Read the Commerce Clause in the Light cast by the other Parts of our Constitution

By Publius Huldah

The parts of our federal Constitution are so interrelated that it is impossible to understand a single clause therein without considering all of the other provisions of our Constitution.

Article I, §8, clause 3, US Constitution, states:

“The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;”

The original intent of the power to regulate commerce “among the several States” is proved here: Does the “interstate commerce” clause authorize Congress to force us to buy health insurance? That paper proves that the primary purpose of the power is 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.

But recently, some have asserted that since “foreign Nations”, “the several States”, and “the Indian Tribes” are grouped together in the same clause, it necessarily follows that Congress’ power to “regulate commerce” with each of them is identical. And since Congress has broad powers over foreign commerce, they conclude that Congress has those same broad powers over interstate commerce, and may lawfully, for example, ban the movement of physical goods [such as firearms] across state lines.

So let’s look at that clause in the Light cast by the rest of the Constitution.

Three totally different and separate entities

Three entities are listed in the same clause at Art. I, §8, cl. 3; but we may not properly conclude that the extent and nature of the regulation permitted over the three entities is the same. That’s because each entity has a distinctly different status, and is treated accordingly in the Constitution.

The several States

The States are the sovereign entities which created the federal government when they ratified the Constitution. At Art. I, §10, the States agreed that they would not individually exercise the power to make commercial and trade treaties with foreign Nations; but would exercise that power collectively by delegating to the “creature” of the Constitution – the national government – the power to make such Treaties (Art. II, §2, cl. 2).

The States have a high status: They are The Members of the Federation the States created when they ratified our Constitution. The federal government is merely the “creature” of the constitutional compact the States made with each other when they ratified the Constitution, and is completely subject to its terms.

Foreign Nations

Various provisions are relevant to the power the States delegated to Congress respecting commerce with foreign Nations:

◊ Pursuant to its treaty making power granted at Art. II, §2, cl. 2, the United States may make treaties with foreign nations addressing a great many commercial and trade matters, territorial and fishing waters [our ships won’t fish within X miles of your shoreline, etc.], inspections of products, mutual assistance to merchant ships in distress at sea, assistance to each Party’s sick merchant seamen, etc.

◊ Art. I, §8, cl. 1, grants to Congress the power to levy “Duties, Imposts [tariffs on imports] and Excises”. As they did with the infamous Tariff Act of 1828, Congress has the power to shut down imports from foreign Nations by imposing exorbitant tariffs.

◊ Art. I, §8, cl. 10, grants to Congress power to define Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations. Congress may ban or restrict commerce with foreign nations who fail to rein in their countrymen who are operating pirate ships or violate the Law of Nations.

◊ Art. I, §8, cl. 11, grants to Congress the power to declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water. Congress may restrict or ban commerce with warring foreign nations and their allies, and make rules about seizing their cargo (“bounty”).

◊ Imports and exports are unloaded and loaded at dockyards over which the federal government has (pursuant to Art. I, §8, next to last clause) exclusive legislative authority. Congress may make whatever inspection laws need to be made to protect us from contaminated imports – such as agricultural products infested with bugs or diseases, other contaminated products, etc. ¹

So Congress’ power to “regulate commerce with foreign Nations” is exercised by means of Treaties the United States makes with foreign Nations, and by means of Laws made by Congress. In the course of exercising this delegated power, the Legislative and Executive Branches have broad authority to restrict or ban commerce with foreign Nations, and determine its parameters.

Congress has no such powers over the Member States.²

Indian Tribes

In Federalist No. 24 (10^th & 11^th paras), Hamilton speaks of the necessity of keeping small garrisons on our Western frontier which are necessary to protect “against the ravages and depredations of the Indians”; and that some of these posts (garrisons) “will be keys to the trade with the Indian nations.”

In Federalist No. 42 (11^th para), Madison speaks of the unsettled status of Indians and says this has been a question of frequent perplexity and contention in the federal councils.

 

So! It is a clear misconstruction of Art. I, §8, cl. 3 to assert that Congress has the same power to regulate commerce between the Member States that it does to regulate commerce with foreign Nations and the Indian Tribes.

James Madison’s letter of February 13, 1829 to J.C. Cabell

In Madison’s letter of February 13, 1829 to J.C. Cabell, he warns that the claim that the power to regulate commerce with the three entities is identical, is superficially plausible, but actually wrong.

He then says, as to the power to “regulate Commerce among the States”:

“… it is very certain that it grew out of the abuse* of the power by the importing States, in taxing the non-importing; and was intended as a negative & preventive provision agst. injustice among the States themselves; rather than as a power to be used for the positive purposes of the General Govt. in which alone however the remedial power could be lodged. And it will be safer to leave the power with this key to it, than to extend to it all the qualities & incidental means belonging to the power over foreign commerce…” [italics added]

*see the Federalist No 42.”

So Madison warns that we better stick with the original understanding; and not interpret the clause to mean that the federal government has the same broad power over interstate commerce that it has over commerce with the foreign Nations and with the Indian Tribes.

Endnotes:

¹ The fed gov’t can’t lawfully ban imports of guns and arms because the 2^nd Amendment prohibits the fed gov’t from infringing our right to keep and bear arms. Furthermore, a disarmed citizenry is inconsistent with Congress’ obligation, imposed by Art. I, §8, cls 15 & 16, to provide for the arming and training of the Militia of the several States. To see what it was like when we elected to Congress people who knew and obeyed our Constitution, read the Militia Act of 1792. But until We The People learn our Constitution, we will continue to elect ignoramuses to Congress. We cannot be ignorant and free – and you can’t see that a candidate is ignorant unless you are knowledgeable.

² Domestically, Congress has the power to impose excise taxes on specific articles in commerce. For a discussion of “imposts”, “excises” and the Whiskey Rebellion, see The Plot to Impose a National Sales Tax or Value Added Tax.

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

By Publius Huldah

1. Summary

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

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

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

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

2. The Concept of “Citizenship”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Suffrage is:

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

Citizen is:

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

Franchise is:

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

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

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

5. State Constitutions set forth the Qualifications for Voting

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

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

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

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

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

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

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

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

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

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

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

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

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

Scalia said,

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

and concluded,

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

IF Scalia understood that the NVRA was unconstitutional, it was his DUTY to say so even though Counsel for the State of Arizona apparently failed to raise the issue.

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

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

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

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

Endnotes:

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

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

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

³That Vattel had such influence is proved HERE.

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

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

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

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

⁸Art. I, §8, cl. 4, US Const.

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

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

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

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

 

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

By Publius Huldah

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

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

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

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

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

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

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

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

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

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

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

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

1. Military courts and military lawyers in a nutshell

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

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

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

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

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

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

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

But they would be wrong. In Federalist No. 80, Alexander Hamilton explains the jurisdiction of the courts created by Article III: In the 2^nd, 3^rd, 4^th, and 13^th paragraphs, he shows that the purpose of the language quoted just above is to authorize the Judicial Branch to enforce the Constitution – not re-write it; and to enforce constitutional federal laws – not re-write them.

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

3. Political Questions

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

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

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

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

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

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

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

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

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

5. Conclusion

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

Endnotes:

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

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

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

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

The George Mason Fabrication

By Publius Huldah ¹

Those who have read Article I, §8, clauses 1-16 of our federal Constitution know that it delegates only a handful of powers (over the Country at large) to the federal government.

They also know that, for the last 100 years, the federal government has violated the Constitution by usurping thousands of powers not delegated.

So what do we do about it?

1. The silly answer of the convention lobby

The convention lobby says that when the federal government violates the Constitution, the solution is to amend the Constitution.

Now think about that: When a spouse violates the marriage vows, is the solution is to change the marriage vows? When people ignore speed limits, is the solution to change the speed limits? When people violate the Ten Commandments, is the solution to change the Ten Commandments?

Of course not! The solution is obedience: to the Constitution, the marriage vows, the speed limits, and God.

But the convention lobby’s argument proceeds from silliness to insidiousness: They say that only at an Article V convention can we get the amendments we need.

 2. Why do they want an Article V convention?

Even before the ink was dry on our Constitution of 1787, its enemies wanted to get rid of it:  At the federal convention where it was drafted, George Mason said on Aug. 31, 1787 that

“he would sooner chop off his right hand than put it to the Constitution as it now stands”; and if it weren’t changed to suit his views, he wanted another general convention. ²

Such demands for another convention persisted after our Constitution was ratified (by the ninth State) on June 21, 1788.  James Madison, Alexander Hamilton, and John Jay addressed the demands and warned of the dangers of another convention [link].  They understood that a convention is the vehicle for getting a new Constitution.

Today’s enemies of our Constitution are spending vast sums of money to get an Article V convention  [e.g., link and link and link]. Their hirelings are propagandizing and pushing State Legislators all over our Country to apply to Congress to call a convention.

 

Article V of our Constitution provides two methods of amendment:  Congress:

1. proposes amendments and sends them to the States for ratification; or
2. calls a convention if two thirds of the States apply for it.

Our existing 27 Amendments were obtained under the first method. We’ve never used the convention method because until recently, Americans understood the danger.

James Madison wrote in his Nov. 2, 1788 letter to Turberville [link] that he “trembled” at the prospect of a second convention; and if there were another convention, “the most violent partizans”, and “individuals of insidious views” would strive to be delegates and would have “a dangerous opportunity of sapping the very foundations of the fabric” of our Country. ³

Alexander Hamilton “dreaded” the consequences of another convention because he knew that enemies of our Constitution wanted to get rid of it: Federalist No. 85. ⁴

The same goes for today. If there is an Article V convention, our enemies will have the opportunity to get rid of our existing Constitution and impose a new one. ⁵

Different factions already have new Constitutions in hand or in preparation in anticipation of an Article V convention. ⁶

The Council on Foreign Relations (CFR) seeks to bring about a political integration of Canada, the United States, and Mexico – a Parliament is to be set up over them, and their police and military forces are to be combined!  You can read the CFR’s Task Force Report on the North American Community at their website here.  Because setting up a Parliament over and above the United States and surrendering sovereignty over our military & law enforcement is altogether repugnant to our existing Constitution, they need a new Constitution which transforms the United States from a sovereign nation to a member state of the North American Union. To get this new Constitution, they need an Article V convention.  See, e.g.,  USMCA ‘Trade Agreement,’ the North American Union, an Article V convention, and Red Flag Laws: Connecting the dots [here].

Now that you see what’s behind the push for a convention, let’s address the Convention Lobby’s Revisionist Account of the federal convention of 1787:

3. The Fake Quote

They claim that, at the federal convention of 1787 where our present Constitution was drafted, our Framers gave us the Article V convention as the “solution” to federal usurpations.  Michael Farris wrote: ⁷

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

But Mason didn’t say that. Nor did any other delegates say that or anything to that effect. They weren’t silly men.

4. Our Framers said the purpose of amendments is to remedy defects in the Constitution 

James Madison was a delegate to the federal convention of 1787, and kept a Journal. I went through it, collected every reference to what became Article V, and wrote it up – here it is. Madison’s Journal shows what the Framers really said about the purpose of amendments:

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

♦ Under the Articles of Confederation (Art. XIII) [link], amendments had to be approved by Congress and all of the States.  On June 11, 1787 the Delegates discussed whether the new Constitution should also require Congress’ approval of amendments.  George Mason said, 

The Constitution now being formed “will certainly be defective”, as the Articles of Confederation have been found to be. “Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way … It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent …The opportunity for such an abuse, may be the fault of the Constitution [a defect] calling for amendmt.” [boldface mine]

So Mason’s concern was that Congress might not agree to amendments needed to fix defects.  So he didn’t think the new Constitution should require Congress’ approval of amendments.

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

Other primary source writings of the time show:

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

♦“amendment of errors” and “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)

♦If “… the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates …” (Washington’s Farewell Address, page 19) ⁸

That’s what they really said.

5.  The discussions on how Amendments should be proposed

Now let’s look at the additional words of George Mason’s which the convention lobby has contorted and taken out of context in an attempt to justify their absurd and ruinous claim.

An issue at the convention of 1787 was the manner in which amendments to the new Constitution would be proposed.

Madison wanted Congress to propose all amendments, either on their own initiative or at the request of two thirds of the States.  On Sep. 10, 1787, he proposed this wording for Article V:

“The Legislature of the United States, whenever two-thirds of both houses shall deem necessary, or on the application of two-thirds of the Legislatures of the several States, shall propose amendments to this Constitution …”

Mason objected to Madison’s proposed wording.  On Sep. 15, 1787, Mason said,

“As the proposing of amendments is in both the modes to depend, in the first immediately, and in the second ultimately, on Congress, no amendments of the proper kind, would ever be obtained by the people, if the government should become oppressive, as he verily believed would be the case.”

Now remember! Mason agreed with the other Delegates that the purpose of amendments is to remedy defects in the Constitution.  And his concern (June 11, 1787) was that Congress might not agree to amendments which would be needed to correct defects. ⁹

Neither Mason nor anyone else was so silly as to say that when the federal government violates the constitution, the solution is to amend the Constitution.

6. Why was the convention method added to Article V?

So also on Sept. 15, 1787, Governor Morris and Mr. Gerry moved to amend Article V so as to require a Convention on application of 2/3 of the States.

James Madison and Alexander Hamilton went along with it because they understood that a people have the right to meet in convention and draft a new constitution whether the convention method were in Article V or not.  They knew they couldn’t stop future generations from doing what they themselves had already done twice: Invoking the Right, acknowledged in the 2^nd para of our Declaration of Independence, to throw off one government and set up a new one. They invoked that Right during 1776 to throw off the British Monarchy; and during 1787, they invoked it to throw off the Articles of Confederation – and the government it had created – and set up a new Constitution which created a new government.  In Federalist No. 40 (15^th para), Madison specifically invoked this Right as justification for what they did at the federal “amendments” convention of 1787: They ignored the Resolution of February 21, 1787 of the Continental Congress  [link] which called the convention “for the sole and express purpose of revising the Articles of Confederation”; they ignored the instructions from their States [link] ¹⁰, and they drafted a new Constitution with a new and easier mode of ratification (only 9 States needed to ratify our Constitution of 1787).

So the convention method was added to Article V.  And it provided another way to get amendments. But it also provided a way to get a new Constitution – under the pretext of just getting amendments. ¹¹

7. What’s our real problem? Let’s man-up and address that

Our problem today is not a defective Constitution. Our problem is ignorance, loss of virtue, a willingness to sell our birthright for bowls of porridge from the federal government, refusal to think, and disobedience to our Founding Principles.  Our Framers expected us to be virtuous and informed; and the States to resist federal usurpations. ¹²

State governments could take a giant step in “limiting the power and jurisdiction of the federal government” by not taking federal funds to implement unconstitutional federal programs.

Open your eyes, Americans.  Do not permit the Globalists to complete their coup against us.

Endnotes:

¹ My friend Don Fotheringham and I discussed this issue; this paper reflects his valuable insights. His paper, “Article V is Deliberately Vague”, is HERE.

² Mason didn’t chop off his right hand. He, along with Edmund Randolph and Elbridge Gerry, refused to sign the Constitution: see Madison’s Journal of the Federal Convention for Sep. 17, 1787. Randolph wanted the States to be able to propose amendments to the proposed Constitution, and then all would be submitted to and finally decided on by another general convention: Aug. 31, Sep. 10, and Sep. 15, 1787. Gerry’s objections to the proposed Constitution were such that “the best that could be done…was to provide for a second general Convention”: Sep. 15, 1787.

The federal convention of 1787 was called “for the sole and express purpose of revising the Articles of Confederation”[link] , and all referred to it as a “general convention” [search HERE for “general convention”, and you will see]. And in Madison’s Nov. 2, 1788 letter to Turberville [link], he writes,

“…3. If a General Convention were to take place for the avowed and sole purpose of revising the Constitution it would naturally consider itself as having a greater latitude than the Congress appointed …”

³ Madison opposed the convention method: Federalist No. 49 (Feb. 1788); his letter to Turberville of Nov. 2, 1788 [link]; his letter to George Eve of Jan. 2, 1789 [link]; and on June 8, 1789, he circumvented the application submitted to Congress by Virginia on May 5, 1789 for an Article V convention, by introducing into Congress a proposed “bill of rights”. That is the procedure we have followed ever since: When States want amendments, they instruct their congressional delegation to propose them.

⁴ In Federalist No. 85 (Aug. 1788), Hamilton addressed the arguments of antifederalists who wanted another convention so they could get rid of our newly ratified Constitution. The “excellent little pamphlet” he refers to (9^th para) was written during April 1788 by John Jay (first Chief Justice of the United States) and shows:

“the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded.”

Jay warned in his Pamphlet that another convention would run “extravagant risques” [risks].

⁵ Even though Article V speaks of “a Convention for proposing Amendments”, the Delegates would have the “self-evident” right, recognized in the 2^nd para of our Declaration of Independence, to throw off our existing Form of Government and set up a new Constitution which creates a new government. And since a new Constitution would also have its own new mode of ratification, it would surely be approved.

⁶ The proposed Constitution for the Newstates of America is ratified by a national referendum [Art 12, § 1].

Here’s the proposed Constitution for “The New Socialist Republic in North America”.

The Constitution 2020 movement is backed by George Soros, Eric Holder, Cass Sunstein, and Marxist law professors. They want a progressive Constitution in place by the year 2020.

⁷ Farris’ paper, “Answering the John Birch Society Questions about Article V”, is HERE on the COS website; the copy I preserved is HERE.

⁸  Here’s an example of an amendment to remedy a perceived defect in our Constitution:  It originally delegated to federal courts the power to hear cases “between a State and Citizens of another State” (Art. III, §2, cl. 1). But when a Citizen of South Carolina sued the State of Georgia, the States were outraged!  See Chisholm v. Georgia, 2 U.S. 419 (1793).  So during the Washington Administration, the 11^th Amendment was ratified to take away from the federal courts the power to hear cases filed by a Citizen against another State.

⁹  See Note 8 above.  What if Congress hadn’t agreed to propose that amendment?  That type of scenario is what Mason’s words addressed.  Here are examples of other defects Congress might not agree to repair by amendment:

♦ The Tariff Act of 1828 was constitutional – it was authorized by Art. I, §8, cl. 1, US Constitution. But it was oppressive because it benefited infant industries in the North at the expense of the Southern States.  An amendment could provide that tariffs may be imposed only to raise revenue to carry out the delegated powers of the federal government; and may not be imposed to benefit domestic industries, or to benefit one part of the Country at the expense of another part.  But Congress might not agree to such an amendment.

♦ Slavery was once permitted – the federal fugitive slave laws (Art. IV, §2, clause 3) were oppressive.  Slavery was a defect to be repaired by amendment.  But Congress might not agree to such an amendment.

¹⁰  Art. 13 of the Articles of Confederation required amendments to be agreed to by Congress and all of the States.  Here are the instructions the States gave delegates to the federal convention of 1787:

♦”alterations to the Federal Constitution which, when agreed to by Congress and the several States, would become effective”: Virginia, Pennsylvania, Delaware, Georgia, S. Carolina, Maryland, & New Hampshire.

♦”for the purpose of revising the Federal Constitution”:  Virginia, Pennsylvania, North Carolina, Delaware, and Georgia;

♦”for the sole and express purpose of revising the Articles of Confederation”: New York, Massachusetts, and Connecticut.

♦”provisions to make the Constitution of the federal government adequate”:  New Jersey

¹¹ George Mason’s and Patrick Henry’s desire for an Article V convention so they could get rid of the Constitution of 1787, was no secret.  See, among various others of James Madison’s letters:

♦ His of April 22, 1788 to Thomas Jefferson [link at pages 121-122]: “Mr. H—y is supposed to aim at disunion.  Col. M—-n is growing every day more bitter… if a second Convention should be formed, it is as little to be expected that the same spirit of compromise will prevail in it as produced an amicable result in the first. It will be easy also for those who have latent views of disunion, to carry them on under the mask of contending for alterations….” 

♦ In his letter of Nov. 2, 1788 to Edmund Randolph [link at page 295], he recites how, on October 27, Patrick Henry had introduced in the Virginia Assembly an application to the first congress “to call a second convention for proposing amendments to it…”  and that Mr. H—y’s “…enmity was levelled, as he did not scruple to insinuate agst the whole system; and the destruction of the whole system I take to be still the secret wish of his heart, and the real object of his pursuit…”

♦ In his letter of Dec. 8, 1788 to Jefferson [link at page 312]: “…it is equally certain that there are others who urge a second Convention with the insidious hope, of throwing all things into Confusion, and of subverting the fabric just established, if not the Union itself…

¹² Nullification Made Easy and What Should States Do When the Federal Government Usurps Power?

Revised July 5, 2020

Treason, Cowardice, and the Islamic Invasion: Why States Must Revitalize The Militia

By Publius Huldah

To All State Governors and State Legislators:

War is coming to America. Obama is importing young able-bodied males to make civilizational jihad on us; and Congress can’t summon up the moral courage to stop him.

To see what is ahead for us, watch this 20 minute video. It depicts the Islamic takeover which is right now going on throughout Europe as European countries are being repopulated by millions of young able-bodied Muslim males (euphemistically called “refugees”) who are explicit about their intention to breed the native Europeans out of existence, and replace the European cultures with Islamic culture.

And Obama is bringing it here.

This paper discusses the two courses of action set forth in Federalist Paper No. 46 for situations such as this: (1) The States must refuse to cooperate with the federal government; but if that doesn’t solve the problem, (2) The States must use their State Militia to defend their State and Citizens.

Invaders are not “Refugees” or “Immigrants”

Those pushing for an Islamic takeover of Europe and North America are referring to these able-bodied young Muslim males as “refugees”. The use of that term brings the Muslims who are brought into the United States within the federal Refugee Resettlement Act. And since the Constitution delegates power over immigration to Congress, and Congress re-delegated refugee policy to the President, the States must submit to Obama’s Will and accept the “refugees” he forces on them. Thus goes the specious argument recently made by Ian Millhiser.

But we will look at the Truth.

What does our Constitution say about Immigration and Naturalization?

Immigration (or migration) pertains to new people coming to this Country to live.¹ Naturalization refers to the process by which an immigrant becomes a Citizen.

Our Constitution does delegate power over immigration and naturalization to Congress. Article I, §9, clause 1, delegates to Congress (commencing January 1808) power to control migration. ² Article I, §8, clause 4, delegates to Congress power to establish an uniform Rule of Naturalization.

But what is going on now with the importation of large numbers of able-bodied young Muslim males is not “immigration” as contemplated by our Constitution. It is an act of war being committed against the People of the United States by their President. The plan is to overthrow our Constitutional Republic and set up an Islamic Caliphate over America. ³

That is Treason – it is Insurrection. It is not “immigration”, and it is not “refugee resettlement”.

The States must refuse to cooperate

Michael Boldin’s recent informative article explains how the federal resettlement program works: The federal government coordinates resettlement of “refugees” with non-governmental organizations (NGOs) located within the States, and thus circumvents state and local governments. Accordingly, the States should promptly stop all such NGO involvement; take control of the programs themselves; and then refuse to cooperate with the federal government.

James Madison, Father of our Constitution, spells this out in Federalist No. 46 (7^th para). Respecting unpopular acts of the federal government:

“…the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.” [emphasis mine]

But if the federal government persists, then the States must move to the next Step.

Our Constitution Imposes the Duty on the Federal Government to protect us from Invasion

Article IV, §4, requires The United States to protect each of the States against Invasion:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion…” [emphasis mine]

In Federalist No. 43 (3^rd para under 6.), Madison says of this provision:

“A protection against invasion is due from every society to the parts composing it…” [emphasis mine]

Article I, §8, clause 15 delegates to Congress the power:

“to provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions”.

Article 1, §8, clause 16 delegates to Congress the power to provide for organizing, arming, and disciplining, the Militia. The States retain the power to appoint the Officers and conduct the training.

Article II, §2, clause 1 makes the President Commander in Chief of the Militia of the several States, when called into the actual Service of the United States. [But remember: the federal government may call forth the Militia only for the three purposes listed in Art. I, §8, cl. 15].

But the federal government hasn’t called forth the Militia to protect the States from the Islamic invasion. To the contrary, the President is importing the invaders and foisting them on the States.

So! What are States and The People to do? Because the President is aligned with the invaders, and Congress filled with moral cowards, must we passively submit to having ourselves and our Christian and Jewish children killed, and then let our surviving burka dressed daughters and granddaughters be handed over to the clitoris cutters?

No! The People have the Natural Right of self-defense; and the States have the reserved Power to defend their Citizens. With the State Militia, The People and the States have the means to exercise this Natural Right and reserved Power.

The States must Revitalize their State Militia

What is the Militia? As Dr. Edwin Vieira’s excellent series ⁴ on the Militia and how it guarantees the right to keep and bear arms shows, the Militia has a long history in America. That history began with the English settlements in the early 1600s. Every free male was expected to be armed and prepared at all times to protect himself, his family, and his community. Laws in the Colonies gave effect to this requirement. So at the time of the drafting of our Constitution in 1787, everyone knew of this 150 year long history of free American males being required to be armed, trained, and ready at a moment’s notice to answer the call of Duty.

Accordingly, the above identified “militia clauses” were written into our Constitution of 1787.

In 1792, Congress implemented these militia clauses and passed “An Act more effectually to provide for the National Defense by establishing an Uniform Militia throughout the United States”. This Act required all able-bodied male citizens (with a few exceptions) between the ages of 18 and 45 to get a rifle, bayonet, ammunition and an ammunition pouch, and enroll in the local Unit of their State Militia for training.

As Section 1 of the Act shows, the adult able-bodied male Citizens of a State are The Members of their State Militia. So, continuing the long-standing colonial tradition, Members of Congress in 1792 thought it such a fine idea that all male citizens be armed and trained and members of their State Militia, they required it by federal law!

So! As Art. I, §8, cl. 15 shows, Congress is authorized to provide for calling the Militia into national service to “execute the Laws of the Union, suppress Insurrections and repel Invasions”. But what if the federal government refuses to act?

Alexander Hamilton provides the answer in Federalist No. 29. Hamilton shows that one of the purposes of the Militia is to protect the Citizens of the States from threats to their liberties posed by the federal government (7^th & 12^th paras); and that the States’ reservation of power to appoint the Officers secures to them an influence over the Militia greater than that of the federal government (9^th para).

And on the use of the Militia to repel Invasions, Hamilton says (13^th para):

“In times of insurrection, or invasion, it would be natural and proper that the militia of a neighboring State should be marched into another, to resist a common enemy, or to guard the republic against the violence of faction or sedition…”

True, it was contemplated that the “United States” would be the entity which protects the States against Invasion (Art. IV, §4). But when the federal government has demonstrated its determination that the States ARE TO BE OVERRUN BY INVADERS, then the People have the natural right to defend themselves, and their States have the retained Power to employ the Militia to defend them from those into whose hands the federal government has demonstrated its determination to deliver them.

The States are within their retained Sovereign Power to call up their State Militia to fend off invaders. Article I, §10, last clause, is an expression of this retained sovereign Power of States of self-Defense:

“No State shall … engage in War, unless actually invaded…”

Clearly, the States may use their State Militia to engage in War to defend the States from Invasion.⁵

James Madison spoke to the same effect as Hamilton respecting federal tyranny. In Federalist No. 46 (9^th para), Madison speaks of a federal government so consumed with madness that it sends its regular army against the States:

“…Let a regular army … be formed; and let it be entirely at the devotion of the federal government; still it would not be going too far to say, that the State governments, with the people on their side, would be able to repel the danger. … [To the regular army] would be opposed a militia amounting to near half a million of citizens with arms in their hands, officered by men chosen from among themselves, fighting for their common liberties, and united and conducted by governments possessing their affections and confidence. It may well be doubted, whether a militia thus circumstanced could ever be conquered by such a proportion of regular troops. … Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms [an insurmountable] barrier against the enterprises of ambition…” [boldface mine]

Look to Your State Constitution for Provisions re Your State Militia

Article VIII of the Constitution for the State of Tennessee provides for Tennessee’s Militia. Consistent with the tradition which has existed in this Country since the early 1600s, all Tennessee Citizens are members of this Militia. Article I, §28, TN Constitution says:

“That no citizen of the state shall be compelled to bear arms, provided he will pay an equivalent, to be ascertained by law.”

Read your State Constitution. What does it say about the Militia? What do the implementing State Statutes say? Is your State Militia active? Why not? For information on revitalizing your State Militia, see Dr. Vieira’s three part series, “Are You Doing Your Constitutional Duty For “Homeland Security”?

Conclusion

Madison closes his magnificent 9^th paragraph in Federalist No. 46 with this:

“…Let us not insult the free and gallant citizens of America with the suspicion, that they would be less able to defend the rights of which they would be in actual possession, than the debased subjects of arbitrary power would be to rescue theirs from the hands of their oppressors. Let us rather no longer insult them with the supposition that they can ever reduce themselves to the necessity of making the experiment, by a blind and tame submission to the long train of insidious measures which must precede and produce it.” [emphasis mine]

But we became “debased subjects of arbitrary power”. So now, will we lay down before the Invaders and Insurrectionists and those in our federal government who aid and abet them? Or we will man up, revitalize our State Militia, and show the world that we still have some “free and gallant Citizens of America” in this land?

Endnotes:

¹ Our Framers contemplated that immigration would be restricted to people who shared our culture and values – e.g., Federalist No. 2, 5^th para.

But Americans got conned into believing that an ideal culture is multicultural. Thus, with Teddy Kennedy’s immigration reform act of 1965, our borders were opened to all. We congratulated ourselves on our new virtues of “tolerance” and “diversity”. But the goal of the multiculturalists was to eradicate our unique Culture – we were too gullible to see it. So now, the enemy is inside the gates, and more are coming in. And Islam doesn’t tolerate multiculturalism.

² “Open borders” adherents bristle at the assertion that Congress has constitutional authority to restrict immigration. They insist that Art. I, §9, cl. 1 addresses only the importation of slaves and says nothing about free immigrants. But the text distinguishes between “migrations” and “importations”, and the Duty is levied on “importations”, not “migrations”. Slaves, being “property”, were “imported”. Free Europeans “migrated”. The power of the States to determine such persons as it was proper to admit, expired January 1808. There are various letters and speeches from our early days confirming this. I’ll write it up when I get time (if this doesn’t turn on the light). For now, see Federalist No. 42 (6^th para):

“…Attempts have been made to pervert this clause [Art. I, §9, cl. 1] into an objection against the Constitution, by representing it on one side as a criminal toleration of an illicit practice [the slave trade], and on another as calculated to prevent voluntary and beneficial emigrations from Europe to America. I mention these misconstructions, not with a view to give them an answer, for they deserve none, but as specimens of the manner and spirit in which some have thought fit to conduct their opposition to the proposed government.” [boldface mine]

Our Framers understood that the national government must be able to determine who is allowed to come here. That’s why Art. I, §9, cl. 1 delegates to Congress power to control immigration, commencing January 1808. And isn’t one of your complaints against the federal government that it has refused for so long to control our Borders?

³ See the website for The Center for Security Policy (Frank J. Gaffney) HERE. There you can read The Plan of the Muslim Brotherhood to infiltrate and take over all American Institutions. They are working to make this Country part of a global Islamic caliphate. Open your eyes NOW.

⁴ Do read all 8 of Dr. Vieira’s papers in this series. They get very moving.

⁵ “Troops” as in Art. I, §10, last clause, are professional full-time soldiers. States may not keep “Troops” absent consent of Congress. But the States’ Militia is a permanent State institution. The States retain their pre-constitutional powers over their Militia, subject only to the federal government’s limited supremacy set forth in the 3 Militia clauses [See Part 2 of Dr. Vieira’s paper HERE.] PH

December 2, 2015

Does the Creature Dictate to the Creator?

By Publius Huldah

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

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

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

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

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

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

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

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

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

The nullification deniers say, “YES!”

Manly men say, “NO!”

Nullification: The Original Right of Self-Defense

By Publius Huldah

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

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

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

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

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

Our Federal Government has Enumerated Powers Only

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

State Governments Must Man Up and Preserve our Constitution.

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

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

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

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

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

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

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

Brave Citizens Must Man up Also.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Madison then says:

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

Do you see? Madison’s points are:

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

Start Doing YOUR Duty

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

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

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

Endnotes:

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

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

We must start electing candidates who know the Constitution!

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

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

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

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

May 3, 2015

 

Delegates to an Article V Convention Can’t be Controlled by State Laws!

By Publius Huldah

Our Declaration of Independence (2^nd para) sets forth our long forgotten Founding Principles that:

♦  All men are created equal.

♦  Rights come from God.

♦  People create governments to secure God-given rights. The first three words of our Constitution throw off the European model where political power originates with the State; and establish the new Principle that WE THE PEOPLE are the “pure, original fountain of all legitimate political authority” (Federalist No. 22, last sentence).

♦  When a government seeks to take away our God given rights, we have the right to alter, abolish, or throw off that Form of government.

These are the Principles which justified our Revolution against a King.

These are also the Principles which permit us today to throw off our Form of government by discarding our existing Constitution and replacing it with another one. This is why the language at Article V of our Constitution, which authorizes Congress to call a convention “for proposing amendments”, does not restrict Delegates to merely “proposing amendments”: Delegates are invested with that inherent pre-existing sovereign right, recognized in our Declaration, to abolish our existing Form of government (our Constitution) and propose a new Constitution.

This has happened once before in our Country. I’ll show you.

The Federal Convention of 1787: Federal and State Instructions to Delegates

Pursuant to Article XIII of The Articles of Confederation (our first Constitution), the Continental Congress resolved on February 21, 1787 to call a convention to be held at Philadelphia:

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

The Continental Congress authorized each of the then 13 States to appoint Delegates to the convention. Twelve of the States ¹ appointed Delegates and  instructed them to propose amendments to the Articles of Confederation.  ²

But the Delegates ignored the federal and State limitations and wrote a new Constitution (the one we have now is our second Constitution).  Because of this inherent authority of Delegates, it is impossible to stop it from happening at a convention today (which will surely result in a third Constitution).

The Delegates to the 1787 convention also instituted an easier mode of ratification. Whereas Article XIII of the Articles of Confederation required approval of the Continental Congress and all of the then 13 States before an amendment could be ratified; Article VII of the new Constitution provided that only 9 States were required for ratification of the new Constitution.

 Why is an Article V Convention Dangerous?

So! Do you see? If we have a convention today, there is nothing to stop Delegates from proposing a third Constitution with its own new method of ratification.

New Constitutions are already prepared and waiting for a convention. Here are three:

♦  Fifty years ago, the Ford Foundation produced the Constitution for the Newstates of America. It is ratified by a referendum called by the President [Art 12, Sec. 1]. If we have a convention, and Delegates propose the Newstates Constitution, it doesn’t go to the States for ratification – it goes directly to the President to call a Referendum. The States are dissolved and replaced by regional governments answerable to the new national government. Read the Newstates Constitution and tremble for your country.

♦ The Revolutionary Communist Party, USA has a Constitution for The New Socialist Republic in North America.  The text of their proposed constitution is HERE.

♦ The Constitution 2020 movement is funded by George Soros and supported by Marxist law professors and Marxist groups all over the Country, Cass Sunstein and Eric Holder. They want a Marxist Constitution and they want it in place by the year 2020. It further appears that Soros is funding much of the current push for an Article V convention.

Do you know about the North American Union (NAU)?  During 2005, George W. Bush met on his ranch with the Prime Minister of Canada and the President of Mexico and they sketched it out.  The three countries merge and a Parliament is set up over them.  HERE is the Task Force Report on the NAU by the Council of Foreign Relations – Heidi Cruz was on the Task Force which wrote this up.  The United States will need a new Constitution wherein we surrender our sovereignty to the North American Union.   People!  If there is an Art. V convention, the Delegates can impose such a new Constitution with whatever mode of ratification will guarantee approval; and before you know it, we will be a Member State of the NAU.

Warnings from the Wise

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

♦  Alexander Hamilton writes of “the utter improbability of assembling a new convention, under circumstances in any degree so favorable to a happy issue, as those in which the late convention met, deliberated, and concluded…”  Federalist No. 85 (9^th para); and that he “dreaded” the consequences of a new convention because he knows that there are powerful individuals in several States who are enemies to having any kind of general [federal] government.  This could result in our losing the Constitution we have (No. 85, last para).

♦  James Madison writes in his Nov. 2, 1788 letter to Turberville that he “trembled” at the prospect of a second convention; and that an Article V Convention would give “the most violent partizans” and “individuals of insidious views” “a dangerous opportunity of sapping the very foundations of the fabric” of our Country.

In Federalist No. 49, Madison shows that the convention method is NOT GOOD to correct breaches of the federal constitution because the People aren’t philosophers – they follow what influential people tell them! And the very legislators who caused the problem would get themselves seats at the convention so they could control the outcome.

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

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

♦ Former US Supreme Court Justice Scalia said on April 17, 2014 at the beginning of this video:

“I certainly would not want a Constitutional Convention. I mean whoa. Who knows what would come out of that?”

Can State Laws Control Delegates?

Convention supporters say we don’t have to worry about any of the above because States can make laws controlling their Delegates.

Really? Alexander Hamilton and James Madison (father of our Constitution), opponents of the convention method of proposing amendments, didn’t know that. Two US Supreme Court Justices didn’t know that. They said there is no effective way to control the Delegates.

But in case you are uncertain as to who is telling you the Truth – and who isn’t – I will show you how easily State laws which pretend to control Delegates can be circumvented. Let’s use House Bill 148, recently filed in the New Hampshire Legislature, to illustrate this:

Section 20-C:2 I. of the New Hampshire bill says:

“No delegate from New Hampshire to the Article V convention shall have the authority to allow consideration, consider, or approve an unauthorized amendment to the Constitution for the United States of America.” [italics mine]

Section 20-C:1 V. of the bill defines “unauthorized amendment” as:

“any amendment outside the scope permitted by the Article V petition passed by the general court of New Hampshire”.

What is wrong with this?

♦  If the States already know what amendments they want, they should tell their State congressional delegations to propose them in Congress. This is the method James Madison used and always advised.

♦  New Hampshire Delegates can’t restrict Delegates from other States.

♦  It doesn’t prohibit New Hampshire Delegates from proposing or approving a new Constitution.

♦  It ignores the inherent sovereign authority of Delegates to throw off both their State governments and the federal government by proposing a new constitution with whatever new mode of ratification they want. Remember! Under the proposed Newstates Constitution, the States are dissolved and replaced by regional governments answerable to the new national government.

♦ Delegates to an Article V convention are performing a federal function – they are not under the authority of the States.

♦  Article V of the US Constitution provides that Amendments will be proposed at the convention. Any state laws contrary to Article V must fall under the supremacy clause at Article VI, US Constitution.

 

Section 20-C:2 II. of the New Hampshire bill says:

“Any vote taken by a delegate from New Hampshire at the Article V convention in violation of paragraph I of this section shall be null and void. Any delegate making this vote shall be immediately disqualified from serving as a delegate to the Article V convention.”

What is wrong with this?

♦  What if the Delegates vote to keep their proceedings secret? At the federal convention on May 29, 1787, our Framers made rules restricting publications of their proceedings.

♦  What if the Delegates vote by secret ballot? As long as some vote “for” and others vote “against” every proposition, there is no way to tell who did what.

Section 20-C:2 III. of the New Hampshire bill says:

“Every delegate from New Hampshire to the Article V convention called for by the Article V petition shall be required to take the following oath:” “I do solemnly swear or affirm that to the best of my abilities, I will, as a delegate to the Article V convention, uphold the Constitution and laws of the United States and the state of New Hampshire. I will accept and will act according to the limits of the authority as a delegate granted to me by New Hampshire law, and I will not vote to consider or approve any unauthorized amendment to the Constitution for the United States of America. I understand and accept any penalties that may be imposed on me by New Hampshire law for violating this oath.” [boldface mine]

Does one need to comment on the efficacy of Oaths of Office in our degenerate times? Article II, §1, last clause, of our Constitution requires the President to take an Oath to “preserve, protect and defend the Constitution of the United States”; and Article VI, last clause, requires everyone in the federal and State governments to take an oath to obey the Constitution. Who today honors his Oath of Office?

Section 20-C:2 IV. of the New Hampshire bill says:

“Any delegate who violates the oath contained in paragraph III of this section shall be subject to the maximum criminal penalty under RSA 641:2.”

Any criminal defense attorney worth her salt can figure out how to get around this one:

♦  As shown above, if the proceedings of the convention are kept secret, or Delegates vote by secret ballot, one would never know if any one Delegate violated his oath. Defense counsel would get any attempted criminal prosecution of any particular Delegate dismissed at a pretrial hearing.

♦  Congress can pass a law granting immunity from prosecution to the Delegates.

♦  The Delegates can insert a clause in the new constitution granting themselves immunity from prosecution.

♦  If the new constitution abolishes the States, as does the Newstates Constitution, there is no State left to prosecute Delegates.

♦  The local prosecutor is the one who decides whether he will prosecute any criminal offense under his jurisdiction. Politics are a deciding factor in deciding whether to prosecute. Remember Eric Holder refused to prosecute Black Panthers who intimidated white voters at a polling place?

Do you see? James Madison, Justice Arthur Goldberg, and Justice Warren Burger were right: It is impossible to restrict the Delegates.

Everything to Lose, Nothing to Gain

If there is a convention today, George Washington, James Madison, Ben Franklin, and Alexander Hamilton won’t be there to protect you. Who will the Delegates be? You don’t know. Do you trust them?

Our Framers never said that when the federal [and State] government violate the Constitution, the remedy is to amend the Constitution they violate.

They never said the remedy is to file a lawsuit and let federal judges decide. They expected us to act as they did – with “manly firmness” ³ – and resist unconstitutional acts of the federal and state governments.

Our Constitution doesn’t need “fixing” – it needs to be read and enforced by our votes; and failing that, by manly opposition – resistance – nullification.

Endnotes:

¹ Rhode Island boycotted the Convention.

2  Article XIII of the Articles of Confederation required approval of amendments by the Continental Congress and by every State.

HERE [from Farrand’s Records, vol. 3, Appendix B, p. 559-586] are the Credentials of the Delegates to the Federal Convention of 1787 and Instructions from their States.  These Instructions encompassed:

♠ “alterations to the Federal Constitution which, when agreed to by Congress and the several States, would become effective“:  Virginia, Pennsylvania, Delaware, Georgia, S. Carolina, Maryland, & New Hampshire;

♠ “for the purpose of revising the Federal Constitution”: Virginia, Pennsylvania, North Carolina, Delaware, and Georgia; 

♠ “for the sole and express purpose of revising the Articles of Confederation”: New York, Massachusetts, and Connecticut;

♠ “provisions to make the Constitution of the federal Government adequate”: New Jersey.

³ The 7^th paragraph of the Declaration of Independence says: “He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.” [boldface mine] PH

Published Feb 1, 2015
Revised July 9 &10, 2015; Oct 25, 2015; Jan 8, 2017

James Madison Rebukes Nullification Deniers

By Publius Huldah

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

Nullification deniers such as Matthew Spalding of Heritage Foundation, Jarrett Stepman of Human Events, law professor Randy 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 (5^th 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 (2^nd 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 (2^nd 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 (5^th para); and Thomas Jefferson, in his draft of The Kentucky Resolutions of 1798 (8^th 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 (9^th para):

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which … 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 (13^th Amendment);

♦ Providing fair trials in federal courts (4^th, 5^th, 6^th, 7^th, and 8^th 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  (5^th 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 10^th Amendment says:

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

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

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

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

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

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

Do you see how they pervert Our Constitution?

False Assertion 2:

That Nullification is literally impossible.

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

♦ The act of the federal government must be unconstitutional, and

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

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

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

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

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

The Jim Crow laws required black people to sit at the back of the bus, and prohibited them from eating in public places and using public restrooms, water fountains, park benches, etc. Using non-violent civil disobedience, Rosa Parks and MLK led black people to refuse to obey these unjust and unconstitutional (Sec. 1, 14^th 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 3^rd Resolution, Madison says:

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

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

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

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

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

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

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

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

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

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

False Assertion 4:

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

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

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

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

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

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

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

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

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

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

Thus, the Tariff Act of 1828 was constitutional! ¹¹

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

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

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

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

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

♦ The federal government has delegated authority to impose import tariffs;

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

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

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

♦  Nullification is not a “constitutional right”;

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

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

Madison then says:

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

Do you see?  Madison is saying that:

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

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

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

Application Today

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

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

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

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

To sum this up:

♦ Nullification is a natural right of self-defense.

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

♦ Nullification is a reserved power within the meaning of the 10^th 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 2^nd para of the Declaration of Independence says we have the duty to overthrow tyrannical government. See: The Biblical Foundation of our Constitution.

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

Conclusion

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

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

Post script added October 2, 2013:

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

Endnotes:

¹ Thomas Jefferson, The Kentucky Resolutions of 1798, 8^th 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 (5^th 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 3^rd 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, 3^rd 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, 8^th 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 1798,8^th 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, 10^th 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