WHEN may courts lawfully strike down, under the “supremacy clause”, State laws and provisions in State Constitutions?
By Publius Huldah
The courts have lawful authority under the supremacy clause of the federal Constitution (Art. VI, clause 2) to overturn SOME Amendments to State Constitutions and SOME State laws.
It depends on whether the State provision conflicts with the federal Constitution, or with an Act of Congress which is authorized by the Constitution, or with a Treaty which is authorized by the Constitution.
For example: Say a State law says you have to be 45 years old to run for President. That would conflict with Art. II, Sec. 1, clause 5, US Constitution, which establishes 35 years as the minimum age requirement. State laws can’t contradict the Constitution. So a court could properly strike down the State law which says Presidents must be at least 45 years old.
Do you see? The State Law, or State Constitutional provision, or State judicial opinion must CONTRADICT something in the federal Constitution, or Acts of Congress authorized by the Constitution, or Treaties authorized by the Constitution – before it may lawfully be struck down under the supremacy clause.
THE REASON AMERICANS HAVE SUCH DIFFICULTY UNDERSTANDING THIS IS BECAUSE THEY HAVE NOT GRASPED THE SIMPLE CONCEPT THAT OUR FEDERAL CONSTITUTION CREATED A NATIONAL GOVERNMENT OF “ENUMERATED POWERS” ONLY.
When acts of the national government are authorized by the Constitution, States can not lawfully contradict such acts.
But when acts of the national government are not authorized by the Constitution, then State legislators, officials and judges are obliged by their Oaths of Office to SPIT ON UNCONSTITUTIONAL ACTS OF THE NATIONAL GOVERNMENT.
The KEY QUESTION IS ALWAYS – ALWAYS – ALWAYS – ALWAYS: What provision in the federal Constitution authorizes the national government to act on the issue in question?
Now I ask all of you a question: Can you cite Article, Section, and clause of the federal Constitution which authorizes the national government to meddle in “abortion”, “homosexuality”, or “marriage” over the Country at Large?
Can’t find it? What does that tell you? It should tell you that the national government has no authority to meddle in these three areas. My paper on marriage explained this very clearly, I thought……
So when the national government has no constitutional authority to meddle in an area, they may not lawfully strike down State provisions on these areas. When they do so anyway, the States and The People must man-up and resist!
But when the national government has constitutional authority to act in an area, then any State Constitutional provision or State statute in contradiction thereto can properly be struck down under the supremacy clause.
Americans have totally failed to understand that the list of areas in which the national government has constitutional authority to act is…… A VERY SHORT LIST. The list is so short that you all ought to have the list in your heads. Check it out HERE.
By Publius Huldah
Art.VI, clause 2 says:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”
That tells us:
1. Only THREE things are eligible to comprise the “supreme Law of the Land”: The Constitution, Acts of Congress, and Treaties. Supreme Court opinions are not included! Supreme Court opinions aren’t even “law” [contrary to what lawyers were told in law school] – they are merely opinions on the law suits or proceedings before the court.
2. Furthermore, Acts of Congress must be made pursuant to Authority granted to Congress by the Constitution before they qualify as part of the “supreme Law”. If Acts of Congress are not authorized by the Constitution, the acts are mere usurpations and must be treated as such. See: https://publiushuldah.wordpress.com/…/nullification-smacki…/
3. Treaties must likewise be made under the Authority of the United States before they qualify as part of the “supreme Law”. From where do the President and the Senate obtain their Authority? From the Constitution. The Constitution must specifically authorize the national government to act in an area before they may lawfully make a treaty addressing the object. The national government may not circumvent the limitations imposed by the enumerated powers to do by treaty what they may not lawfully do pursuant to the enumerated powers. E.g., our Constitution does not delegate to the national government authority to restrict our arms, ammunition, regulate firearms dealers, do background checks, etc. The national government may not lawfully circumvent this restriction by means of a treaty wherein the signatory governments agree to disarm their Citizens or Subjects. https://publiushuldah.wordpress.com/…/treaty-making-powers…/
The Supreme Court’s opinion in the homosexual marriage cases was a grotesque usurpation of powers not delegated. https://publiushuldah.wordpress.com/…/searching-for-marria…/ And the opinion of these FIVE (5) morally degenerate lawyers is not “law” in any sense of the word. Only Congress is authorized to make “law” (Art. I, Sec. 1).
So County Clerk Kim Davis is a Heroine of the Republic for standing up to Tyranny. Like Rosa Parks.
By Publius Huldah.
The English Puritans who came here in the 1630s knew that the Old Testament has a great deal to say about civil government. And they came to build that shining city on a hill.
They did not come here to escape from the World, to wait for the end of the World, and to surrender it to evil.
And so – we became a shining city on a hill. The fundamental act of our Founding, the Declaration of Independence, recognizes the Creator God as the Source of Rights;1 and acknowledges that the purpose of civil government is simply to “secure” the Rights God gave us. The Constitution we subsequently ratified was based on God’s model of civil government as set forth in the Bible.
That is why our Country was so much better than what the rest of the World has been. For the most part, we followed God’s model for civil government; other countries didn’t.
The blessing which flows from God’s model is limited civil government which is under The Law. That is why our Liberty Bell quotes Lev. 25:10 – “Proclaim LIBERTY throughout all the Land unto all the Inhabitants thereof.”
In this paper, I will show you Six Principles which come from the Bible and how our Framers applied them. In a future paper, I will show you Six Biblical Principles Thomas Jefferson listed in the Declaration of Independence, and how those Principles are also incorporated into our Constitution.
1. The Civil Authorities are under the Law.
The Bible: God is The Lawmaker – the kings are to apply God’s Law. 2
- Deut. 17:18-20: The king is to write out a copy of God’s Law. He is to have it by him and read from it all his life so that he may keep, observe, and apply it.
- 1 Kings 2:1-4: King David on his deathbed tells Solomon he must conform to God’s ways, and observe his statutes, commandments and judgments, as written in the Law of Moses.
The parallel in our Constitution is that the Constitution is the Supreme Law which the civil authorities are to obey.
Noah Webster’s 1828 American Dictionary defines “constitution”:
“…In free states, the constitution is paramount to the statutes or laws enacted by the legislature, limiting and controlling its power; and in the United States, the legislature is created, and its powers designated, by the constitution.” [boldface added]
Our Constitution is the Standard by which the validity of all Acts of Congress, all acts of the Executive Branch, all judicial opinions, and all Treaties is measured and judged (Art. VI, cl. 2).
Do you see? Law comes from a higher source than the civil authorities. The “Rule of Law” prevails when the civil authorities obey that higher Law – be it God’s Law or our Constitution.
Tyrants, on the other hand, claim that they are the source of law. The Roman Caesars, Stalin, Hitler, the dictator of N. Korea and Obama all claim that their will is “law”. Consider Obama’s usurpatious executive orders and rules made by his executive agencies. This is the “Rule of Man” – when the civil authorities deny they are subject to a higher law (be it God’s Law or the Constitution), and hold that their will is “law”.
2. Civil Government has only limited and defined Powers:
The Bible: When you read through the Old Testament, you see that civil government is limited to:
- Military matters
- Enforcement of only a few of God’s Laws – the laws to which a penalty for violation is attached (laws against murder, theft, bearing false witness, negligence, etc.).
- Judges are available to decide disputes between the people.
Most of God’s Laws are a matter of individual and family self-government (e.g., charity, family welfare, education, don’t drink too much, work hard).
The parallel in our Constitution is that it is one of enumerated powers only:
- Congress’ Enumerated Powers are listed and explained here.
- The President’s Enumerated Powers are listed and explained here.
- The Judicial Branch’s enumerated powers are listed and explained here.
All other powers (except those listed at Art. I, §10) are retained by the States or the People. “Self-government” means that as individuals, we govern ourselves in accordance with the laws of God [or the “Natural Law”]. It doesn’t mean that we elect representatives to manage our lives for us!
Tyrants claim the power to do whatever they want.
3. Civil Government is divided into Three Parts:
The Bible: Isaiah 33:22 says The Lord is our “judge”, “lawgiver”, and “king”!
The parallel in our Constitution is that the federal government is divided into three branches: Judicial, legislative, and executive.
No human can be trusted with all three functions, so our Constitution separates them into three branches, with each branch having checks on the powers of the other branches.
Tyrants seek to exercise all three functions. Obama is making Congress irrelevant: When they refuse to pass a law he wants, he implements it by “executive order” or “agency regulation”. He’s making the judicial branch irrelevant by ignoring their decisions which go against his will.
4. The Civil Authorities promise to obey the Higher Law.
The Bible: The king promises to obey God’s Laws and to apply God’s Laws in the kingdom; and the people pledge themselves to this promise:
- King Josiah’s covenant at 2 Kings 23:1-3: King Josiah called all the people together and in their presence, read aloud to them the Book of the Law which had been found in the temple. Then King Josiah entered into a covenant with God that he would obey him and keep his commandments and statutes as written in the Book of the Law. And all the People pledged themselves to this covenant.
- Joash’s (via the priest Jehoiada) covenant at 2 Kings 11:17 and 2 Chron 23:16.
- David’s covenant at 2 Sam 5:1-4 and 1 Chron 11:1-3.
Our Constitutional Oaths of Office:
- Art. II, Sec. 1, last clause: The President promises to “preserve, protect and defend the Constitution”.
- Art. VI, last clause: All other federal and State officers and judges promise to “support” the Constitution.
5. When the Civil Authorities violate the Higher Law, We must Rebuke them!
The Bible: The prophets rebuke the kings when they forsake God’s Law:
- Samuel rebuked King Saul (1 Samuel 13:10-14)
- Nathan rebuked King David (2 Samuel 12)
- A Man of God rebuked King Jeroboam (1 Kings 13)
- Elijah rebuked King Ahab (1 Kings 16:29 – 1 Kings 17:2; 1 Kings 18:16-20; 1 Kings 21:17-29)
- Elijah rebuked King Ahaziah (2 Kings 1:1-18)
- Elisha rebuked Jehoram, King of Israel (2 Kings 3:1-14)
- The prophets warned of the pending destruction of Jerusalem because of the sins of King Manasseh (2 Kings 21:10-16)
- The book of Micah.
- John The Baptist rebuked Herod.
The Black Robed Regiment of Our Revolution: Some 237 years ago, our pastors were leaders in bringing about our Revolution. They understood that the English king and Parliament were imposing tyranny on us in violation of God’s Law.
In the Declaration of Independence, we rebuked the British Crown when we itemized our grievances and recited how we had petitioned for redress and had warned that if they didn’t stop the usurpations, we would separate from them.
But today, we don’t have enough clergy with the knowledge and the spine to rebuke the federal government. Many don’t know what the Bible says about civil government,3 and they don’t know our Founding Principles and documents. Too many of our clergy just want to escape or withdraw from the World, avoid controversy, and preserve their 501 (c) (3) tax exemption.
The Catholic Priests are speaking out about being forced to provide contraception and abortion pills as violations of their religious freedom. But they should be denouncing the HHS rules as unconstitutional exercises of undelegated powers.
Their goal should not be to carve out an exemption for themselves from rules they don’t agree with; but to enforce The Constitution for everyone.
“Rebuke” does not consist in saying, “I don’t agree” or “It violates my beliefs.”
A proper rebuke points out the Higher Law being violated, and demands compliance with that Higher Law – not with one’s personal views.
Because the Priests have focused on their religious beliefs, instead of on biblical/constitutional principles; the discussion in the media has been about the percentage of Catholics who use birth control – the implication being that since most Catholics use it, the Priests are out of touch.
But if the Priests would say:
- Obamacare is unconstitutional as outside the scope of the powers delegated to Congress – the medical care of the People not being one of the enumerated powers; and
- The HHS rules are unconstitutional as outside the scope of the powers granted to the Executive Branch, and as in violation of Art. I, § 1 which provides that only Congress may make laws; 4
Then, they would make a proper Rebuke. And the discussion would be where it should be: on the enumerated powers of Congress and the unconstitutionality of rule-making by executive agencies.
So! The purposes of Rebuke are to Warn and Teach:
- To warn the civil authorities of their violations of the Higher Law, and
- To educate the civil authorities and The People about the Higher Law.
The Constitution is a theological document! It is the job of our clergy – Catholic, Protestant and Jewish – to know this. And to defend God’s Word as expressed in our Constitution. God requires our clergy to take an active role in protecting the People from a civil government which violates the Higher Law – be it God’s Law or our Constitution which is based on God’s Law.
We The People must also rebuke the federal government when they violate our Constitution. We do it by posting on line, talking to friends, family, and everyone else within our spheres of influence. Stick to Principles – avoid personal opinions. Cite the provision of our Constitution they violated; or as is usually the case, show that what they have done is not an enumerated power. When they have town hall meetings, rebuke them there. Watch this magnificent woman and see how it is done!
6. The Peoples’ Obligation to obey the Civil Authorities is conditional upon the Civil Authorities obeying the Higher Law.
The Bible: As shown by the Scripture at Principle 4, civil government is a covenant between God, the king, and the People. God makes the Laws; the king promises to obey and apply those Laws; and the people pledge themselves to the Covenant.
Out of this relationship between God, the king and the people, arises the peoples’ obligation to protest lawlessness on the part of the king. If they don’t protest, God punishes the people because of the misdeeds of their kings – the people will suffer if they go along with the unlawful acts:
- God sent a 3 year famine because Saul put the Gibeonites to death (2 Sam 21).
- God sent a pestilence which killed 70,000 Israelites because David took the census (1 Chron 21 & 2 Sam 24).
- God (via Elijah) sent a famine because Ahab & his house forsook the commandments of the Lord (1 Kings 16:29-33, 17:1, 18:1, 18:17-19).
- God struck a heavy blow at Joram’s people because of Joram’s wickedness (2 Chron 21:1-14).
- God visited 4 dooms upon Jerusalem & the Southern Kingdom because of the sins of Manasseh (2 Kings 21:10-17 & Jer 15:3-4).
The parallel in our Constitution is this: When Congress makes a law which is outside the scope of its enumerated powers, it is no “law” at all, but is void; and we have no obligation to comply. Alexander Hamilton says this over and over in The Federalist Papers. Here are a few examples:
“…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…” (Federalist No. 33, 5th para). [boldface added]
“…acts of … [the federal government] which are NOT PURSUANT to its constitutional powers … will [not] become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such…” (Federalist No. 33, 6th para). [boldface added]
“…every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act …contrary to the Constitution can be valid. To deny this, would be to affirm … that men … may do not only what their powers do not authorize, but what they forbid.” (Federalist No. 78, 10th para). [boldface added]
Hamilton also tells us that Congress can’t usurp powers unless the People go along with it! In Federalist No.16 (next to last para), he points out that because judges may be “embarked in a conspiracy with the legislature”, the People, who are “the natural guardians of the Constitution”, must be “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”
So! Hamilton applies the Biblical model of what WE are supposed to do when the federal government acts outside of the Constitution. We are to recognize that their acts are “void”, and We are to take whatever prudent measures are necessary to enforce the Constitution.
What can We do?
Hamilton tells you to LEARN the Constitution; demand that federal and State officials obey it; and don’t go along with them when they violate it!
READ our Declaration of Independence and Constitution until you become familiar with them. Stick to original sources (e.g., The Federalist Papers) and beware of the ignorant know-it-alls with their crazy theories.
REBUKE officials and judges who violate the Constitution! Specify the violation. Usually, the violation is that what they did is not an enumerated power.
ELECT State & County officials who will nullify unconstitutional acts of Congress, executive orders, & judicial opinions. Here are Model Nullification Resolutions for State Legislatures.
TALK to your pastor, priest or rabbi – we all share the Old Testament. We must dust off our copies and read them; renounce escapism & defeat; renounce the unbiblical doctrine of socialism (listen to Fr. Andrew!); renounce the unbiblical doctrine of divine right of kings – the false doctrine that God granted autonomy to the civil authorities; declare independence from the federal government and throw off the chains of the 501 (c) (3) tax exemption! Start being the Salt & Light we are called to be – the Watchmen on the Wall. PH.
1 Here are express references to God in our Declaration of Independence:
- …The Laws of Nature and of Nature’s God…
- …endowed by their Creator with certain unalienable Rights…
- …appealing to the Supreme Judge of the world for the rectitude of our intentions…
- …with a firm reliance on the protection of divine Providence…
Our Constitution at Art. VII, last clause:
- …in the Year of our Lord one thousand seven hundred and Eighty seven…
2 “Lex, Rex” – the Law is above the king! Not “Rex, Lex”.
3 Romans 13 must be read in pari materia with everything the Bible says about civil government! The false doctrine of “divine right of kings” is based on ignoring the numerous Old Testament provisions addressing civil government. Romans 13 actually says that the civil authorities are God’s ministers and agents, and if we are “good” we have no cause to fear them; but if we do “evil” we do have cause to fear them.
So! When reading Romans 13, Titus 3:1 & 1 Peter 2:13-14, we must keep in mind that it is God who decides what is “good” and what is “evil”. God never gave civil authorities the power to define “good” and “evil”; and God never gave them autonomy. Bad theology is, and has long been, the cause of much evil. And Pride keeps it going.
4 Article I, §1 says:
“All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
Only elected Senators (Art. I, §3, cl. 1) & popularly elected Representatives (Art. I, §2, cl. 1) may exercise legislative powers. Our Constitution doesn’t permit unelected bureaucrats to make laws. Federal judges have disgraced the Bench by permitting rule-making by executive agencies. PH.
June 23, 2012
By Publius Huldah.
In response to a recent article in the National Review by Allen C. Guelzo, a nullification denier and history professor at Gettysburg College, and two responding letters to the Editor,1 one “Celticreeler” posted an astute rebuttal you can read here.
The issue in the National Review article and letters is this: Guelzo denies that States have any right to nullify unconstitutional laws made by Congress. He looks at Art. VI, clause 2, U.S. Constitution (the “supremacy clause”) which reads,
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land… [emphasis added]
and concludes that any law made by Congress is the “supreme” law of the land; and everyone must obey, unless & until five (5) judges on the supreme Court say they don’t have to. He claims that only judges have authority to nullify unconstitutional acts of Congress.
In her rebuttal, Celticreeler correctly points out that the phrase, “in Pursuance thereof”, “limit[s] the federal government’s supremacy to laws that were made pursuant to the Constitution…”
She also reprints Guelzo’s reply to her letter to the Editor. And what he says in his reply is so at odds with the words of our Framers, that I am compelled to respond.
We will look at four Founding Principles which Guelzo rejects and reverses.
1. What does “In Pursuance thereof” Really Mean?
Guelzo says in his reply,
“In pursuance thereof ” was intended only to recognize that, at the time of the Constitution’s adoption, no body of legislation had yet been made under the Constitution…
What? He presents no proof – though he does throw in the factoid that “The supremacy clause was written by an anti-Federalist, Luther Martin, whom we might presume to have entertained a few anxieties about an overmighty federal government”.
Actually, Luther Martin said the clause he proposed was “very materially different from the [supremacy clause] clause adopted by the Constitution” 2; but I will not quibble.
In any event, it is The Federalist Papers which are authoritative as to the genuine meaning of the Constitution 3 – not speeches of delegates to the Federal Convention (thou they can shed light). And this is what The Federalist Papers say about Art. VI, clause 2, and “in Pursuance thereof”:
In Federalist No. 33 (6th para), Alexander Hamilton says:
…But it will not follow …that acts of the large society [the federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [the States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such… [T]he clause which declares the supremacy of the laws of the Union … EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION … [capitals are Hamilton’s]
In the next para, Hamilton says that a law made by Congress which is not authorized by the Constitution,
…would not be the supreme law of the land, but a usurpation of power not granted by the Constitution…. [boldface mine]
In Federalist No. 27 (last para), Hamilton 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; other emphasis mine]
And in Federalist No. 78 (10th para), Hamilton says:
…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]
Do you see? Federalist No. 33, 27, & 78 are clear: Acts of Congress which are not authorized by the Constitution are “void” – they are “mere usurpations and deserve to be treated as such”. They are not made “in Pursuance” of the Constitution and have “supremacy” over nothing. 4
2. Who is Supposed to Look to the U.S. Constitution for Permission: The Federal Government, the Member States, or the People?
Guelzo says (in his reply):
If the Founders had wanted to grant nullifying power-to the states or any other body-they would have had more than sufficient opportunity to include it in the Constitution. [boldface added]
Guelzo thus asserts that the States [i.e., the Members of the Federation] don’t have any powers unless “the Founders” said they could have them and wrote it into The Constitution! He demands that the States look to the Constitution to see what they are permitted to do! According to Guelzo, if the Constitution doesn’t give States permission, they can’t do it.
Guelzo has it backwards – our Founding Documents refute his words. The second paragraph of The Declaration of Independence says that Rights come from God and to secure these rights, 5
Governments are instituted among Men, deriving their just powers from the consent of the governed, –
So, governments have only those powers “the governed” permit them to have! In our Constitution, WE THE PEOPLE, acting through our Representative States, decided what powers WE would delegate to the federal government.
Accordingly, WE THE PEOPLE created the federal government when WE, acting through our States, ordained & established the Constitution for the United States of America. In the Constitution, WE itemized the powers WE granted to each branch of the federal government. No Branch of the federal government may lawfully do ANYTHING unless WE authorized it in the Constitution. WE are the Creators; those in the federal government, are merely our “creatures”. In Federalist No. 33 (5th para), Hamilton calls the federal government our “creature”; and points out that it is up to THE PEOPLE to smackdown the federal government when it “overpass[es] the just bounds of its authority and make[s] a tyrannical use of its powers”. 6
In Federalist No. 32 (2nd para), Hamilton says,
…the State governments …clearly retain all the rights of sovereignty which they before had, and which were not… EXCLUSIVELY delegated to the United States. This exclusive delegation …of State sovereignty would only exist in three cases… [caps are Hamilton’s, boldface mine]
The Tenth 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. [emphasis added]
Do you see? Guelzo reverses & perverts the whole point of Our Declaration of Independence, Our Revolution, & Our Constitution.
It is each of the three branches of the federal government (Legislative, Executive, & Judicial) who must look to the Constitution to see what powers WE THE PEOPLE, acting through our States, allowed them to have. All other powers are reserved to The States or The People.
3. Who Has Authority to Nullify Unconstitutional Laws Made by Congress?
Guelzo says, respecting the power to nullify a law made by Congress,
…That determination lies in the hands of the courts, under the principle of judicial review laid down in McCulloch v. Maryland in 1819…
McCulloch v. Maryland? In McCulloch v. Maryland, the supreme Court decided [wrongly] that Congress has power under various of the enumerated powers listed at Art. I, Sec. 8, clauses 1-16, and the “necessary & proper clause” (Art. I, Sec. 8, last clause) to incorporate a national bank. That case is not about “judicial review”.
And in the Constitution, WE did not delegate EXCLUSIVE authority to federal judges to nullify unconstitutional laws! Furthermore, the Oaths of Office at Art. VI, cl. 3 & Art. II, Sec. 1, last clause, impose on all who take them an obligation to uphold the Constitution against usurpations by the federal government. Thus, nullification is both a Power retained by the States & The People as well as an Obligation imposed by Oath.
And REMEMBER! Our Rights pre-date & pre-exist The Constitution. Thus, nullification of usurped powers is a natural right – it is the remedy against insupportable oppression by the federal government. 7
4. In Our American System, WE Do Not Take Oaths To Obey Persons, Institutions, Or Judges.
I have proved elsewhere that nullification of unconstitutional laws, executive orders, supreme Court opinions and treaties is required by the Constitutional Oaths of office. That Oath requires that all who take it swear or affirm that they will support the Constitution. In our American system, we do not take Oaths to obey persons, institutions, or courts. Here are two papers explaining the legal & moral imperatives of nullification: Why States Must Nullify Unconstitutional Acts of Congress: Instructions from Hamilton, Madison, & Jefferson and The Oath Of Office: The Check On Usurpations By Congress, The Executive Branch, & Federal Judges 8
Guelzo’s Statist Vision.
Guelzo’s vision is this: Every law made by Congress [the Legislative Branch of the federal government] is “supreme”; and the Member States & WE THE PEOPLE must obey, unless & until five (5) judges on the supreme Court [the Judicial Branch of the federal government] say the law is unconstitutional. In other words, Guelzo holds that only the federal government may question the federal government.
His words are poison. Under his vision, 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 judges, not the Constitution, is the sole measure of its powers. It is an evil ideology. And, as I have proved herein, it is antithetical to our Founding Documents and Principles. 9 PH
1 Celticreeler states that Guelzo’s original article appeared in the February 21, 2011 issue of National Review. In response, she submitted a letter to the Editor, and Guelzo replied. Celticreeler reprints Guelzo’s reply in her linked rebuttal. Guelzo’s original article is available to subscribers only.
2 You can read Martin’s actual comments (March 19, 1788) here: Luther Martin’s Reply to the Landholder.1
3 The Federalist Papers were written during 1787-88 to explain the proposed Constitution to The People and to induce them (through their States) to ratify it. For this reason, The Federalist Papers are authoritative on the genuine meaning of the Constitution. And at a meeting attended by Thomas Jefferson & James Madison of the Board of Visitors of the University of Virginia on March 4, 1825, the following resolution selecting texts for the Law school was passed:
…on 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…. (page 83) [emphasis added]
Someone! Show Professor Guelzo the on-line edition of The Federalist Papers so he can learn the genuine meaning of the Constitution! Salvage the minds of the young people who the administration of Gettysburg College places in Guelzo’s care.
4 Using The Federalist Papers as Proof, I explain the “Supremacy Clause” here: The Arizona Illegal Alien Law & The Supremacy Clause of the U.S. Constitution: Exclusive & Concurrent Jurisdiction Explained. Guelzo mentions “preemption” [it does sounds “grand, doesn’t it?]; but in this paper I explain the interplay between constitutional federal & Reserved State powers.
5 It is impossible to understand The Constitution without acknowledging the Principle set forth in Our Declaration of Independence that that our Rights are granted to us by The Creator God; they thus pre-exist & pre-date The Constitution, and are unalienable by man. WE do not look to The Constitution for our Rights! I explain our Rights here.
6 Here are Hamilton’s actual words:
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. (Federalist No. 33, 5th para) [emphasis added]
7 In his writings on Nullification, our beloved Thomas Jefferson distinguishes between [mere] “abuses of delegated powers” and the assumption of powers “which have not been delegated”:
…in cases of an abuse of the delegated powers, the members of the General [federal] Government, being chosen by the people, a change by the people would be the constitutional remedy; 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 added]
I.e., if Congress merely abuses a delegated power [e.g., makes silly bankruptcy laws (Art. I, Sec. 8, cl. 4)], then the proper remedy is to vote the Representatives out of office and replace them with sensible ones who will repeal the silly bankruptcy laws.
But if Congress assumes a power which has not been delegated to it – e.g., control of the Peoples’ medical care – then each State has a natural right to nullify it within their own borders. It is outside the compact the States made with each other – the States and the People never gave their “creature” (the federal government) power over their medical care! Without Nullification, the States and the People would be under the absolute & unlimited control of the federal government.
8 Remember! We expect the lowest-ranking soldier to refuse to obey an unlawful order even when given by a commissioned officer. See “A Duty to Disobey: The Forgotten Lessons of My Lai“, by military lawyer Robert S. Rivkin. And do not forget the Nuremberg trials – defendants claimed they were “just following orders”. The Court properly rejected that defense.
Do we ask less of ourselves and our State & federal officials than we do of 18 year-old soldiers when we are confronted with unconstitutional acts of the federal government? The three branches of the federal government have connived against us – THE PEOPLE. So smack them down! Can we live up to our Framers’ expectations as set forth throughout The Federalist Papers? See also, What Should States Do When the Federal Government Usurps Power? for advice from James Madison.
9 Does Professor Guelzo understands the poisonous import of his words? Or did he uncritically accept, and does he unthinkingly recite, what he has been told? What he says is the prevailing dogma of our time – most lawyers believe it because it is what they were told in law school. Theirs’ are minds which have never been trained to think, and they are ignorant of the concept of “objective meaning”. I address the problem of inability to think and our moral & intellectual corruption here: How Progressive Education & Bad Philosophy Corrupted The People & Undermined The U.S. Constitution PH.
April 17, 2011
God’s Gift of Unalienable Rights & Article VI of the Constitution: The Sword & Shield to stop the islamization of America.
By Publius Huldah.
This is an encouraging paper, because it explains the moral and constitutional justifications to stop the islamization of our country.
We face a grave threat – the Muslims are infiltrating our country and taking over. We seem powerless to resist: Our governments won’t acknowledge the threat; we are told Muslims have “constitutional rights” to come here, proselytize everywhere, build mosques, and implement shariah in their communities and in the public square; and our governments are letting them do it.
The Muslims seek to replace our Constitution with shariah – their totalitarian political, economic, military, social & legal system – with the goal of incorporating our Country into a global Islamic caliphate.
They are making progress in islamicizing our Country because we are not resisting.
And the dreadful message we are getting from all sources is that our Constitution renders us powerless to resist islamization.
But read on, and I will show you how our Constitution & Declaration of Independence – properly understood – actually give our federal, State & local governments justification and authority to stop the islamization of our Country. Once we understand two things, it becomes clear what we may – and must – do:
One: Islam is not a “religion” in the sense we understand religion. Islam is about TOTAL POWER. It is a system which controls every aspect of the lives of those who have the misfortune to be subjected to it. It masquerades as a religion, but once we understand that it is just another totalitarian system – like soviet communism, we can deal with it and defeat it.
Once in place, Islam is enforced with stone-age barbarism. It masquerades as a religion to recruit gullible fools who become suicide bombers, and to provide “cover” for officials in the Western countries who, indoctrinated with the Lies of multiculturalism & political correctness, look for an excuse to do nothing.
Two: We must understand Our Founding Principles – these are our Sword & Shield – that (1) Rights come from God alone, (2) Muslims do not have the right to divest us of our Rights, and (3) the purpose of civil government is to secure the Rights God gave us.
Now let us learn more of our Sword and Shield.
1. Let us first consider Our Rights. What are our rights, and where do they come from? The Constitution? The First Ten Amendments? NO! The Declaration of Independence says:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – that to secure these rights, Governments are instituted among Men, …
Those words are golden: Our Rights come from God Who Created the Universe; and the purpose of civil government is to secure the Rights GOD gave us.
God gave us many Rights: Life! Liberty! Pursuit of Happiness!
To work and enjoy the fruits of our own labors. To earn, inherit and keep private property.
To demand that the civil authorities obey the Law – and to hold them accountable when they don’t.
To have a civil government which protects our God given rights, protects us from invasion and criminals, but gives fair trials to accused persons.
Equal treatment under the law: Courts are not to favor the rich, or the poor, or males or females.
God means for us to enjoy life! Healthy food, wine and strong drink (in moderation); attractive dress for women, the marriage relation between man & woman, prosperity, and liberty!
As long as we obey the criminal laws (don’t murder, steal, bear false witness, and the like), we have the right to be left alone.
Liberty is the rule in God’s Model for civil government. That is why our Liberty Bell quotes Leviticus 25:10 – “Proclaim LIBERTY throughout all the Land unto all the Inhabitants thereof.”
2. Do Muslims respect the rights God gave us?
Life? Theirs is a culture of death: murder, honor killings & suicide bombers.
Liberty? Theirs is a culture where women are slaves and prisoners, little girls toys for old men, and conversion to Christianity a capital offense.
Pursuit of Happiness? Theirs is a culture of torture & sadism. Young Muslim girls in America who talked to non-Muslim boys were shot to death by their father in the back seat of his taxicab. Wife-beating is commonplace. Women who don’t cover their hair are lashed. Women are mutilated and maimed on the faces and even in their private places.
Freedom of Speech? Theirs is a culture where criticizing Islam leads to a terrible death.
You can go down the list: For every Right God gave us, the Muslims take it away.
Let’s look at just one God-given right – the Right to a fair trial:
Bearing false witness is condemned (The Ten Commandments); the evidence of two or more witnesses is required to prove a case (Deut 19:15 & Matthew 18:16); public trials are required (Exodus 18:13); & judges are required to be fair, impartial, & without favoritism. (Deut. 1:16-17).
Do Muslims respect this God-given right to a fair trial? NO! In Iran, judges in “morals” cases (adultery) are allowed to make their own subjective determinations that a person is guilty even in the absence of any EVIDENCE!
Do Muslims have the “right” to impose in this Country a shariah system which takes away the rights GOD gave us? No! God did not give Muslims the “right” to take away from us, the rights He gave us!
3. We are told Muslims have a “First Amendment right” to build mosques, proselytize, and implement shariah here. But is that what the First Amendment says? No! Let’s read it:
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 doesn’t grant any rights to anybody! All it does is prohibit CONGRESS from making laws about religion, speech, the press, or assembly!
So Muslims do not have a “First Amendment right” to build mosques, proselytize, and implement shariah here.
4. Not only do Muslims claim the “right” to impose shariah in the Muslim communities springing up throughout our Country, they also claim the “right” to impose shariah law in the public square: They demand shariah compliant financial institutions, foot baths in public places, that wine, sausages, and the like be banned from their presence, that they be allowed to shut down public streets for “prayers”, etc.
Do Muslims have the “right” to apply their law here? No! Art. VI, clause 2 of Our Constitution says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
OUR Constitution and laws authorized by OUR Constitution are the supreme law of this land – and anything to the contrary must fall. It violates Our Constitution for Muslims to practice shariah here! Muslims who thus seek to overthrow Our Constitution and replace it with shariah are guilty of criminal sedition. The federal government has the duty to prosecute them for sedition – or deport them.
5. Can the federal or state or local governments properly extend to Muslims a “right” to build mosques & proselytize here? No! Because The Declaration of Independence says the purpose of civil government is to secure the rights God gave us. Muslims seek to take away our God-given Rights. Civil government is supposed to protect us from those who seek to divest us of our Rights.
We must insist that our federal, State, and local governments STOP the islamization of Our Country. We must insist that they live up to the one legitimate purpose of civil government: to protect our GOD-given rights.
6. WE are a Christian Country based on Judeo – Christian principles. Our Constitution is not a suicide pact. It does not require us to permit Muslims to take Our Country over and destroy Our principles and impose their barbaric totalitarian system on us.
The Declaration of Independence recognizes God as Creator, supreme Judge and Regulator of the World, and as our Divine Protector.
Article VII of Our Constitution, just above the signatures, recognizes the Lordship of Jesus Christ. It says,
Done in Convention by the Unanimous Consent of the States present the Seventeenth Day of September in the Year of our Lord one thousand seven hundred and Eighty seven …
7. So! Let us summarize the above three Principles:
(1) Our Rights come from God – they predate & preexist the Constitution. Our Constitution doesn’t give “rights” to anybody. So Muslims don’t have “constitutional rights” to come here, build mosques, proselytize, and impose shariah.
(2) All the Evidence shows that Muslims take away from People the Rights God gave them. Since Our Declaration of Independence acknowledges that the purpose of civil governments is to secure the Rights GOD gave us, it is the duty and responsibility of civil governments at all levels to protect us from islamization.
(3) Article VI, clause 2, U.S. Constitution – the “Supremacy clause” – makes it unconstitutional for Muslims to practice shariah law ANYWHERE in Our Country.
8. The Center for Security Policy recently issued a scholarly (but readable) report: “Shariah: The Threat to America”. Important suggested policy changes are listed on pages 141-144. Tell your tea party groups! Take delegations to your local, state, and federal representatives and tell them about it. Most of them are weak & ignorant, so you must educate them and demand that they do their job and defend your community from islamization.
9. Dutch Member of Parliament Geert Wilders lists ten steps western countries must take to stop the islamization of their countries. All ten steps are mandated by our Declaration of Independence, and consistent with our Constitution:
(1) Stop cultural relativism: We must formalize the Idea that we have one dominant culture that is based on Judaism & Christianity [Wilders adds “humanism”].
(2) Stop pretending that Islam is a religion.
(3) Show the true face of fundamentalist Islam. It is a brutal totalitarian ideology.
(4) Stop all immigration from Muslim countries. For Muslims who are already citizens, tell them that if they adhere to our values and our Constitution, they may stay as equals. But if they deviate, we will expel them.
(5) Outlaw shariah and deport practitioners.
(6) Require Muslims to sign legally binding pledge of integration and allegiance.
(7) Stop building mosques.
(8) Seek reciprocity with Saudi Arabia for western churches & synagogues.
(9) Close all Islamic schools – they are fascist institutions teaching hate.
(10) Remove our current weak leaders.
It is time to boldly stand up for Our God, OUR Declaration of Independence, and Our Constitution, and say, “No!” to those who are taking over Our Country. It is time to use Our God-given unalienable Rights and Our Constitution as the Sword & Shield they are meant to be. We can and must use these to defeat Islamization. PH
September 19, 2010
Post Script added July 22, 2011
Watch Melanie Phillips explain how the abandonment of the concepts of Objective Truth and the embracing of moral relativism & multiculturalism is permitting the islamization of England:
By Publius Huldah.
If Obama signs a “global warming” treaty at the United Nations’ “Climate Change” Conference in Copenhagen this December 2009; and if the U.S. Senate ratifies it, will it become part of the “supreme Law of the Land”?
We hear it said that whenever the President signs, and the Senate ratifies, a Treaty, it becomes part of “the supreme Law of the Land”. But is that true? Not necessarily! Walk with me, and I will show you how to think through this question, and how to analyze other constitutional questions which come your way.
You must always ask: Is this authorized in the Constitution? Where in the Constitution? And precisely what is authorized by the Constitution? Let us start at the beginning:
1. Does the federal government have authority to make treaties? Can treaties be about any subject? Or, are the proper objects of treaties limited by The Constitution?
Article II, §2, cl. 2, U.S. Constitution, says the President:
… shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two-thirds of the Senators present concur…
Article VI, cl. 2 says:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. [emphasis added]
Thus, we see that the federal government is authorized to make treaties. Now, we must find out whether there are limitations on this treaty making power.
2. It is a classic rule of construction (rules for understanding the objective meaning of writings) that one must give effect to every word and phrase. The clause does not say, “Treaties made by the United States are part of the supreme Law of the Land”. Instead, it says Treaties made under the Authority of the United States, are part of the supreme Law of the Land.
So we see right away that a Treaty is part of the supreme Law of the Land only if it is made “under the Authority of the United States”.
3. From where do the President and the Senate get Authority to act? From The Constitution! The objects of their lawful powers are enumerated in the Constitution. Thus, the President and Senate must be authorized in the Constitution to act on a subject before any Treaty made by them on that subject qualifies as part of “the supreme Law of the Land”.
If the Constitution does not authorize the President or Congress to act on a subject, any Treaty on such subject would not be “Law” – it would be a mere usurpation, and would deserve to be treated as such (Federalist No. 33, 6th para). Because the Constitution is “fundamental” law (Federalist No. 78, 10th &11th paras), it is The Standard by which the legitimacy of all presidential acts, all acts of Congress, all treaties, & all judicial decisions is measured. (Federalist No. 78, 9th para).
4. In Federalist Paper No. 44 (7th para from end), James Madison says that [absent the “supremacy clause” at Art. VI, cl.2] a federal treaty which violates a State constitution would have no effect in that State:
…as the constitutions of the States differ much from each other, it might happen that a treaty or national law of great and equal importance to the States would interfere with some and not with other constitutions and would consequently be valid in some of the States at the same time that it would have no effect in others. [emphasis added]
Madison thus illustrates the Principle that a treaty which interferes with the Constitution has no effect. I found no other discussion in The Federalist Papers on this point. So, let us turn to Thomas Jefferson, who says: 1
In giving to the President and Senate a power to make treaties, the Constitution meant only to authorize them to carry into effect, by way of treaty, any powers they might constitutionally exercise. –Thomas Jefferson: The Anas, 1793. ME 1:408 [emphasis added]
Surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way. –Thomas Jefferson: Parliamentary Manual, 1800. ME 2:442 [emphasis added]
According to the rule established by usage and common sense, of construing one part of the instrument by another, the objects on which the President and Senate may exclusively act by treaty are much reduced, but the field on which they may act with the sanction of the Legislature is large enough; and I see no harm in rendering their sanction necessary, and not much harm in annihilating the whole treaty-making power, except as to making peace. –Thomas Jefferson to James Madison, 1796. ME 9:330 [emphasis added]
5. So! We see from the above that the treaty making power of the United States is very limited. What, then, are the proper objects of treaties? To find the answer, we must go to The Constitution to see what it authorizes the President and the Congress to do. The Constitution delegates to Congress powers “To regulate Commerce with foreign Nations…and with the Indian Tribes” (Art I, §8, cl. 3); and “To declare War…and make Rules concerning Captures on Land and Water” (Art I, §8, cl. 11). The Constitution authorizes the President to “…appoint Ambassadors, other public Ministers and Consuls…” (Art II, § 2, cl. 2).
The Federalist Papers discuss the treaty making power of the United States. John Jay says treaties relate to “war, peace, and to commerce” and to the promotion of “trade and navigation” (Federalist No. 64, 3rd & 6th paras). Madison says treaties also relate to sending and receiving ambassadors and consuls and to commerce. (Federalist No. 42, 1st & 3rd paras).
In addition, Art I, §8, cl. 8, authorizes Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”. Thus, The United States could properly enter into treaties respecting patents and copyrights.
6. Now, let us consider the proposed “climate change” treaty. There is a draft agreement which, during December 2009, is to be put into final form, and signed in Copenhagen. If signed by Obama and ratified by the Senate, would it become part of “the supreme Law of the Land”?
To answer that Question, we must first ask: Does The Constitution authorize Congress to make laws about the objects of the proposed “climate change” treaty? One wants to see the actual text, but it appears that the gist of the scheme is for the governments of the “rich” nations to reduce the “greenhouse gas emissions” within their borders and to send money to the “poor” nations to bribe them to sign the treaty and to compensate them for our “past emissions”. There also seem to be provisions for entrepreneurs like AlGore to sell “carbon offset credits” or “emission reduction units” to those who emit more than “their share” of “greenhouse emissions”. [By the way, from where does AlGore get them to sell?]
And just what, pray, are “greenhouse emissions”? Primarily, carbon dioxide, methane, and water vapor. Carbon dioxide: the gas which humans and other animals exhale, and which plants must have for photosynthesis [sounds like a good system to me]. Methane: The gas which animals belch. All very easy to control: Kill most of the people and most of the animals! Shut down our remaining industries. Stop the cars. Turn off the electricity. Cut off supplies of propane. Prohibit the burning of wood. And water vapor! Oh! We must stop poisoning the world with Water!
So! The Questions are these: Does The Constitution grant to Congress the power to make laws respecting the reduction of carbon dioxide, methane, water vapor, etc. “emissions”? Is transferring wealth from Americans to “poor” nations to compensate them for our “past emissions”, one of the enumerated powers of Congress? Does The Constitution grant to the Executive Branch jurisdiction over carbon dioxide, methane, and water vapor?
The answer is NO! Accordingly, if the Senate were to ratify the “climate change” treaty, the treaty would NOT become part of “the supreme Law of this Land”, because it would not have been made under the Authority of the United States. It would be a mere usurpation and would deserve to be treated as such.
Do not forget: The federal government may not lawfully circumvent the U.S. Constitution by international treaties. It may NOT do by Treaty what it is not permitted to do by the U.S. Constitution.
7. Finally: While obama may sign a “climate change” treaty in Copenhagen, ratification requires two thirds of the Senators present (Art. II, §2, cl.2). Are we such a corrupt people that we elected 67 U.S. Senators who will vote to ratify the Treaty? But even if 67 faithless Senators vote to ratify it, then we may take heart from the words of James Madison in Federalist No. 44 (16th para):
… in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers…
and Alexander Hamilton in Federalist No. 33 (5th para):
…If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [The Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify….
Read again the foregoing passages! The statists can not enslave us without our acquiescence. For too long, we have blindly accepted whatever we hear others say. Someone on TV says, “If the Senate ratifies this treaty, it will become part of the supreme law of the land!” We are told that “The Rule of Law” requires us to obey every order, law, court opinion, or treaty coming out of the federal government. And not only do we believe such nonsense, we repeat it to others. And thus, we became part of the misinformation dissemination network. In order to restore our constitutional republic with its federal form of government, we must rediscover the lost art & science of Learning, Thinking and Analysis. And then, we must learn to say, “They don’t have authority under The Constitution to do that!” Pay attention to the words of our beloved James Madison and Alexander Hamilton. PH
1 I originally obtained these Jefferson quotes from the University of Virginia webpage on Thomas Jefferson. However, they have since reorganized their Jefferson pages, and no longer list quotes there. I will have to find other online scholarly sources to these quotes. Sorry for the inconvenience.
October 27, 2009; revised July 11, 2012