congress.

So Judge Richardson’s view that the Tennessee Legislature doesn’t have a good reason for requiring first time voters (who registered by mail) to vote in person and present ID is irrelevant, and his Order is ultra vires.

6. What is the State’s remedy against the unlawful Court order?

So! You have seen that determining the “place and manner of voting” is a political power delegated exclusively to the State and federal Legislatures. It is thus a “political question”; and the federal [and state] Judicial Branches may not substitute their views for those of the Legislative Branches.

And since there is no “right to vote” contained in the US Constitution, the Federal District Court has no jurisdiction over this case. This case doesn’t “arise under the Constitution” or fit within any of the other categories of cases enumerated at Article III, §2, cl.1, US Constitution.

So the pretended Order of September 9, 2020, is ultra vires and lawless, and the State of Tennessee has no obligation to obey it.

The duty of the elected and appointed State and local officials is to obey the US Constitution. When the dictates of a federal [or State] judge contradict the Constitution, State officials must side with the Constitution and against the judge. 11

And what will happen if the State of Tennessee refuses to comply with the Judge’s order? The Judge can’t enforce his Order. He has to depend on the Executive Branch of the federal government to enforce it. 12 Do you believe that President Trump will send in federal troops to force the State of Tennessee to comply with Judge Richardson’s ultra vires Order?

Note:  In addition to the Offices of President & Vice-President, many other offices will also be on the Ballot:  the entire US House of Representatives is up for grabs.  So is the House in the State Legislatures all over the Country.  1/3 of the US Senate will be on the ballot; and a proportional number of Senate Seats on State Legislatures throughout the Country will be on the ballot.

EVERY REPUBLICAN LEGISLATOR NEEDS TO UNDERSTAND:  Your Seat is likely to be stolen in this upcoming election.

So you better wake up and get your State Legislature to smack down the federal & state judges who are assisting the Left in stealing your Seat.  And if Congress doesn’t act, they will lose control of the Senate and most likely every seat in the House.

Why should the Left stop with stealing only the Presidential election when they can also steal YOUR seat?

Endnotes:

1 How do they get their groceries?

2 Order at paras 29 – 31.

3 The First Amendment says,

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is a limitation on Congress’ powers to make laws – it doesn’t grant a “right” to vote!

4 In Federalist No. 80 (2nd para), Hamilton states that cases “arising under the Constitution” concern

“…the execution of the provisions expressly contained in the articles of Union [the US Constitution]…” [boldface added].

In the 3rd & 13th paras, Hamilton illustrates what “arising under the Constitution” means: He points to the restrictions on the power of the States listed at Art. I, §10 and shows that if a State exercises any of those powers, and the fed. gov’t sues the State, the federal courts have authority to hear the case.

5 The 17th Amendment [ratified 1913] provides that those who are eligible to vote for Representatives to the US House are eligible to vote for US Senators.

6 With the National Voter Registration Act of 1993, Congress usurped the retained power of the States to set and enforce eligibility standards for voting. In a series of 3 papers, the last of which is here, I show how the assertions about The Federalist Papers made by the 9th US Circuit Court of Appeals and the Supreme Court, in their attempts to justify their unconstitutional judgments, are false.

7 Our disregard of these constitutional provisions doubtless contributed to the creation of the current chaos.

8 Our Framers told us what “times”, “places” and “manner” mean:

In Federalist No. 61 (4th & 5th paras), Alexander Hamilton shows that “Time” refers to when elections are held. He explains that under the Articles of Confederation [our 1st Constitution], States had been conducting elections from March to November; and that uniformity in the time of elections is necessary “for conveniently assembling the [federal] legislature at a stated period in each year”.

“Place”: Hamilton also points out that the suffrages of citizens living in certain parts of the States could be defeated by restricting the place of election for Representatives in the House to “an INCONVENIENT DISTANCE from the elector” (2nd para). [caps are Hamilton’s].

“Manner” of holding Elections refers to such things as paper ballots or show of hands, the place of voting, and whether the States will be divided into congressional districts for purposes of electing Representatives. James Madison discusses the “Manner” of holding Elections in The Records of the Federal Convention of 1787, vol. 2, August 9, 1787:

“Mr. Madison: … the Legislatures of the States ought not to have the uncontrouled right of regulating the times places & manner of holding elections. These were words of great latitude. It was impossible to foresee all the abuses that might be made of the discretionary power. Whether the electors should vote by ballot or vivâ voce, should assemble at this place or that place; should be divided into districts or all meet at one place, shd all vote for all the representatives; or all in a district vote for a number allotted to the district; these & many other points would depend on the Legislatures and might materially affect the appointments …. what danger could there be in giving a controuling power to the Natl. Legislature? Of whom was it to consist? 1. of a Senate to be chosen by the State Legislatures … 2. of Representatives elected by the same people who elect the State Legislatures…” [emphasis added]

Rufus King in the Massachusetts Convention said in The Records of the Federal Convention of 1787, vol. 3, January 21, 1788:

“Hon. Mr. King rose … It was to be observed, he said, that in the Constitution of Massachusetts, and other States, the manner and place of elections were provided for; the manner was by ballot, and the places towns; for, said he, we happened to settle originally in townships…” [emphasis added]

9 When Art. I, §4, cl. 1 was drafted, the State Legislatures were to choose the State’s Senators to the US Congress – so the “place” of choosing the US Senators would be wherever the Legislature met. With ratification of the 17th Amendment, Congress gained oversight over State laws addressing the “place” of election of US Senators.

10 In Marbury v. Madison [link], decided 1803, the Supreme Court explained the concept of “political powers” and that the manner in which political powers are exercised is beyond the reach of the courts:

“By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. …whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive … [and] can never be examinable by the Courts.”

Marbury addresses the political powers exercised by the President. That same deference to the exercise of political powers has long been extended to the acts of the other political branch, Congress. Where the Constitution grants a political power to Congress, the manner in which Congress exercises the discretion is also beyond the reach of the Courts. So, for example, if Congress were to exercise the power granted to it by Article I, § 4, clause 1, to make a law banning mail-in voting; its action can never be examined by the Courts – the Courts may not substitute their views for those of Congress.

11 Marbury v. Madison also stands for the Great Principle that when an Act of one branch of government violates the Constitution, the other Branches must obey the Constitution and not the unlawful Act.

12 Alexander Hamilton made this same point over 200 years ago – see Federalist No. 78 (6th para). If law schools had made The Federalist Papers required reading, our Country wouldn’t now be in such a mess.

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September 20, 2020 Posted by | 12th Amendment, 1st Amendment, Article I Sec. 4, COVID-19 scam, dead voters, Elections Clause, Eli Richardson, ghost voters, Joe Biden, Kamala Harris, mail-in voter registration, Mail-in voting, Nullification, political questions, Red States, Times Places and Manner clause, Toss-up states, US District Court Middle District of Tennessee, voter registration | , , , , , , , , , , , , , , , , , , , , | 32 Comments

Why the States must Nullify the National Voter Registration Act Now!

By Publius Huldah

From the earliest days of our Republic, 1 some years before our federal Constitution of 1787 was ratified; 2 the Citizens of the States determined the qualifications for voting, and memorialized these qualifications in their State Constitutions. In keeping with this hallowed practice, the Citizens of North Carolina recently amended Article VI of their State Constitution to add to the Qualifications for voting the requirement that persons voting in person present a photo ID [link].

But lawsuits have been filed in federal court objecting to the photo ID’s; and the judge on one of them, U.S. District Judge Loretta Biggs [Mid. Dist. North Carolina], has announced that she will issue a preliminary injunction against the requirement that voters present a photo ID. North Carolina election officials scurried to comply with Judge Biggs’ announcement; and Republican politicians called for an appeal [link].

The purpose of this paper is to show a better way to proceed – to show how North Carolina can enforce the US Constitution and the qualifications for voting set forth in its State Constitution.

We begin by looking at what our federal Constitution says about qualifications of voters.

1. Our federal Constitution enshrines the pre-existing practice where States set the qualifications for voters

In our federal Constitution of 1787, the States expressly retained their pre-existing power to determine the qualifications of voters: Article I, §2, cl. 1, US Constit., says,

“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” [italics added]

So! Under our federal Constitution, those who are eligible to vote for Representatives to their State Legislature are, by definition, the ones eligible to vote for Members of the federal House of Representatives.

The 17th Amendment [ratified 1913] provided that those who were eligible to vote for Representatives to the US House would also be eligible to vote for the US Senators.

With four later amendments, the States decided that they would not deny eligibility to vote to Citizens on account of race (15th Amendment), sex (19th Amendment), failure to pay taxes (24th Amendment), and for those 18 years of age or older on account of age (26th Amendment).

So the States have retained their original authority to set whatever qualifications for voting they deem appropriate, subject to their agreement (with each other) that they would not deny suffrage on account of a Citizen’s being in one of those four categories.

2. Voting fraud

But today, we all know that, due to the federal government’s long continuing refusal 3 to control immigration 4 and protect the States from Invasion,5 illegal aliens are flooding into our Country. In at least 15 States, illegals may get drivers’ licenses [link] [link]; and with California’s “motor voter law”, illegals are automatically registered to vote when they get a drivers’ license! 6

Furthermore, there are Precincts in this Country where well over 100% of the registered voters turn out to vote [link]! This Georgia Precinct had a 243% voter turnout!

Our elections are also corrupted by the “ghost voters” described in Deroy Murdock’s article [here]. Murdock shows that throughout the United States, over 3.5 million persons who don’t exist are registered to vote. For North Carolina, Murdock finds 189,721 ghost voters. Virginia has 89,979 ghost voters. But that’s a pittance compared to California which “is a veritable haunted house, teeming with 1,736,556 ghost voters.”

When you add California’s 1,736,556 ghost voters to the illegal aliens who also vote there (thanks to “Motor Voter”)7 and understand that this problem is nation-wide; who can deny that the States need to man-up and clean up their corrupt voting systems? The federal government has no constitutional authority to clean up the voting rolls; 8 but the States have the inherent and retained duty and power to do so.

By requiring photo IDs, the Citizens of North Carolina have taken a first step towards getting rid of some of those 189,721 ghosts, plus the illegals, who corrupt elections within their State.

3. The Federal Government has usurped the States’ expressly retained power to set qualifications for Voters

In 1993, Congress passed the National Voter Registration Act (NVRA) [link], wherein they unlawfully seized power to dictate voter registration procedures (for federal elections) for the entire Country.

By dictating the registration procedures each State must use, and by mandating the voter registration form [the “federal form”] each State must use when registering voters; the NVRA stripped the States of their power to determine whether voters in their State meet the qualifications for voting set forth within their State Constitutions. It thus prohibits the States from enforcing the qualifications for voting set forth in their State Constitutions! 9

This is shown by what happened in Arizona:

The Constitution of the State of Arizona restricts voting to Citizens. During 2004, the People of Arizona (which had been overrun with illegal aliens) adopted an initiative (Proposition 200) which required those in Arizona who apply to register to vote, to provide documentary proof of citizenship.  But a lawsuit was filed in federal court; and the Ninth US Circuit Court of Appeals ruled that since the National Voter Registration Act of 1993 doesn’t require applicants for voter registration to provide documentary proof of citizenship, the States may not require it.

Thereafter, in Arizona v. The Inter Tribal Council of Arizona, Inc. (2013), the US Supreme Court affirmed the Ninth Circuit’s opinion [link].

I wrote about the Ninth Circuit’s opinion [here] and the Supreme Court’s opinion [here]. Both opinions are monuments to judicial incompetence – or worse. The assertions made by the Courts in their attempts to justify their unconstitutional judgments are demonstratively false. The majority opinion of the Supreme Court is also logically incoherent.

But here we are: The Supreme Court has held that since the federally mandated voter registration form doesn’t require that persons registering to vote provide proof of citizenship, the States may not require it. What this means, in practice, is that the States must register anyone who fills out the federal form.

4. So where does this leave North Carolina?

The federal voter registration form may be seen (in 15 different languages) [here].

The federal form doesn’t require applicants for registration to provide a photo ID. Therefore, consistent with Arizona v. The Inter Tribal Council of Arizona, Inc., North Carolina may not require applicants for registration to provide a photo ID.

May North Carolina require voters to present a photo ID when they show up to vote? The Supreme Court hasn’t directly addressed this; 10 but consider that since the federal government requires the States to register anyone who fills out the federal form, why would the feds permit the States to deny exercise of the suffrage to any name which is “registered”?

We already know how U.S. District Judge Loretta Biggs is going to rule – and her ruling is consistent with the Supreme Court’s lawless holding in Arizona v. The Inter Tribal Council of Arizona, Inc.

5. Are There any Men in North Carolina?

The 7th paragraph of our Declaration of Independence recites how the Colonists opposed with manly firmness the King’s invasions on the rights of the people.
Are there any politicians in North Carolina today who will oppose the federal government’s invasions on the rights of the Citizens of North Carolina to set and enforce requirements for voting within their State?

A State Attorney General with brains and a spine would inform the federal judge that North Carolina won’t participate in the litigation; that she may issue all the Orders and Judgments she wants – North Carolina will ignore them – because (if she obeys the Supreme Court instead of the federal and State Constitutions) her Orders and Judgments will be void as in violation of Article I, §2, clause 1, US Constitution; and as in violation of the Sovereign Rights of North Carolina to enforce their own Constitution respecting voter qualifications.

What could a federal judge do about such a principled response from North Carolina? She has no Army. She has no power to enforce her judgments. She has to depend on the Executive Branch of the Federal government to enforce her judgments.11

So we would find out whether Trump actually means it when he says he wants honest elections, or whether he is just another fake “conservative”. If he is a fake, he will send in the National Guard to enforce the Judge’s unconstitutional judgment. But if Trump lives up to his words about the need for honest elections [link]; then he will refuse to send in the National Guard to enforce the unconstitutional Judgment; and North Carolina will have won the Battle and set a noble example for other States to follow.

6. Conclusion

The Deep State which controls the federal government doesn’t want elections cleaned up – they need dirty elections to get their henchmen in office. So they have embarked upon a course of action (such as the NVRA) to try to prevent the States from cleaning up elections. So, for Heaven’s Sake! Man up and resist! Our Framers always advised the States to resist unconstitutional acts of the federal government [link] [link]! We will never get honest elections unless the States man up and reclaim their rightful authority over their own voter rolls. Do it before you lose the political power to do it.

Endnotes:

1 From 1778 to 1789, we operated under our first federal Constitution, the Articles of Confederation [link].

2 Our present federal Constitution was ratified on June 21, 1788 [link].

3 Both political parties have embraced the Globalists’ open borders policy – both parties have failed to secure our Borders.

4 Art. I, §9, cl. 1, US Constit., delegates to Congress as of January 1, 1808, the power to control immigration.

5Art. IV, §4, US Constit., requires the federal government to protect each of the States against Invasion.

6 During 2013, California passed a law which permits illegal aliens to get drivers’ licenses [link]; and during 2015, consistent with the unconstitutional National Voter Registration Act, passed “Motor Voter” providing that when one gets a drivers’ license, one is automatically registered to vote [link].

7 So with a “National Popular Vote” for President, or to ratify a new Constitution (if the mode of ratification for the new Constitution is a national referendum), it would be easy to steal the outcome! Illegal aliens and “ghost voters” in California alone would determine the outcome for the entire Country.

8 President Trump’s Executive Order 13799 of May 11, 2017, which purported to establish a “Presidential Advisory Commission on Election Integrity” [link], is unconstitutional as outside the scope of powers delegated to the federal government.

9 Justice Thomas understands this: Until the federal government usurped power over this issue, the States always determined their own procedures for registration of those who were, pursuant to their State Constitution, qualified to vote. The function of registration of voters is so that the States may determine whether the qualifications for voting set forth in their State Constitution have been met! Justice Thomas points out in his dissent in Arizona v. The Inter Tribal Council of Arizona, Inc. at II. A. 2:

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

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

10 In the Supreme Court’s majority opinion [link], Scalia mentioned (4th para down from top) that Arizona’s Proposition 200 also required voters “to present identification when they vote on election day”; but he did not grace us with an answer as to whether States may require voters to prove that they are who they say they are when they show up to vote.

11 As Alexander Hamilton points out in Federalist No. 78, the Judicial Branch is the weakest branch. All they can do is issue orders and judgments – they can’t enforce their orders and judgments. They must rely on the Executive Branch to carry them out:

“… the judiciary… will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” [caps are Hamilton’s; italics added]

February 27, 2020 Posted by | Arizona Lawsuit, Arizona's Proposition 200, National Voter Registration Act, Nullification, Voter eligibility, Voter Qualifications | , , , , | 20 Comments

How to nullify Roe v. Wade

To see how the US Supreme Court violated our Constitution when they decided Roe v. Wade, see Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place

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

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May 22, 2019 Posted by | Abortion, Alabama Heartbeat law, Nullification, Roe v. Wade | , , , , | 4 Comments

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

By Publius Huldah

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

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

1. First Principles

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

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

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

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

 

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

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

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

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

 

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

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

Organic Law

Black’s Law Dictionary defines “organic law” as

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

The organic laws of the United States are

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

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

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

Statute Law

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

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

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

Common Law

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

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

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

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

 

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

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

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

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

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

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

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

 

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

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

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

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

That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes back to the Magna Charta: it means that a person’s life, liberty or property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial.

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

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

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

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

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

 

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

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

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

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

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

Endnotes:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

“…the…authority of the federal …[courts]…is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction…”

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

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

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

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

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

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

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November 25, 2018 Posted by | 14th Amendment, 3000 page constitution, Abortion, annotated constitution, Article V Convention, common law, Convention of States project, Creature of the Compact, due process clause, Enumerated Powers of Federal Courts, federal judges, Judicial Abuse, Law of the Land, Nullification, organic law, precedents, Publius Huldah, Roe v. Wade, statute law, The Judicial Branch | , , , , , , , , , , , , , , , , , , , , , | 13 Comments

Does the Creature Dictate to the Creator?

By Publius Huldah

WHERE did the federal government come from? It was CREATED by the Constitution.

WHO ratified the Constitution? WE THE PEOPLE, acting through special ratifying conventions called in each of the States.  So it was The People of each State who ratified the federal Constitution for their State.

So the federal government is merely the “creature” of the Constitution and is completely subject to its terms.

Those are not my words. Those are the words of Alexander Hamilton in Federalist Paper No. 33 (5th para), and Thomas Jefferson in his draft of The Kentucky Resolutions of 1798, under the 8th Resolution.

IT IS IMPOSSIBLE to have a correct understanding of the relation between the federal government and The People unless you understand that the federal government is merely the “creature” of the Constitution. It is not a party to it. The STATES are the parties to the constitutional compact (contract).

THIS is why James Madison said, in his Report of 1799 to the Virginia Legislature on the Virginia Resolutions of 1798, under his discussion of the 3rd Resolution, that THE STATES, as the creators of the federal government, are the final authority on whether their creature has violated the compact THE STATES MADE WITH EACH OTHER. The constitutional compact is between the Sovereign States. The federal government is merely the “creature” of that compact.

That is why the States have the natural right to NULLIFY unconstitutional acts of their “creature”, the federal government.

But our “creature”, the federal government, has taken the bizarre position that the Constitution means whatever THEY say it means.

Oh, do they need smacking down! Does the creature dictate to its creator?

The nullification deniers say, “YES!”

Manly men say, “NO!”

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August 10, 2015 Posted by | Nullification, nullification deniers, Resistance to tyranny | , , , , , , , | 31 Comments

Nullification: The Original Right of Self-Defense

By Publius Huldah

What did our Framers really say we must do when the federal government usurps power?

They never said, “When the federal government ignores the Constitution, amend the Constitution.

They never said, “File a lawsuit and let federal judges decide.”

Instead, they advised two manly remedies. We’ll look at one of them – nullification – in this paper. 1

First, let’s look at the Constitution we have.

Our Federal Government has Enumerated Powers Only

 With our federal Constitution, we created a federal government. It is:

  • A federation of sovereign States united under a national government ONLY for those limited purposes itemized in the Constitution;
  • With all other powers reserved by the States or the People.

We listed every power we delegated to the federal government: Most of the powers delegated over the Country at large are listed at Article I, §8, clauses 1-16.

All our Constitution authorizes the federal government to do over the Country at large falls into four categories:

  • Military defense, international commerce & relations;
  • Immigration & naturalization;
  • Domestically, 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.

That’s basically it! All other powers are reserved by the States or the People. Depending on how you count, Congress only has 18-21 powers over the Country at Large. 2

It is only with respect to the enumerated powers listed in the Constitution that the federal government has lawful authority.

  • If it’s on the list, Congress may make laws about it.
  • But if it’s NOT on the list, Congress usurps power & acts unlawfully when it interferes.

Is “education” on the list of delegated powers? Raising children? Health Care? Environmental regulation? Is most of what they do on the list? Since these are not delegated powers listed in our Constitution, the federal government usurps power and acts unlawfully when it meddles.

So then, what do we do when the federal government usurps powers not on the list?

 Don’t Submit to Unconstitutional Laws – Nullify Them! 3

Our Framers said the federal government is our “creature” and must obey our Will as enshrined in our Constitution. And when it doesn’t, we must defend the Constitution by invoking our natural right of self-defense:

Alexander Hamilton said in Federalist No. 28 (last 5 paras): [I’m condensing]

“If the representatives of the people betray their constituents, there is no recourse left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted … [by] … State governments [which] will … afford complete security against invasions of the public liberty by the national authority…” [emphasis mine]

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

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

Thomas Jefferson said in his draft of The Kentucky Resolutions of 1798, 8th Resolution:

“…where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact … to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” [emphasis mine]

James Madison commented on this in his Notes on Nullification (1835) (p.573-607):

“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” [emphasis mine]

Note that Hamilton, Jefferson, and Madison said nullification is a natural right – it is NOT a “constitutional right”. Rights don’t come from the Constitution – they come from God. 4

HERE is Madison’s “Report of 1799-1800 on the Virginia Resolutions”. He said under his discussion of the 3rd Resolution [I’m condensing]:

The States, in their sovereign capacity, are the parties to the constitutional compact; and are thus the final authority on whether the federal government has violated the Constitution. There can be no tribunal above the authority of the States to decide whether the compact made by them has been violated by the federal government. (p 192)

That if, when the federal government usurps power, the States don’t stop the usurpation, and thereby preserve the Constitution; there would be no relief from usurped power. This would subvert the Rights of the People as well as betray the fundamental principle of our Founding. (p195)

That the Judicial Branch is as likely to usurp as are the other two Branches. Thus, the Sovereign States have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches. (p196)

That all 3 Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of the States. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. (p196)

So the Judicial Branch does not have final say as to the rights of the parties to the constitutional compact. Otherwise, the delegation of judicial power would annul the authority delegating it; and the concurrence of the judicial branch with the other branches in usurping powers, would subvert the Constitution forever. (p196)

In Federalist No. 46, Madison says, respecting unconstitutional acts of the federal government:

  • The People can refuse to cooperate with federal officers [7th para];
  • State officials can oppose the feds [7th para];
  • State Legislatures can invent legislative devices to impede & obstruct the federal government [7th para];
  • States can cooperate in concerted plans of resistance [8th para];
  • States can easily defeat the federal government’s schemes of usurpation [10th para]; and as the last resort,
  • States must defend themselves from the federal government – that’s why the People are armed.

So Jefferson, Hamilton and Madison tell us: When the federal government asks or directs States to do things which aren’t on the list, the proper response is, “No!”

State Governments Must Man Up and Preserve our Constitution.

The Declaration of Independence says at the 7th para that the colonials “opposed with manly firmness” the King’s “invasions on the rights of the people”.

We need today that same manly opposition to tyranny. And we are starting to see some: The Tenth Amendment Center says over 200 bills have been filed this year in State Legislatures to nullify unconstitutional acts of the federal government. E.g.:

  • To allow terminally ill people access to experimental drugs & medical treatments despite FDA rules – drugs & medical treatments are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.
  • Deny resources and assistance to the National Security Agency – spying on us is not on the list! And the 4th Amendment didn’t stop them from spying on us!
  • Nullify federal bans on growing hemp & marijuana. Agriculture and drugs are not on the list! And the 10th Amendment didn’t stop them from usurping powers in this area.

An Indiana Legislator filed a bill to nullify all federal EPA Regulationsenvironmental protection is not on the list! And the 10th Amendment didn’t stop them from usurping power over the environment.

Disarming the American People: If Congress by law, or the President by executive order, or the BATF by rule, or the supreme Court by opinion, or the federal government by UN Treaty, orders The People to turn in our arms, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us. Gun control is not on the list! And the 2nd Amendment didn’t stop them from regulating ammunition, firearms, and firearms dealers.

Accordingly, States should pass laws directing their firearms and ammo dealers to ignore all federal dictates which pretend to restrict arms, firearms, ammo, and sales of same. The Law should also provide that the State Attorney General will defend any Citizen of the State from unlawful acts committed against him by agents of the federal government attempting to enforce unconstitutional federal dictates within the borders of the State.

Prayer in the Public Schools: When, in 1962, the US supreme Court began its war against Christianity by banning prayers in the public schools, State legislatures should have passed laws directing their public schools to ignore the unconstitutional opinion of the supreme Court. “Religion”, “prayers”, and “public schools” are not on the list of delegated powers. And the 1st Amendment didn’t stop them from “prohibiting the free exercise of religion”.

Brave Citizens Must Man up Also.

As noted above, Madison says in Federalist No. 46 that the People can refuse to cooperate with federal officers.

Rosa Parks & Martin Luther King showed us spine 50 years ago when they nullified the State & local Jim Crow laws by refusing to obey those unconstitutional laws.

Recently in Connecticut, Citizens refused to obey an unconstitutional State law which pretends to require them to register their firearms. Art. I, §15, CT Constitution says:

“Every citizen has a right to bear arms in defense of himself and the state.”

If you are a “Citizen”, you have the right to bear arms – that’s all you need in Connecticut. So the Connecticut Statute making it a felony to possess guns which are not registered is unconstitutional as in violation of Art. I, § 15 of the State Constitution.

And The People – as the creators of the State government – are the ones to ultimately decide!

All nullification requires is a spine. And Rosa Parks & MLK showed us what spine looks like: You say, “No more!”

The “we lost the civil war” objection to Nullification.

Those who chant this objection seem to have in mind the “nullification crisis of 1832”. Let’s debunk it:

The southern States were agricultural. They bought manufactured goods from England. England bought southern cotton. Infant industries in the North East were producing some of the same manufactured goods as England; but because they were more expensive than the imports, they couldn’t compete.

So in 1828, Congress imposed a high tariff on the imports. The Southern States called this the “tariff of abominations”, because it made the English goods too expensive to buy; and when the Southern States stopped buying English goods, England stopped buying Southern cotton. This devastated the Southern economy.

Note that Congress has specific authority to impose tariffs on imports: Art. I, § 8, cl. 1. So the Tariff Act of 1828 was constitutional.

The nullification crisis of 1832 was brought on because S. Carolina wanted to “nullify” the Tariff Act of 1828 – a constitutional law! South Carolina developed a bizarre theory that

  • A State has a “constitutional right” to nullify any federal law; and
  • The nullification is presumed valid unless ¾ of the States say it isn’t valid.

In James Madison’s Notes on Nullification (1835) (p. 573-607), he discussed and debunked S. Carolina’s theory. He said:

  • The federal government has delegated authority to impose tariffs;
  • The Constitution requires that tariffs be uniform throughout the United States;
  • States can’t nullify tariffs authorized by the Constitution;
  • ¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government; and
  • Nullification is not a constitutional right.

Near the end of his Notes, Madison quoted Thomas Jefferson’s famous statement:

“…but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact …to nullify of their own authority all assumptions of power by others within their limits …” [emphasis mine]

Madison then says:

“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]

Do you see? Madison’s points are:

  • States may not properly nullify constitutional acts of the federal government; and
  • When an act of the federal government is unconstitutional, nullification is a NATURAL RIGHT – not a “constitutional right”. 5

Start Doing YOUR Duty

Your Duty is to read our Declaration of Independence and Constitution and learn The List of Enumerated Powers. YOU were supposed to enforce the Constitution with your votes. But instead of supporting only candidates who knew and obeyed our Constitution, you abdicated your Responsibility and voted for candidates who told you what you wanted to hear.

For the Sake of your Country and Posterity, you must also renounce cowardice and appeasement as the response to evil.

If you fail us, hell on Earth is just around the corner.

Endnotes:

1 The other Remedy is to elect faithful representatives. At the Virginia Ratifying Convention on June 20, 1788 at [223], James Madison said our Constitution depends on the people having the “virtue and intelligence to select men of virtue and wisdom” to office. In Federalist No. 44 [12th para from end], he says when Congress usurps powers, and the executive and judiciary departments go along with it,

“…a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers…” [emphasis mine]

We must start electing candidates who know the Constitution!

2 THIS Chart lists the enumerated powers over the Country at Large and illustrates how Principles in our Declaration of Independence were implemented in our Constitution.

3 Stop quibbling over terminology. As a People, we have lost the ability to think conceptually. When some don’t see the word, “nullification”, in a writing, they insist the writer didn’t support it. But the concept is refusal to submit to unconstitutional laws. You can call it “non-violent civil disobedience”, “that original right of self-defense”, “resistance”, “refusal to obey”, “impeding & obstructing”, “nullification”, “interposition”, or something else. I use “nullification” because the term has a distinctive meaning and was used by our beloved Thomas Jefferson. You may call broccoli “broccoli”, a “green vegetable”, a “cruciferous vegetable”, a “super food”, or “little trees”. But “broccoli” is the most precise and distinctive term. Do you see?

4 So when Michael Farris, and others who tell us a convention is the only way out, disparage nullification as an “extra-constitutional doctrine”, the proper response is: Nullification is NOT a “constitutional right or remedy” – it is that NATURAL RIGHT of self-defense which pre-dates and pre-exists the Constitution. Farris has repudiated our Founding Principles that Rights come from the Creator God, and that the purpose of government is to secure the Rights GOD gave us (Declaration of Independence, 2nd para). In Farris’ brave new world, “rights” come from the Constitution – where they are subject to the will of human governments. See, e.g., his “parental rights” amendment HERE. “Child raising” is not now on the list of delegated powers – but §3 of Farris’ “parental rights” amendment would delegate power over children to the federal government. Read it.

5 Rights don’t come from the Constitution! They come from GOD! PH

May 3, 2015

 

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May 3, 2015 Posted by | Jim Crow laws, Kentucky Resolutions of 1798, Madison's Notes on Nullification (1834), Madison's Report on the Virginia Resolutions (1799-1800), Martin Luther King, Nullification, nullification deniers, South Carolina nullification crisis, Tariff of Abominations, Tarrif Act of 1828 | , , , , , , , , , , , , , , , , , | 44 Comments

The States won’t save us at an Article V Convention

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March 27, 2015 Posted by | Article V, Article V Convention, Jim Crow laws, Nullification | , , , , , , | 6 Comments

James Madison Rebukes Nullification Deniers

By Publius Huldah

This is The Age of Ignorance. Our “intellectuals” can’t think.  Our “scholars” parrot each other. Ignorant people pontificate on constitutional issues or fixate on idiotic theories.  Our People despise Truth and disseminate lies.

Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy BarnettDavid Barton of Wallbuilders, and history professor Allen C. Guelzo, say that nullification by States of unconstitutional acts of the federal government is unlawful and impossible. They make the demonstrably false assertions that:

♦  States don’t have the right to nullify unconstitutional acts of the federal government because our Constitution doesn’t say they can do it;

  Nullification is literally impossible;

The supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says; and

James Madison, Father of Our Constitution, opposed nullification.

Their assertions contradict our Declaration of Independence, The Federalist Papers, our federal Constitution, and what James Madison, Thomas Jefferson, and Alexander Hamilton really said.

What are the Two Conditions Precedent for Nullification?

The deniers seem unaware of the two conditions our Framers saw must be present before nullification is proper and possible. These conditions are important – you will see why!:

The act of the federal government must be unconstitutional usually a usurpation of a power not delegated to the federal government in the Constitution; and

The act must be something The States or The People can “nullify”- i.e., refuse to obey (the act must order them to do something or not do something), or otherwise thwart, impede, or hinder

What is “Interposition” and What is “Nullification”?

A State “interposes” when it stands between the federal government and The Citizens of the State in order to protect them from the federal government. Interposition takes various forms, depending on the circumstances. Hamilton refers to interposition in Federalist No. 33 (5th para):

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

“Nullification” is merely one form of interposition.

Here are three highly relevant illustrations:

♠ When the act of the federal government is unconstitutional and orders The States or The People to do – or not do – something, nullification by direct disobedience is the proper form of interposition.

♠ When the act of the federal government is unconstitutional, but doesn’t order The States or The People to do – or not do – something (the alien & sedition acts), The States may take various measures to thwart, impede, or hinder implementation of the federal act in order to protect The Member States, The People, and The Constitution from federal tyranny.  (See the Virginia and Kentucky Resolutions of 1798.)

♠ When the act of the federal government is constitutional, but unjust (the Tariff Act of 1828), the States may not nullify it; but may interpose by objecting and trying to get the Tariff Act changed.

Our Founding Principles in a Nutshell

In order to understand The Right of Nullification, one must also learn the Founding Principles set forth in The Declaration of Independence (2nd para). Then one can see that “when powers are assumed which have not been delegated, a nullification of the act” 1 is “the natural right, which all admit to be a remedy against insupportable oppression.” 2 These Principles are:

1.  Rights come from God;

2.  People create governments;

3.  The purpose of government is to secure the rights God gave us; and

4.  When a government We created seeks to take away our God given rights, We have the Right – We have the Duty – to alter, abolish, or throw off such government.

Let us look briefly at these Principles:

1. Our Declaration of Independence (2nd para) recognizes that God is the grantor of Rights. So Rights don’t come from the Constitution, the supreme Court or the federal government.

2.  The Preamble to our Constitution shows that WE THE PEOPLE created the federal government. It is our “creature”. Alexander Hamilton says this in Federalist Paper No. 33 (5th para); and Thomas Jefferson, in his draft of The Kentucky Resolutions of 1798 (8th Resolution). As our “creature”, it may lawfully do only what WE authorized it to do in our Constitution.

We created a “federal” government: An alliance of Sovereign States 3 associated in a “federation” with a national government to which is delegated supremacy over the States in few and defined areas only. James Madison says in Federalist No. 45 (9th para):

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

Do you see? We delegated only “few and defined” powers to the federal government. These are the “enumerated powers” listed in the Constitution. 4

These enumerated powers concern:

Military defense, international commerce & relations;

Control of immigration and naturalization of new citizens;

Creation of 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, protect certain civil rights.

It is only with respect to the “enumerated powers” that the federal government has lawful authority over the Country at large!!!  All other powers are “reserved to the several States” and The People.

3. Our Constitution authorizes the federal government to secure our God-given Rights in the following ways: 5

It is to secure our rights to life and liberty by:

Military defense (Art. I, Sec. 8, cl. 11-16);

Laws against piracy and other felonies committed on the high seas (Art. I, Sec. 8, cl. 10);

Protecting us from invasion (Art IV, Sec. 4);

Prosecuting traitors (Art III, Sec. 3); and

Restrictive immigration policies (Art. I, Sec. 9, cl. 1).

It is to secure our property rights by:

Regulating trade & commerce so we can produce, sell & prosper (Art. I, Sec. 8, cl.3). The original intent of the interstate commerce clause is to prohibit States from levying tolls & taxes on articles of commerce as they are transported thru the States for buying & selling.

Establishing uniform weights & measures and a money system based on gold & silver (Art I, Sec. 8, cl. 5) – inflation via paper currency & fractional reserve lending is theft!

Punishing counterfeiters (Art I, Sec. 8, cl. 6);

Making bankruptcy laws to permit the orderly dissolution or reorganization of debtors’ estates with fair treatment of creditors (Art I, Sec 8, cl. 4); and

Issuing patents & copyrights to protect ownership of intellectual labors (Art I, Sec 8, cl 8).

It is to secure our right to liberty by:

Laws against slavery (13th Amendment);

Providing fair trials in federal courts (4th, 5th, 6th, 7th, and 8th Amendments); and

Obeying the Constitution!

This is how our federal Constitution implements The Founding Principle that the purpose of government is to secure the rights God gave us!

4. The fourth Founding Principle in our Declaration is this: When government takes away our God given rights, We have the Right & the Duty to alter, abolish, or throw off such government. Nullification is thus a natural right of self-defense:

Thomas Jefferson said:

“… but where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” 6 [boldface mine]

James Madison commented on the above:

“… the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression…” 7

Alexander Hamilton says in Federalist No. 28  (5th para from end):

“If the representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success …” [boldface mine]

Hamilton then shows how The States can rein in a usurping federal government:

“…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…”

Do you see?

But the nullification deniers do not see because, in addition to their apparent unfamiliarity with the original source writings on nullification (as well as The Federalist Papers), they reject, or do not understand, the Founding Principle that Rights pre-date & pre-exist the Constitution and come from God.  Nullification is not a paltry “constitutional right”!  It has a hallowed status – it is that natural right of self-defense which pre-dates & pre-exists the Constitution.

Now, let us look at the false assertions made by the nullification deniers.

False Assertion 1:

That States can’t nullify unconstitutional acts of the federal government because the Constitution doesn’t say they can do it.

♣  As we have just seen, Jefferson, Madison, and Hamilton saw nullification of unconstitutional acts of the federal government as a “natural right” – not a “constitutional right”. And since Rights come from God, there is no such thing as a “constitutional right”!

♣ The Right of Nullification, transcending as it does, the Constitution; and being nowhere prohibited by the Constitution to the States, is a reserved power. The 10th 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.”

Nothing in the federal Constitution prohibits The States from nullifying unconstitutional acts of the federal government. Thus, nullification is a reserved  power of the States & The People.

♣  We saw where Madison says in Federalist No. 45 that the powers delegated to the federal government are “few and defined”, and all other powers are “reserved to the several States”.

Thus, it is the federal government which is supposed to look to the Constitution for the list of “enumerated powers” We The People delegated to it.

The States don’t go to the Constitution to look for permission because they retain all powers they didn’t exclusively 8 delegate to the federal government, or prohibit by Art. I, Sec. 10.

The nullification deniers have it backwards:  They permit the federal government to ignore the “enumerated powers” limitations set forth in the Constitution; but insist The States can’t do anything unless the Constitution specifically says they can!

Do you see how they pervert Our Constitution?

False Assertion 2:

That Nullification is literally impossible.

We saw above the two conditions which must exist before nullification is proper and possible:

The act of the federal government must be unconstitutional, and

The act must be something The People or The States can refuse to obey, or otherwise thwart, impede or obstruct.

Here are examples of unconstitutional federal acts the States can and should nullify:

The Constitution does not delegate to the federal government power to ban Christianity from the public square. But in 1962, the supreme Court first ordered The States to stop prayers in the public schools. That Court next banned the Ten Commandments from the public schools.  Since those orders were usurpations of powers not lawfully possessed by the Court,the States should have nullified them by directing their Schools to ignore them.

If Congress by “law”, or the President by “executive order”, orders The People to turn in our guns, We must refuse to comply. The Constitution doesn’t authorize the federal government to disarm us.  So, The States and The People must nullify such law or order by refusing to obey.

Here are examples of unconstitutional & unjust State and municipal laws Rosa Parks and Martin Luther King nullified:

The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using non-violent civil disobedience, Rosa Parks and MLK led black people to refuse to obey these unjust and unconstitutional (Sec. 1, 14th Amdt.) laws. This was nullification by brave Citizens!

Now, I’ll show you unconstitutional acts which couldn’t be directly disobeyed because they weren’t directed to anything The States or The People could refuse to obey:

In 1798, Thomas Jefferson wrote The Kentucky Resolutions, and James Madison wrote The Virginia Resolutions.   These Resolutions objected to laws made by Congress which purported to grant to the President dictatorial powers over aliens and seditious words.

Kentucky and Virginia could object, but they couldn’t prevent the President from enforcing the alien & sedition acts, because the President had the raw power to send out thugs to arrest aliens or people who had spoken or written “seditious” words; and then to persecute them.

So Jefferson and Madison showed why the alien & sedition acts were unconstitutional, protested them, and asked other States to join the protest and take whatever measures needed to be taken to protect The States, The People, and The Constitution.

Now! Note WellRandy Barnett, law professor, and other deniers crow that the Virginia and Kentucky Resolutions prove there is no “literal power” of nullification in the States.

But Barnett should know better because he is a lawyer. Every litigation attorney knows this:  At a motion hearing before the judge, opposing counsel whips out a court opinion which he cites as authority for a legal point.  He gives the judge a highlighted copy and gives you (opposing counsel) an un-highlighted copy.  While he is making his argument to the judge, you must listen to what he is saying, and at the same time, read the opinion and develop an argument which “distinguishes” the opinion opposing counsel is using from the case at bar.  When opposing counsel finishes, the judge looks at you and says, “And how do you respond?” You must be ready with your argument right then.

Are we to believe that Randy Barnett, law professor, sitting in his ivory tower and under no pressure, is unable to distinguish between situations where a State does have a “literal power” to nullify (by direct disobedience) an unconstitutional act of the federal government [when it orders The State or The People to do -or not do – something]; and when The State does not have a “literal power” to directly disobey the act [because, as with the alien & sedition acts, it does  not dictate something The States or The People can refuse to obey], and so they can only thwart, impede & obstruct the unconstitutional act?

 

False Assertion 3:

That the supreme Court is the final authority on what is constitutional and what is not; and The States and The People must submit to whatever the supreme Court says.

The federal government has become a tyranny which acts without constitutional authority.

This came about because we were lured away from The Founding Principle that the purpose of government is to secure the Rights God gave us; and were seduced into believing government should provide for our needs and protect us from the challenges of Life.

Progressives of the early 1900s 9 transformed the federal government into the Frankensteinian monster it is today. They 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. People in the federal government now claim power to do whatever they want to us.

The federal government imposed by the Progressives is evil:

In order to provide benefits to some; the federal government violates the God-given property rights of others.  The federal government robs Peter to pay Paul.

In order to protect us from the challenges of life (including made up problems such as “global warming” and “lack of medical insurance”), the federal government violates everyone’s God-given rights to Liberty.

And thus today, the federal government:

Usurps powers not delegated to it in the Constitution. Most of what it does is unconstitutional as outside the enumerated powers delegated in our Constitution.

Has become an instrument of oppression, injustice, and immorality.

Has taken away most of our God given rights, and is now conniving to take away our God given right to self-defense.

Now you know how the federal government was transformed from being the securer of our God given rights to a tyranny which oppresses some of the people for the benefit of others; and takes everyone’s Liberty away – except for those in the ruling class.

 

So!  What do We do?  What can We do?

The nullification deniers insist We must obey whatever Congress and the President dictate unless five (5) judges on the supreme Court say We don’t have to.  They say the supreme Court is the final authority on what is constitutional and what is not.

But think: Who created the federal government?

We did!  It is our “creature”. Is the “creature” to dictate to the “creator”?

The nullification deniers say, “Yes!”   They say that:

Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and

Every executive order issued by the President [the Executive Branch of the federal government] is binding; and

The States and The People must obey, unless and until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law or executive order is unconstitutional.

In other words, only the federal government may question the federal government; and NO ONE may question the supreme Court!

Under their vision, the federal government WE created with the Constitution is the exclusive and final judge of the extent of the powers WE delegated to it; and the opinion of five (5) judges, not the Constitution, is the sole measure of its powers.

Jarrett Stepman regurgitates the statist lie that “the ultimate decision maker in terms of America’s political system is the Supreme Court.”

Randy Barnett, law professor, chants the statist refrain, “…What has the Supreme Court said and meant? and … Are there now five justices to sustain the claim?”.

Barnett selects two paragraphs from Madison’s Report on the Virginia Resolutions (1799-1800) (which address the alien & sedition acts), and claims they show Madison “expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states”.

Well, We saw above that States couldn’t directly disobey the alien & sedition acts because they purported to grant dictatorial powers to the President; and did not require The States or The People to do – or not do – something.

And the two paragraphs Barnett claims are so “telling” as to The States’ lack of “literal power” to nullify anything, and as to the ultimate authority of the Judicial Branch, appear under Madison’s discussion of the last two Resolutions (the 7th  & 8th) where Virginia had asked other States to join them in taking measures to protect The States, The People and The Constitution from the federal government.  In his discussion of the 7th Resolution, Madison merely responded to the objection that only federal judges may declare the meaning of the Constitution:  Of course Citizens & States may declare acts of the federal government unconstitutional!  When they do so, they are not acting as judges – they are acting as Citizens and as Sovereign States to take those measures which need to be taken to protect themselves from unconstitutional acts of the federal government.

 

Now! Note WellMadison says, in the same Report Barnett cites, that it is “a plain principle, founded in common sense” that The States are the final authority on whether the federal government has violated our Constitution! Under his discussion of the 3rd Resolution, Madison says:

“It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts; that where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made, has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.” [emphasis mine]

A bit further down, Madison explains that if, when the federal government usurps power, the States cannot act so as to stop the usurpation, and thereby preserve the Constitution as well as the safety of The States; there would be no relief from usurped power.  This would subvert the Rights of the People as well as betray the fundamental principle of our Founding:

“…If the deliberate exercise, of dangerous power, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself as well as to provide for the safety of the parties to it; there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognized under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.” [emphasis mine]

A bit further down, Madison answers the objection “that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort”.

Madison explains that when the federal government acts outside the Constitution by usurping powers, and when the Constitution affords no remedy to that usurpation; then the Sovereign States who are the Parties to the Constitution must likewise step outside the Constitution and appeal to that original natural right of self-defense.

Madison also says that the Judicial Branch is as likely to usurp as are the other two Branches. Thus, The Sovereign States, as The Parties to the Constitution, have as much right to judge the usurpations of the Judicial Branch as they do the Legislative and Executive Branches:

“…the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another — by the judiciary as well as by the executive, or the legislature.

Madison goes on to say that all three Branches of the federal government obtain their delegated powers from the Constitution; and they may not annul the authority of their Creator. And if the Judicial Branch connives with other Branches in usurping powers, our Constitution will be destroyed. So the Judicial Branch does not have final say as

“…to the rights of the parties to the constitutional compact, from which the judicial as well as the other department hold their delegated trusts. On any other hypothesis, the delegation of judicial power, would annul the authority delegating it; 10 and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution, which all were instituted to preserve.”

Shame on you nullification deniers who misrepresent what Madison said, or ignorantly insist that Madison said the Judicial Branch is the Final Authority!

False Assertion 4:

That James Madison opposed Nullification by States of Unconstitutional Acts of the Federal Government.

Matthew Spalding (Heritage Foundation) and David Barton (Wallbuilders) cite South Carolina’s Nullification Crisis of 1832 as “proof” that James Madison “vehemently opposed” nullification.

What Spalding and Barton say is not true.  Did they read what Madison wrote on S. Carolina’s doctrine of nullification? Are they so lacking in critical thinking skills that they can’t make the distinction between the nullification doctrine Madison (and Jefferson & Hamilton) embraced, and the peculiar doctrine of nullification advanced by S. Carolina?

We saw in Madison’s Report on the Virginia Resolutions (1799-1800)  that in a proper case, “interposing even so far as to arrest the progress of the evil” is essential “to preserve the Constitution itself as well as to provide for the safety of the parties to it”.

And we saw above that the condition which must be present before nullification is proper, is that the act of the federal government must be unconstitutional.

Now, let’s look at The Tariff Act of 1828 and the S. Carolina Nullification Crisis:

The South was agricultural.  During the 1820’s, the Southern States bought manufactured goods from England. England bought cotton produced by the Southern States.

However, “infant industries” in the Northeast were producing some of the same manufactured goods as England; but they were more expensive than the English imports.  So they couldn’t compete with the cheaper imports.

So!  In 1828, Congress imposed a high tariff on the English imports. The Southern States called this the “tariff of abominations”, because the tariff made the English goods too expensive to buy; and since the Southern States stopped buying English goods, the English stopped buying Southern cotton. The Southern States had to pay more for manufactured goods, they lost the major buyer of their cotton; and their economy was weakened.

Now! Note Well: Our Constitution delegates specific authority to Congress to impose tariffs on imports, and the tariff must be the same in each State (Art. I, Sec. 8, cl. 1).

Thus, the Tariff Act of 1828 was constitutional! 11

So!  Can you, dear Reader, see something which Matthew Spalding, Ph.D., and David Barton are unable to see?  South Carolina wanted to nullify a constitutional law!  Of course, Madison opposed S. Carolina’s peculiar doctrine of nullification! Madison (and Jefferson & Hamilton) always said the act nullified must be unconstitutional!

In his Notes on Nullification (1834), 12  Madison addressed S. Carolina’s peculiar doctrine. He said that in the Report of a special committee of the House of Representatives of South Carolina in 1828, a doctrine of nullification was set forth which asserted that:

♦ A State has a “constitutional right” to nullify any federal law; and

♦ The nullification is presumed valid, and is to remain in force, unless ¾ of the States, in a Convention, say the nullification isn’t valid.

What Madison opposed was the particular doctrine of nullification set forth by S. Carolina; and what Madison actually said about the S. Carolina doctrine is this:

The federal government has delegated authority to impose import tariffs;

The Constitution requires that all import tariffs be uniform throughout the United States;

States can’t nullify tariffs which are authorized by the Constitution;

¼ of the States don’t have the right to dictate to ¾ of the States on matters within the powers delegated to the federal government;

  Nullification is not a “constitutional right”;

And near the end of his Notes, Madison quoted with approval Thomas Jefferson’s statement:

“…but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them…” [boldface mine]

Madison then says:

“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [emphasis mine]

Do you see?  Madison is saying that:

S. Carolina couldn’t nullify the Tariff Act of 1828 because the Act was constitutional.

Nullification is a “natural right”- it is not a “constitutional” right. Rights don’t come from the Constitution.

All agree that when the federal government acts outside of the Constitution, nullification by the States is the proper remedy.

Application Today

When WE THE PEOPLE ratified our Constitution, and thereby created the federal government, WE did not delegate to our “creature” power to control our medical care, restrict guns and ammunition, dictate what is done in the public schools, dictate how we use our lands, and all the thousands of things they do WE never gave them authority in our Constitution to do.

Accordingly, each State has a natural right to nullify these unconstitutional dictates within its borders.  These dictates are outside the compact The Sovereign States made with each other –WE never gave our “creature” power over these objects.

As Jefferson and Madison said, without Nullification, The States and The People would be under the absolute and unlimited control of the federal government.

And that, dear Reader, is where these nullification deniers, with their false assertions and shameful misrepresentations, would put you.

To sum this up:

Nullification is a natural right of self-defense.

Rights don’t come from the Constitution. Like all Rights, the right of self-defense comes from God (The Declaration of Independence, 2nd para).

Nullification is a reserved power within the meaning of the 10th Amendment. The Constitution doesn’t prohibit States from nullifying, and We reserved the power to do it.

God requires us to disobey civil authorities when they violate God’s Law. That’s why the 2nd para of the Declaration of Independence says we have the duty to overthrow tyrannical government. See: The Biblical Foundation of our Constitution.

♦ Nullification is required by Oath of Office:  Article VI, cl. 3 requires all State officers and judges to “support” the federal Constitution. Therefore, when the federal government violates the Constitution, the States must smack them down.

Conclusion

Our Founders and Framers were a different People than we of today. They were manly men who knew statecraft & political philosophy and could think. But our “experts” of today have been indoctrinated with statism and can’t think.  They lie, or they just ignorantly repeat what they hear without checking it out to see if what they are repeating is true.

So WE need to man up, throw off the indoctrination and the phony “experts”, learn our Founding Documents including The Federalist Papers, and stop repeating the lies we are told.  Trust no one.  And repudiate cowardice as the proper response to the evil which is overtaking our Land. Man up, People!  PH

Post script added October 2, 2013:

Something is rotten in the Cato Institute:  Robert A. Levy, Chairman of the Cato Institute, recently wrote an article published in the New York Times,  “The Limits of Nullification“, where Levy regurgitates the same fabrication Randy Barnett told to the effect that Madison said in his Report of 1800, that all the States can do is express their opinion that a federal law is unconstitutional.  The kindest thing one can say about Levy’s article is that it is “childishly  ignorant”.

Endnotes:

1 Thomas Jefferson, The Kentucky Resolutions of 1798, 8th Resolution.

2 James Madison, Notes on Nullification (1834). The quote is near the end.  Use “find” function.

3 The deniers seem unaware that The States retained sovereignty in all matters not exclusively delegated to the federal government. Alexander Hamilton says in Federalist No. 32 (2nd para):

“An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention [the Constitution] aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not … EXCLUSIVELY delegated to the United States…” [caps are Hamilton’s; boldface mine]

Federalist No. 62 (5th para):

“…the equal vote allowed to each State [each State gets two U.S. Senators] is …a constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty… [in order to guard] … against an improper consolidation of the States into one simple republic.” (Madison or Hamilton) [boldface mine]

See also Federalist No. 39 (Madison) (6th para, et seq.)

In Madison’s Report on The Virginia Resolutions (1799-1800),  he several times refers, in his discussion of the 3rd Resolution, to the States acting “in their sovereign capacity” when, as “the parties to the constitutional compact” they decide  “in the last resort, whether the compact made by them be violated”:

“…The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition….” [boldface mine]

4 Contrary to the misconstructions long and unlawfully applied by the federal government, the federal Constitution is one of enumerated powers only. E.g.:

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

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

“…It merits particular attention … that the laws of the Confederacy [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)

5   Our Constitution authorizes the federal government to secure our God-given rights in the ways appropriate for the national government of a Federation. The States secure them in other ways.

6 The Kentucky Resolutions of 1798,8th Resolution.

7 Madison’s Notes on Nullification (1834).   The quote is near the end. Use “find” function.

8 This explains the limited “exclusive jurisdiction” of the federal government, and the areas where the federal government and The States have “concurrent jurisdiction”.

9 Teddy Roosevelt ran on the Progressive Platform of 1912.  Both major parties have been dominated by progressives ever since.

10 Hamilton says, respecting the Legislative Branch (Federalist No. 78, 10th para):

“…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” [emphasis mine]

11 The Tariff Act of 1828 was constitutional; but benefited the Northeast at the expense of the South. It thus violated our Founding Principle that governments exist to secure the rights God gave us.  God never gave us the right to be free of competition in business! Since the tariff was constitutional, but unjust, the remedy was to get Congress to fix it.

12 Madison’s Notes on Nullification (1834) are long & rambling. Copy to Word, enlarge the type, & color-code to sort out the strands of arguments. Keep in mind that what Madison is addressing is S. Carolina’s peculiar doctrine where they wanted to nullify a constitutional tariff! PH

January 31, 2013; revised October 23, 2013

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January 31, 2013 Posted by | 10th Amendment, alien and sedition acts, Allen C. Guelzo, David Barton, Heritage Foundation, Interposition, Jarrett Stepman, Jim Crow laws, Kentucky Resolutions of 1798, Madison's Notes on Nullification (1834), Madison's Report on the Virginia Resolutions (1799-1800), Martin Luther King, Matthew Spalding, Nullification, nullification deniers, Progressives, Randy Barnett, Robert A. Levy Cato Institute, South Carolina nullification crisis, Sovereign States, States Retained Powers, Tariff of Abominations, Tarrif Act of 1828, Tenth Amendment, Thomas Jefferson, Virginia Resolutions of 1798 | , , , , , , , , , , , , , , , , , , , , , , , , , , , , | 112 Comments

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

By Publius Huldah

We are Americans. We are resourceful. When doors are slammed in our faces, we find another way.  Since five (5) lawless judges on the U.S. supreme Court betrayed us by failing to declare the Patient Protection and Affordable Care Act (“obamacare”) unconstitutional; since we may be stuck with obama for four more years; 1  and since a democrat-controlled U.S. Senate will not repeal obamacare, we must find another way.

There is another way. Here it is, and it comes from Thomas Jefferson, author of the Declaration of Independence.

Nullification Resolutions for State Legislatures

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

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

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

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

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

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

That nowhere in the Constitution of the United States was any power granted to Congress to make laws respecting the medical care of THE PEOPLE; and that nowhere in the Constitution are powers over this matter prohibited to The States.

4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever.

That administrative rules being promulgated by the Department of Health and Human Services, one of the executive Departments of the federal government, to be set forth in Title 45 of the Code of Federal Regulations, and which pretend to regulate the medical care of THE PEOPLE throughout the several States; are altogether void, and of no force, as in violation of Art. I, Sec.1, of the federal Constitution.

That as matters pertaining to the “medical care”, “health”, and “human services” of THE PEOPLE are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to The States or THE PEOPLE; the federal Department of Health and Human Services is itself an unlawful Department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.

That if the pretended “rules” of this spurious federal Department should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States, THE PEOPLE, the medical profession, and The Churches their own ideas of what others must and must not do in the area of medical care; and may force upon them their own ideas of what medical treatments each person shall be provided or denied.

That this spurious federal Department will further send out swarms of officers to trespass upon hospitals, doctors’ offices, other places of provision of medical care, and premises of religious institutions, to harass providers of medical services, dictate to them as to what specific medical treatments they must provide and are forbidden to provide to their patients.

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

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

5. Resolved, That all aspects of the medical care of THE PEOPLE, not being anywhere delegated to the United States by the Constitution, or prohibited by The Constitution to The States, are reserved to The States respectively, or to THE PEOPLE.  Therefore, power over this matter is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That The Federalist Papers – and not the U.S. supreme Court – is the highest authority and evidence “of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning”. 2 The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) – usurp powers, as they did with their lawless opinion upholding obamacare, they must be impeached and removed from office (Federalist No. 81, 8th para).

9. Resolved, That those within the Legislative, Executive, and Judicial Branches of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain against their unbridled and insatiable lust for power over THE PEOPLE except for The  States.

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

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

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

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

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

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

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

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

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

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

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

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

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

Notes:

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

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

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

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

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

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

But when Congress by means of a law (which is outside the scope of its delegated powers); or the President by means of an executive order (which is outside the scope of his delegated powers); or federal executive departments by means of administrative rules (which they are altogether prohibited by Art. I, Sec. 1 from making); or the supreme Court by means of opinions which contradict Our Constitution; purport to require THE STATES  or THE PEOPLE and THE CHURCHES to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States.

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

Endnotes:

1 We can get rid of him earlier if we send enough people to Congress in 2014 with the spine to impeach & convict him and Biden. The Federalist Papers (cited above) are clear that Presidents should be impeached & removed for usurpations of power.

2 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia  (Thomas Jefferson & James Madison were present) where they voted to make The Federalist Papers one of the texts books for the Law School:

“Resolved that it is the opinion of this board that as to … the distinctive principles of the government of our own state, and of that of the US. the best guides are to be found in 1. the Declaration of Independance, as the fundamental act of union of these states. 2. the book known by the title of `The Federalist’, being an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning. 3. the Resolutions of the General assembly of Virginia in 1799. on the subject of the Alien and Sedition laws, which appeared to accord with the predominant sense of the people of the US. 4. the Valedictory address of President Washington, as conveying political lessons of peculiar value. and that in the branch of the school of Law, which is to treat on the subject of Civil polity, these shall be used as the text and documents of the school.” [pages 82-83, boldface added]. PH

November 13, 2012

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November 13, 2012 Posted by | 10th Amendment, Department of Health and Human Services, Health Care, Kentucky Resolutions of 1798, Nullification, obamacare, Patient Protection and Affordable Care Act, Rulemaking by Executive Agencies, Tennessee Constitution, Thomas Jefferson, Usurpations of power | , , , , , , , , , , , , , , , | 43 Comments

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