The “Convention of States” Scam, the War over the Constitution, and how the States Sold the Reserved Powers to the Feds.
By Publius Huldah
Our Constitution is a glorious document. This one page chart depicts the Structure of the federal government we created when we ratified our Constitution; and lists the “limited & enumerated powers” we delegated to the federal government over the Country at Large.
In a nutshell, our Constitution authorizes the federal government to handle the following objects for the Country at Large:
- Military defense, international commerce & relations;
- Control immigration & naturalization of new citizens;
- Domestically, to create a uniform commercial system: weights & measures, patents & copyrights, money based on gold & silver, bankruptcy laws, mail delivery & some road building; and
- With some of the amendments, secure certain civil rights.
Basically, that’s it. As stated in the 10th Amendment, all others powers are reserved by the States or The People.
But for 100 years, almost everyone in our Country has ignored our Constitution. Thus, instead of restricting spending to the enumerated objects of its powers, the people WE send to Congress spend money on what anybody wants – and so gave us a debt of $17 trillion. Instead of restricting lawmaking to the enumerated objects of its powers, the people WE send to Congress make laws on whatever they like. The President WE elected tramples all over the Constitution; and due to the connivance, cowardice, and ignorance of Congress, the supreme Court, State governments, and the American People, is seizing totalitarian power.
WE are in terrible trouble.
And it is the phony right wing which is seducing the American People into taking the final jump off the cliff.
“We all know that our government is way off track. The debt is astronomical and is going to cripple not only our own freedom and our own economy, but our children and our grandchildren are going to be effectively slaves, paying for all the things that we’re spending money on today.”
That part of his video is true.
But the purpose of their spiels is to make you believe they are on your side. You must look behind the spiels and think carefully about what they are proposing as “solutions”. Much is at stake:
THIS IS THE WAR over our Constitution and Country. And here are the two sides:
Learn & Enforce our Existing Constitution!
One side proposes that we learn & enforce our existing Constitution of limited & enumerated powers. We show that our Framers advised us to enforce our Constitution by (1) electing better representatives to annul the acts of the usurpers, 2 or by (2) nullification of unconstitutional acts.
To illustrate: What would our Country’s financial condition be if WE THE PEOPLE had enforced the enumerated powers on Congress?
It is the enumerated powers which list the objects on which Congress may appropriate funds:
- immigration office (Art. I, §8, cl.4)
- mint (Art. I, §8, cl. 5)
- Attorney General (Art. I, §8, cl. 6)
- post offices & post roads (Art. I, §8, cl. 7)
- patent & copyright office (Art. I, §8, cl. 8)
- federal courts (Art. I, §8, cl. 9)
- military (Art. I, §8, cls. 11-16)
- the civil list (Art. I, §6, cl.1)
- [and other objects listed in various other articles, sections, &clauses]
Do you get the idea? The Constitution itemizes what Congress is permitted to spend money on. See also the two geographical areas over which Congress was delegated “general legislative powers”: Art. I, §8, next to last clause, & Art. IV, §3, cl. 2.
The reason we have a debt of $17 trillion is because everyone ignored the Constitution; so Congress spent money on objects outside the scope of its enumerated powers.
Amend Away our Existing Constitution?
But the Randy Barnett 3/ Rob Natelson/ Michael Farris/ Mark Levin camp want a “convention” so they can gut our existing Constitution by amending out the limited & enumerated powers with new amendments which grant general powers to the federal government; or they seek to re-write the Constitution altogether.
Here are illustrations of how the limited & enumerated powers can be amended out of our Constitution:
It has already been shown how the so-called balanced budget amendment would transform our Constitution from one of enumerated spending powers to one of general spending powers, where spending would be limited only by the amount of revenue the federal government generates or a certain percentage of the GDP. 4 But under our existing Constitution, the federal government’s expenditures are limited by the constitutional grants of authority – the enumerated powers. The problem is everyone ignores the enumerated powers – they never even bothered to learn what they are!
Here is another illustration: Michael Farris, the grand master of The Spiel, has managed to convince many parents that the only way to protect their parental rights is an amendment to the Constitution which delegates to the federal and State governments constitutional power over their children!
And Mark Levin’s suggested amendments would gut our Constitution. Most increase the powers of the federal government by making constitutional what is now unconstitutional because it is not an enumerated power. The amendments pertaining to “overrides” undermine the Constitution as the objective standard of what is lawful and what is not – and substitute majority vote therefor. These “overrides” would erase the Constitution and replace it with majority (mob) rule.
Or is “re-writing the Constitution” their actual goal?
Farris says in the video:
“…sometimes what you need is not a change of personnel, you need a change of structure. The Founders understood the importance of structure…”
Does that give you cold chills?
How does Farris seek to change the structure?
Please – all of you – look at this one page chart which depicts The Structure of the federal government our Framers gave us: What needs changing? Isn’t enforcement what we need?
Jordan Sillars, Communications Director for Farris’ Convention of States Project, let the cat out of the bag:
On September 15, 2013, a discussion on my Face Book page was started about Mark Levin’s clamoring for a “convention of states”.
On or before September 19, Jordon Sillars posted a comment wherein he said:
“… 3. I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution…” [boldface mine].
On September 19 at 1:20 p.m., I responded:
“So, this really is about “re-writing the Constitution”, isn’t it?
And could you name these individuals who are “morally and intellectually capable of re-writing the Constitution”?”
Sillars thereafter deleted his comments, but not before I obtained a screen shot of his quoted comment which you can see here.
Why did he delete his comments?
Now let’s look more at what Farris says in his video:
The False Statements & Silly Arguments of the Proponents of a “convention of States”
1. After his introduction about the $17 trillion debt, Farris goes on to say:
“The States have the power under Article V to call a convention of the States for the purpose of proposing amendments to the Constitution…”
His statement is false.
The Truth is the States have no authority to call the convention. That power is delegated to Congress. Article V says:
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments…” [emphasis mine]
Congress calls it. Not the States.
Furthermore, Dr. Edwin Vieira has pointed out:
‘The language “shall call a Convention for proposing Amendments” sets out a constitution duty in Congress. It embraces a constitutional power as well. That brings into play Article I, Section 8, Clause 18, which delegates to Congress the power “[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers [that is, in Article I, Section 8, Clauses 1 through 17], and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”. The power to “call a Convention for proposing Amendments” is one of those “all other Powers”. Therefore, pursuant to that power, Congress may enact whatever “Law[ ] which shall be necessary and proper for carrying into Execution the * * * Power [to call a Convention]’.
So! Since Article V vests in Congress the power to call the convention; and since Article I, §8, last clause, vests in Congress the power to make all laws necessary & proper to execute its delegated powers; 5 Congress would be within its constitutional authority to organize the Convention anyway it wants, and to appoint whomsoever it wishes as delegates. 6
Now look at this: The chart on Article V shows that James Madison, Father of our Constitution, remarked on the vagueness of the term, “call a Convention for the purpose”:
“How was a Convention to be formed? – by what rule decide? – what the force of its acts?” (Sep. 10); and “difficulties might arise as to the form, the quorum, &c., which in constitutional regulations ought to be as much as possible avoided” (Sep. 15, 1787).
Phyllis Schlafly also raised Twenty Questions about a Constitutional Convention.
Congress, pursuant to Article V and Article I, §8, last clause, has the constitutional power to answer all these questions by means of a law.
Folks! The Farris/Natelson/ Levin camp is not telling you the truth when they say the States decide these issues!
2. Farris then says in his video:
“…in Article V of the Constitution [the Founding Fathers] gave us the solution…”
“…they gave the power to the States to create a new set of rules when the federal government overstepped its boundaries. We can recalibrate the rules to take power away from Washington D.C. and give it back to the people and to the States.”
His statements are both false and silly.
Here is the false part of what he said:
It was not the consensus at the Federal Convention of 1787 that the purpose of Article V was so States could make amendments to the Constitution in order to take power away from a federal government which had usurped power by violating the Constitution.
This chart shows what happened at the Federal Convention of 1787 re development of Article V.
Two delegates (Randolph & Mason, who didn’t sign the Constitution) supported the notion that amendments might be used if the national government should become oppressive. And they didn’t want Congress to have any power over amendment procedures. Their view was the minority view.
Other delegates (Gov. Morris, Hamilton & Madison) thought Congress ought to be able to propose amendments. One delegate (Mr. Gerry) worried about States obtaining a convention and binding the Union to innovations which subverted State Constitutions. Hamilton spoke of amendments to correct defects which would probably appear in the Constitution.
So the final version of Article V provides two methods of proposing amendments to the Constitution. Congress either:
- Proposes the amendments; or
- “Calls” a convention when the Legislatures of 2/3 of the States apply for it. [Now see Art. I, §8, last clause.]
Now for the silly parts of what Farris said (and there are two silly parts):
3. Farris tells us the solution to a federal government which “overstep[s] its boundaries” [violates the Constitution] is to amend the Constitution.
He proposes “to take power away from Washington D.C.” [power the federal government has usurped] by “recalibrate[ing] the rules”.
In other words, the solution to a federal government which violates the Constitution is to amend the Constitution.
Do you see how silly this is?
4. Farris and his camp also imply that the States are victims of federal tyranny, and are the virtuous & wise ones who can fix our Country if they can just get a convention to propose amendments.
But the States are the ones who sold you out to the federal government in the first place! I’ll show you:
The 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”.
What happened to these reserved powers?
The States sold them to the federal government.
Let’s use education as an illustration of how the States sold to the federal government your reserved power to educate your own children in the way you see fit.
The Creator God who, as recognized by our Declaration of Independence, endowed us with unalienable rights; assigned to parents the responsibility to provide for the education & moral instruction of their children: Proverbs 1:8-9, 6:20-21, 13:1, 22:6 & 23:19-22; Genesis 18:19; Deuteronomy 4:9-10 & 6:1-7; Ephesians 6:1-4; 2 Timothy 1:5 & 3:15-17.
Is “education” one of the enumerated powers delegated to the federal government for the Country at large? No. So the federal government has no constitutional authority to get involved. Accordingly, all acts of Congress pertaining to education for the Country at Large, the federal Department of Education, and all their rules & programs are unconstitutional as outside the scope of powers delegated to the federal government.
So why does the federal government dictate all things respecting education?
Because your States sold your God-given responsibility to educate your own children – and your reserved power to do so – to the federal government. This has been going on for a long time; but most recently your State sold you out for federal grants with the federal government’s “race to the top” and “common core” schemes. 7
You have to be ignorant, unthinking, & gullible – a greenhorn – to believe that The States are the men in the white hats who can fix all this with a convention to propose amendments.
The federal government is not the problem – it is the result of our own ignorance, pride and folly.
WE THE PEOPLE, who are “the natural guardians of the Constitution” (Federalist No. 16, next to last para) didn’t trouble ourselves to learn the enumerated powers of Congress and the President. Do you know them?
I ask my Readers who have been supporting the “convention of States” scheme: Have you studied our Founding Principles set forth in The Declaration of Independence? Have you studied the text of the Constitution so that you know what it says?
If not, how are you qualified to know how to “fix” a Constitution you never learned?
Are you willing to stake your lives & liberties, and those of your progeny, on whether those in the Barnett/Natelson/Farris/ Levin camp (1) know what they are talking about, and (2) are telling the truth?
Why? Because you like them? Because they provide a scapegoat which permits you to blame-shift? And you think you can “get even”?
Wise voices in this Country are warning you about the scam. Foremost among them is Phyllis Schlafly, who has been warning of this danger for decades. Yet, such is the ignorant conceit of the greenhorns that they sneer at those who are warning them.
I trust you now see the connection between the moral corruption of a People and tyranny.
1 Use your own head! Do not be manipulated by other peoples’ choice of words. Rob Natelson formerly referred to what he wants as a “constitutional convention”. Now, he calls it a “Convention of the States” – that is the term his cohorts & minions now use. Why did they change what they called it?
2 But our elections are no longer honest. The States took federal grant money to buy voting machines which can be rigged.
3 Randy Barnett’s “Bill of Federalism” is ten proposed amendments which would transform our Constitution from one of enumerated powers to one of general & unlimited powers. Mark Levin’s proposed amendments are similar to Barnett’s.
4 The GDP is computed by an agency in the Executive Branch. So under the BBA, spending would be limited by numbers under the control of the federal government: By how much they tax you; or by a number (GDP) the Executive Branch computes. You think that is a fine idea?
5 The Federalist Papers tell us what the “necessary & proper” clause (Art. I, §8, last clause) means: The clause delegates to Congress power to pass all laws necessary & proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary & proper for the execution of that power (Federalist No. 33, 4th para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (Federalist No. 33, 2nd para); and thus the clause is “perfectly harmless”, a tautology or redundancy. (Federalist No. 33, 4th para). See also Federalist No. 44, 10th -17th paras. In other words, the clause permits the execution of powers already declared and granted.
Do not be misled by Rob Natelson’s post on the “necessary & proper” clause! Why did Natelson ignore what The Federalist Papers say about this clause? Why did he fabricate the song & dance set forth in his post?
6 Think this through also: Even if Congress, as a matter of grace, permitted the States to appoint delegates, how would delegates from your State be chosen? Who controls your State? Would the powers in your State choose you? Or do you believe Michael Farris would choose the leaders?
7 This happened in your State because The People in your State elected to State government people who sold you out. See this website on federal grants: http://www.ffis.org/database You think your State Legislators, who have been gobbling up all the federal grant money they can get, will fix our Country at a “convention” to propose amendments? PH.
By Publius Huldah
This is The Age of Ignorance. Our “intellectuals” can’t think. Our “scholars” parrot each other. The self-educated 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 Barnett, David 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.
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 Well: Randy 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 Well: Madison 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.
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.
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.
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”.
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
The Proposed Tennessee Resolutions of 2012
PLEASE NOTE: I have revised these model resolutions. The revised version is better organized and reads better. You can find the revised resolutions by clicking on the following hyperlink:
Do use the revised model for your study, instead of the one below.
The revised version – which you can find at the link – sets forth in a nutshell all one needs for a basic understanding of our Constitution – and how the supreme Court destroyed it.
As always, feel free to post your questions. PH
Proposed by Publius Huldah.
1. Resolved, That the States composing the United States of America are not united on the principle of unlimited submission to the federal government; but that, with the Constitution for the United States, they established a federal government for limited purposes only. That they delegated to this federal government only limited and enumerated powers; and reserved, each State to itself, all remaining powers, along with the right to their own self-government.
That whenever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force.
That to these Principles, each State agreed as a State, and as the Parties to the Constitution.
That the federal government is not a party to the Constitution, but is merely the creature of the Constitution; and as the mere creature, was not made the exclusive or final judge of the extent of the powers delegated to it; since that would have made the creature’s will, and not the Constitution, the measure of its powers. That as in all other cases of compact among powers having no common judge, each State has an equal right to judge for itself as to whether the creature has committed infractions, and as to the mode and measure of redress.
2. Resolved, That Art. I, Sec. 2, of the Constitution of The State of Tennessee acknowledges the Principle that the doctrine of nonresistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
3. Resolved, That the Constitution of the United States ordained and established a Federation of Sovereign States which united only for THE LIMITED PURPOSES enumerated in the Constitution: national defense, international commerce and relations; and domestically the creation of an uniform commercial system: Weights & measures, patents & copyrights, a monetary system based on gold & silver, bankruptcy laws, and mail delivery. That the 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 agriculture, farming operations, labor and employment, or children and families; and that nowhere in the Constitution are powers over these matters prohibited to the States. These matters are altogether outside the scope of powers delegated to the federal government. Therefore, power over these matters is reserved solely and exclusively to the respective States and THE PEOPLE, each within its or their own territory.
4. Resolved, That Art. I, Sec. 1 of the Constitution of the United States provides that all legislative Powers granted by that Constitution are vested in CONGRESS; therefore, Departments within the Executive Branch are forbidden to make any “rules” or “laws” of general application whatsoever. That administrative rules promulgated by the Department of Labor, one of the Executive Departments of the federal government, set forth at 29 CFR Part 570, and which pretend to regulate child labor throughout the several States; are altogether void, and of no force, as in violation of Art. I, Sec. 1, of the federal Constitution.
5. Resolved, That child laborers, including agricultural workers and children who work on family and other farms, are under the jurisdiction and protection of the Constitution and laws of the State wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual States. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”; the rules of the federal Department of Labor set forth at 29 CFR Part 570, which assume powers not delegated by the federal Constitution over child laborers, including agricultural workers and children who work on family and other farms, is not “law”, but is altogether void, and of no force.
6. Resolved, That since children and their parents or employers are under the protection of the State Constitution and laws of the State where they are; in cases of any violations of the Laws of such State, they are entitled to have their cases handled by the duly convened Courts of such State. That transferring power of defining, prosecuting, and judging any such violations from the three branches of the State Governments to bureaucrats within one of the federal executive departments, is altogether unlawful and an intolerable usurpation of power.
7. Resolved, That the misconstructions long and unlawfully applied by the federal government to the so-called “taxing”, “general welfare”, “interstate commerce”, and “necessary and proper” clauses, to the effect that these clauses bestow unlimited powers on the federal government, goes to the destruction of all limits prescribed to their powers by the federal Constitution. That the true and genuine meaning of those clauses is as follows:
a) The “taxing” and “general welfare” clauses: Art. I, Sec. 8, cl.1, employs “general terms” which are “immediately” followed by the “enumeration of particular powers” which “explain and qualify”, by a “recital of particulars”, the general terms. It is “error” to focus on the “general expressions” and disregard “the specifications which ascertain and limit their import”; thus, to argue that the general expression provides “an unlimited power” is “an absurdity” (Federalist Paper No. 41, last 4 paras).
The federal Constitution declares that “the power of Congress…shall extend to certain enumerated cases. This specification of particulars…excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended…” (Federalist No. 83, 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.
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”. The supreme Court is merely a creature of the Constitution and is completely subject to its terms; and when judges on that and lower federal courts – who serve during “good Behaviour” only (Art. III, Sec. 1, cl. 1) – usurp powers, they must be impeached and removed from office (Federalist No. 81, 8th para).
8. Resolved, That to take from the States all the powers of self-government and to transfer all powers to a general and consolidated national government, in defiance of the Constitution which was ordained and established by THE PEOPLE, is not for the peace, happiness or prosperity of THE PEOPLE.
Therefore this State is determined to refuse to submit to undelegated powers exercised over them by the federal government; and rejects altogether the notion that the federal government may exercise unlimited powers over them.
That in cases of an abuse of the delegated (enumerated) powers, the members of the federal government, being chosen by the people, a change by the people would be the constitutional remedy.
But, where powers are usurped which have not been delegated to the federal government – when the federal government acts outside of, and in defiance of, the federal Constitution by exercising powers not delegated to it by that Constitution; then a nullification of the unlawful act is the rightful remedy.
Thus every State has a natural right – which pre-dates & pre-exists the federal Constitution – to nullify of their own authority all such lawless assumptions of power within the boundaries of their State. That without this pre-existing natural and original right, they would be under the dominion, absolute and unlimited, of whoever in the federal government chooses to exercise tyrannical powers over them.
The States alone are The Parties to the compact; and thus are solely authorized to judge in the last resort of the powers exercised under it. Congress, the Executive Branch, and the Judicial Branch are not parties to the contract; but are merely the creatures of the compact (Federalist No. 33, 5th para). As mere creatures, they may exercise no powers other than those enumerated powers specifically delegated to them.
9. Resolved, That matters pertaining to “labor”, “employment”, “farms”, “children” and their employers or parents, are nowhere delegated to the federal government by the federal Constitution; but are among the countless multitudes of matters reserved to the States or THE PEOPLE.
Therefore, the federal Department of Labor is itself an unlawful department, and its mere existence an affront to the Constitution; and all of the powers it exercises are usurped powers as outside the scope of the powers delegated to the federal government by our Constitution.
That if the pretended “rules” of this spurious federal Department of Labor should stand, these conclusions would flow from them; that unelected bureaucrats within the Executive Branch of the federal government may force upon The States and THE PEOPLE their own ideas of what children and their employers or parents may and may not do; that they may place any act they think proper on a list of prohibited activities, that they will send out swarms of officers to trespass upon private farms and places of business, to harass employers, children and their parents; and then prosecute and punish violations of their pretended “rules” in their own pretended “administrative courts” with their own pretended “administrative judges”.
That the federal departments within the Executive Branch of the federal government have established a pattern of unlawfully functioning as legislators, when they write “agency rules”; as executives, when they investigate and prosecute violations of “agency rules”; and as judges and juries when they decide whether violations of their “agency rules” have occurred. Thus the Executive Branch unlawfully functions as legislator, accuser, judge & jury, in violation of the Constitution and of the Principles of Separation of Power and of Checks and Balances.
To this abomination is added the additional affront that the objects of these pretended “rules” are altogether outside the scope of the enumerated powers delegated to the federal government in our Constitution.
That in this way, those within the Executive Branch of the federal government are sweeping away all the barriers of our Constitution; and that no ramparts now remain between their unbridled and insatiable lust for power over THE PEOPLE except for the several States.
10. Resolved, That if the States do not now resist all such blatantly unlawful usurpations of power, THE PEOPLE of their States will be delivered into abject slavery subject to the unbridled control of whosoever occupies the office of President. Our Representatives in Congress have shirked their constitutional obligation to support the Constitution (Art. VI, cl. 3), by acquiescing in the blatant usurpations by the Executive Branch; and have failed in their duty to impeach and remove those within the Executive Branch who usurp powers (Federalist No. 66, 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 their 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 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…”
11. Resolved, That because men may not be trusted with power, the federal Constitution fixed the limits to which, and no further, the federal government may go. Would we be wise if we permit the federal government to destroy the limits the Constitution places upon its powers? Would we be wise if we permit unelected bureaucrats in the Executive Departments of the federal government to regulate every aspect of our lives?
That if those who administer the federal government be permitted to transgress the limits fixed by the federal Constitution, by disregarding the limits on its powers set forth therein, then annihilation of the State Governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence.
That the several States, being sovereign and independent, have the unquestionable right to judge of infractions to the federal Constitution; and that nullification by those sovereign States of all unauthorized acts of the federal government is the rightful remedy.
THEREFORE, this State, recurring to its natural rights in matters outside the scope of the powers delegated to the federal government, declares these acts void, and of no force, and will take measures of its own for providing that neither these acts, nor any others of the federal government not plainly and intentionally authorized by the Constitution, shalt be exercised within this State.
1. The above is patterned on the relevant portions of The Kentucky Resolutions of 1798, written by Thomas Jefferson in response to the alien and sedition acts passed by Congress which purported to grant to the President tyrannical powers with respect to aliens & “seditious” words.
2. These proposed Resolutions focus on administrative “rules” made by a Department within the Executive Branch of the federal government. This Model may be easily adapted to address acts of Congress which are outside the scope of its enumerated powers; Executive Orders which are outside the scope of the President’s enumerated powers; and supreme Court opinions which exceed their enumerated powersand disregard the federal Constitution, such as their lawless rulings banning public expressions of the Faith of Our Fathers and misapplying Sec. 1 of the 14th Amendment in order to undermine the morals of the People and to destroy the residuary sovereignity of The States.
3. Several attorneys, historians, and others who claim special knowledge on this subject have asserted that States have no right to nullify anything the federal government does; that the States and The People must submit to the federal government no matter what it does; that only the federal government may question the federal government; thatthe federal government created by the Constitution is the exclusive and final judge of the extent of the powers delegated to it; and the opinion of five supreme Court judges, not the Constitution, is the sole measure of its powers.
Such people may not understand the distinction between abuses of delegated powers (e.g., unwise bankruptcy laws – Art. I, Sec. 8, cl. 4), for which election of better Representatives is the answer; and usurpations of powers which have not been delegated and are thus outside the lawful reach of the federal government (e.g., obamacare), for which nullification is the proper answer. When any branch of the federal government steps outside of the Constitution to make laws or “rules” or issue “opinions” which exceed their delegated powers; the States must resort to those original rights which pre-date & pre-exist Our Constitution to nullify such usurpations by the federal government of undelegated powers.
Such people also do not seem to understand our Founding Principles: Our Declaration of Independence says:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. – That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, – That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …” (2nd para)
In that one paragraph, we learn the five foundational principles of our Constitutional Republic:
- Our Rights are unalienableand come from God;
- The purpose of civil government is to protect our God-given Rights;
- Civil government gets its powers from THE PEOPLE;
- Civil government is legitimate only when it stays within the powers WE delegated to it; and
- When civil government becomes destructive of the purposes for which WE created it, WE may throw it off.
The Constitution is the formal expression of our Consent for the federal government to exist; and it is our formal statement of which specific powers WE agreed to delegate to the three branches of that government. Look atthe opening words:
“WE THE PEOPLE … do ordain and establish this Constitution for the United States of America.”
The federal government operates with our consent only when it restricts itself to the powers WE delegated to it – when it obeys the Constitution. When it exercises usurped powers which have not been delegated to it, it becomes illegitimate.
When the federal government loses its legitimacy – as it now has – it is the sworn duty of the States, pursuant to Art. VI, cl. 3, of our Constitution, to resist.
4. Others who claim special knowledge on this subject insist that a single State may not nullify any act of the federal government; that only a majority of the States acting in concert may do so.
But they overlook the nature of the laws protested in the Kentucky & Virginia Resolutions. Those Resolutions addressed laws made by Congress which purported to grant to the President certain dictatorial powers and jurisdiction over “aliens” and “seditious words”. The States have no means of stopping the President from enforcing such laws since the President has the raw power to send out armed thugs to arrest people by night; and then to prosecute, convict, & execute them in secret tribunals and chambers. The States may object – but they can’t stop it. The supreme Court may denounce it, but can’t stop it. Only Congress can put an end to it by impeaching & removing such a usurping President (Federalist No. 66, 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 to do something, or stop doing something, then of course THE STATES – on an individual basis – have both the POWER and the DUTY (imposed by their Art. VI, cl. 3 Oaths of Office) to nullify such usurpatious acts within the boundaries of their States. The proper battle cry in such events is, “Not in my state!”
Do you see? PH
Posted March 13, 2012
Postscript Added March 15, 2012:
The federal government is not God. It is merely our “creature”. We The People created the federal government when We ordained and established Our Constitution. And when We enumerated the powers We delegated to each branch of the federal government, We told the federal government what We were giving it permission to do.
But we have now come to believe that the federal government may do whatever it wants; and we must obey it. And because we have believed this for so long, a totalitarian fascist dictatorship is right now being imposed on us.
So what should we do? Revolution and bloodshed? No! There is a better way, and our Framers show us: On behalf of The People of their States, The State Legislatures must now resort to that original right of self-defense which pre-exists & pre-dates The Constitution; and must nullify those acts of the federal government which are outside the scope of the powers We delegated to it in Our Constitution.
The Model Resolutions set forth the Authorities on which they are based, so that State Legislators may propose them in their State Legislatures with complete confidence that Our Framers “have their backs”. PH