The USMCA “Trade Agreement” violates our Constitution and sets up Global Government
By Publius Huldah
On November 30, 2018, President Trump, along with the Prime Minister of Canada and the President of Mexico, signed the United States-Mexico-Canada (USMCA) “Trade” Agreement. “Trade” is in quotes, because the document isn’t about “trade” – it’s about setting up global government.
The USMCA Trade Agreement was negotiated by U.S. Trade Representative, Robert Lighthizer. He is a member of the Council on Foreign Relations, which works to move the United States into the North American Union (NAU). 1
The USMCA Agreement advances the economic and regulatory integration of the three Parties. It is the precursor to the political integration the globalists seek with the NAU. 2
1. Summary of objections to the USMCA Agreement
Our Constitution and Declaration of Independence are the “organic law” of our Land. 3 Treaties (and other Agreements made with foreign nations or global governmental organizations), like Acts of Congress, hold a lesser status: they are part of “the supreme Law of the Land” only when they are authorized by “organic law” – our Constitution (Art. VI, cl.2). 4
While the United States is clearly authorized by Art. I, §8, cl. 3 & Art. II, §2, cl. 2, US Constit., to enter into Treaties with foreign Nations addressing Commerce; 5 the United States may not lawfully transfer to global or multi-national bodies, powers which “WE THE PEOPLE” delegated to our federal government when We ratified our Constitution. But that is what the USMCA Agreement purports to do.
Even worse, the USMCA Agreement also purports to delegate to global or multi-national bodies powers which We never delegated to our federal government – but reserved to the States or the people.
The USMCA Agreement establishes a bureaucratic multi-national government which is to control all aspects of commerce and to which the United States, Mexico and Canada will be subject.
The USMCA Agreement incorporates by reference many other documents. Its frequent use of new terminology requires one to constantly refer to the various definition sections spread throughout the 34 Chapters. It engages in the pernicious practice of making a statement, and then qualifying it by phrases such as, “unless otherwise provided in this Agreement” and “unless the Parties decide otherwise”. 6
2. Powers We delegated to our federal government
When the People of the United States ratified our Constitution, We “created” the federal government. Article I created the Legislative Branch and itemized its powers. Article II created the Executive Branch and itemized its powers. Article III created the Judicial Branch and itemized its powers. Each Branch of the federal government is thus a “creature” of the Constitution and is completely subject to its terms. None of the delegated powers may lawfully be re-delegated to global or multi-national bodies.
The USMCA Agreement violates the following provisions of our Constitution:
♦ At Art. I, §1, We vested in Congress, all legislative Powers granted by our Constitution.
♦ At Art. I, §8, We granted to Congress the powers
o Clause 1: To lay and collect Imposts (import tariffs)
o Clause 3: To regulate Commerce with foreign Nations
o Clause 5: To coin Money and regulate the Value thereof
o Clause 8: To issue Patents and Copyrights
♦ At Art. I, §9, cl. 1: Commencing January 1, 1808, We granted to Congress the power to control Migration (immigration) to the United States.
♦ At Art. II, §2, cl. 2, We granted to the President the power to make Treaties, provided two thirds of the Senators present concur.
♦ At Art. III, §2, cl. 1, We declared that the judicial Power of the United States shall extend
o to all Cases arising under Treaties made under the Authority of the United States
o to Controversies to which the United States shall be a Party
♦ At Art. IV, §4, We imposed upon the United States the duties to:
o guarantee to every State in this Union a Republican Form of Government; and
o protect each of the States against Invasion.
♦ At Art. VI, cl. 2, We declared that our Constitution, and Acts of Congress and Treaties authorized by the Constitution, is the “supreme Law of the Land”.
♦ In the 10th Amendment, We declared that powers not delegated to the United States by the Constitution are reserved to the States or to the people.
Art. I, §8, cl. 1 – to “lay and collect Imposts”
Our Constitution delegates to Congress the power to set the amounts of the tariffs on foreign imports.
The USMCA Agreement divests Congress of the power to unilaterally determine our tariffs. USMCA Art. 2.4 7 says:
“1. Unless otherwise provided in this Agreement, no Party shall increase any existing customs duty, or adopt any new customs duty, on an originating good.
2. Unless otherwise provided in this Agreement, each Party shall apply a customs duty on an originating good in accordance with its Schedule to Annex 2-B (Tariff Commitments)”.
Art. I, §8, cl. 5 – to coin Money and regulate the Value thereof
Our Constitution delegates to Congress the power to control our money.8
But with the Federal Reserve Act of 1913, Congress and Woodrow Wilson unlawfully transferred power over our money to an international cabal of privately owned banks – the “Federal Reserve”.
Shortly after WWII, the United States joined the World Bank and the International Monetary Fund (IMF). 9 James Perloff’s article, Council On Foreign Relations – Influencing American Government, speaks of how the World Bank and IMF act as
“…a loan-guarantee scheme for multinational banks. When a loan to a foreign country goes awry, the World Bank and IMF step in with taxpayer money, ensuring that the private banks continue to receive interest payments. Furthermore, the World Bank and IMF dictate conditions to the countries receiving bailouts, thus giving the bankers a measure of political control over indebted nations.”
The USMCA Agreement surrenders the United States’ power over money and our economy to the IMF. USMCA Art. 33.1 defines “Article IV Staff Report” as the report prepared by the IMF respecting a country’s adherence to Art. IV, Section 3 (b) of the IMF Articles of Agreement. Section 3 provides that the IMF shall oversee the compliance of each member with its obligations under Section 1 of Article IV. Section 1 requires each member to “direct its economic and financial policies toward the objective of fostering orderly economic growth with reasonable price stability”, and to foster “orderly underlying economic and financial conditions and a monetary system that does not tend to produce erratic disruptions” [i.e., our economy is to be planned by the IMF].
Article IV, §3 (b) of the IMF Articles of Agreement states that the IMF “shall exercise firm surveillance over the exchange rate policies of members”, and “shall adopt specific principles for the guidance of all members with respect to those policies”. USMCA Art. 33.4 confirms that the three Countries are “bound under the IMF Articles of Agreement to avoid manipulating exchange rates or the international monetary system”; but private manipulators (George Soros) don’t seem to be bound by that restriction.
USMCA Art. 33.6 establishes a Macroeconomic Committee which “shall monitor the implementation of this Chapter and its further elaboration.” Paragraph 5 of Art. 33.6 empowers the Committee to amend and issue “interpretations” of Chapter 33; and declares that such interpretations “shall be deemed to be an interpretation issued pursuant to a decision by consensus of the Commission.” USMCA Art. 1.4 defines “Commission” as “the Free Trade Commission” established under USMCA Art. 30.1.
Art. I, §8, cl. 8 – to issue Patents and Copyrights
The purpose of delegating the power to issue Patents and Copyrights to Congress is to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.
The USMCA Agreement subordinates these property rights to the collective. USMCA Art. 20.2 states:
“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”
Article 20.3 prohibits the Parties from making any laws or regulations inconsistent with Chapter 20; and requires that any measures to protect property rights be “consistent with the provisions of this Chapter”. The Parties are “to prevent the abuse of intellectual property rights by right holders”. Article 20.5 requires each Party to ensure “that measures to enforce intellectual property rights do not themselves become barriers to legitimate trade” or “contravene this Chapter”.
Article 20.7 requires the Parties to ratify or accede to a long list of international “agreements” including the World International Property Organization’s (WIPO) Patent Law Treaty. The WIPO is an agency of the United Nations.
The 64 pages of Chapter 20 have nothing to do with protection of property rights in Inventors. Instead, Chapter 20 subordinates ownership of those rights to the collective; and establishes the framework for global government of patents and copyrights. 10
Art. I, §9, cl.1 grants to Congress power over Migration;
Art. IV, §4 requires the United States to protect each of the States against Invasion;
and Art. I, §8, cl. 15 authorizes the use of the Militia to repel invasions
Our Framers understood that control over who enters our Country is an essential element of sovereignty.
But the USMCA Agreement subordinates the United States’ sovereign power over immigration to global and multi-national bodies. USMCA Art. 16.2 declares:
“3. Nothing in this Agreement prevents a Party from applying measures to regulate the entry of natural persons of another Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to any Party under this Chapter.” [italics added]
Article 16.8 declares:
“Except for this Chapter, Chapter 1 (Initial Provisions and General Definitions), Chapter 30 (Administrative and Institutional Provisions), Chapter 31 (Dispute Settlement), Chapter 34 (Final Provisions), Article 29.2 (Publication), and Article 29.3 (Administrative Proceedings), this Agreement does not impose an obligation on a Party regarding its immigration measures.” [italics added] 11
USMCA Art. 23.1 cites the International Labor Organization’s (ILO) “Declaration on Fundamental Principles and Rights at Work” (1998), as guiding the treatment of labor issues under the Treaty. The ILO is an agency of the United Nations (UN); and part of the ILO’s “social justice” agenda is to formulate “fair migration schemes in regional integration processes”.
So this is how the UN is to dictate immigration policy for the “regional integration” of Canada, the United States and Mexico.
Art. II, §2, cl. 2, grants to the President the power to make Treaties,
provided two-thirds of the Senators present concur
Chapter 30 of the USMCA Agreement establishes the Free Trade Commission. It is the governing body of the bureaucracy which is created by the Agreement. Among other powers, the Commission supervises the work of all committees and other subsidiary bodies established under the Agreement; has the power to merge or dissolve committees and other subsidiary bodies; and has the power to “consider” proposals to amend or modify the Agreement. While Art. 30.2, 2. (c) lists six areas where modifications of the Agreement are subject to completion of “applicable legal procedures by each Party”, it does not require that other types of modifications of the Agreement be subject to such approval of the Parties.
And while USMCA Art. 34.3, 1. provides, “The Parties may agree, in writing, to amend this Agreement”, it doesn’t say that is the exclusive means of amendment. Accordingly, we must consider Art. 34.3 as providing an additional means of amendment.
USMCA Article 30.2, 2. (f) grants to the Commission power to “issue interpretations” of the Treaty; and the footnote thereto says that its interpretations “are binding for tribunals and panels established under Chapter 14 (Investment) and Chapter 31 (Dispute Settlement).”
And since, as noted above, the “interpretations” of Ch. 33 issued by the Macroeconomic Committee are considered as “interpretations” issued by the Free Trade Commission, the “interpretations” of the Macroeconomic Committee will also be binding on the tribunals deciding disputes between the Parties.
We thus permit the “creature” of the Agreement to modify the document under which it holds its existence!12
Art. III, §2, cl. 1, grants to U.S. Courts the Power to decide all Cases arising under Treaties &
all Controversies to which the United States is a Party.
In violation of our Constitution, the USMCA Agreement restricts the Parties to the dispute settlement procedures laid out in the Agreement.
Chapter 31 of the USMCA Agreement addresses resolution of disputes involving violations of the Agreement or “interpretations” of the Agreement issued (or “deemed to be issued”) by the Free Trade Commission. Disputes are heard by a panel of five drawn from a roster of up to 30 individuals appointed by the Parties. The panel is to make findings of fact and determinations and issue a report. If the disputing Parties don’t agree on the report, the complaining Party may suspend various benefits held by the responding Party under the Agreement.
Article 31.3 limits the Parties’ choice of a forum for dispute resolution to that set forth in the Agreement or in another international trade agreement to which the disputing Parties are signatories.
Article 31.20 permits a Party to intervene in proceedings already pending in a domestic judicial or administrative forum which involve the interpretation or application of the Agreement. The purpose of such intervention is to inform the domestic tribunal of the “interpretations” of the Agreement issued (or “deemed to be issued”) by the Free Trade Commission. Thus, the “interpretations” of the Agreement issued by the “creature” of the Agreement are to be foisted on our domestic courts and administrative law judges!
Note that Art. 31.21 expressly forbids a Party from making a law which grants a right of action against another Party on the ground that a measure of the other Party is inconsistent with the Agreement.
3. Powers reserved by the States or the People which the Agreement transfers to global organizations
Our Constitution is one of enumerated powers only. Most of the powers delegated to the federal government over the Country at large are listed within Art. I, §8. See this Chart.
Labor
We did not delegate to our federal government power over labor issues. However, beginning in the early 1900s, we permitted our federal government to exercise, by usurpation, powers over labor issues.13 As a result, we got the federal Department of Labor, a host of Acts of Congress addressing labor issues, and a plethora of Rules issued by the Department and published in Title 29 of the Code of Federal Regulations. The Department, its Rules, and the Acts of Congress are unconstitutional as outside the scope of powers delegated. The Rules are also unconstitutional as in violation of Art. I, §1, US Constit.
Chapter 23 of the Agreement transfers those usurped powers to the United Nation’s International Labor Organization (ILO).
Article 23.1 defines “labor laws” as the statutes and regulations of a Party that are directly related to “internationally recognized labor rights” such as the “right” to collective bargaining; and which require Parties to make laws to provide wage-related benefits payments for workers such as profit sharing, bonuses, retirement, and healthcare.
Here are some of the dictates set forth in the Agreement with which US laws and agency rules must comply:
♦ At Art. 23.2, the Parties affirm their obligations stated in the ILO’s Declaration on Rights at Work and Declaration on Social Justice for a Fair Globalization (2008).
♦ Article 23.3 dictates that “Each Party shall adopt and maintain in its statutes and regulations, and practices thereunder,” various rights, as stated in the ILO’s Declaration on Rights at Work; and “Each Party shall adopt and maintain statutes and regulations, and practices thereunder, governing acceptable conditions of work with respect to minimum wages, hours of work, and occupational safety and health.”
♦ Article 23.5 requires each Party to “effectively enforce its labor laws”.
♦ Article 23.9 requires each Party to implement policies to protect workers against employment discrimination on the basis of sex, pregnancy, sexual orientation, gender identity, and caregiving responsibilities; and to provide job-protected leave for birth or adoption of a child and care of family members; and to protect against wage discrimination.14
Additional Reserved Powers transferred to global or multi-national bodies
The USMCA Agreement is long and complex: see the Table of Contents. Here are brief comments on some of the other powers reserved by the States or the People which are unlawfully transferred by the Agreement:
Chapter 19 addresses digital trade. Article 19.5 requires each Party to maintain a legal framework governing electronic transactions consistent with the principles of the UNCITRAL Model Law on Electronic Commerce 1996. That model law is a product of the United Nations Commission on International Trade Law.
Chapter 21 addresses competition policy. Article 21.1 requires each Party to maintain and enforce “national competition laws” which proscribe “anticompetitive business conduct”. The Parties are to apply those laws to “all commercial activities in its territory.” Article 21.4 requires each Party to adopt or maintain national consumer protection laws or regulations that proscribe fraudulent and deceptive commercial activities.
Chapter 24 addresses environmental laws. Article 24.3 requires each Party to ensure that its laws provide for high levels of environmental protection. Article 24.4 requires each Party to enforce its environmental laws. Article 24.9 requires each Party to control the production and use of substances which deplete or change the ozone layer [and on & on for 30 pages].
4. The Death of the Republican Form of Government
In a “republic”, the sovereign power is exercised by representatives elected by the People.
Article IV, §4, US Constit., requires the United States to guarantee to every State in this Union a Republican Form of Government.
But the USMCA Treaty, time after time, delegates the exercise of sovereign power to various panels, Committees, Commissions, UN organizations, and others – not one of which is elected by the People.
5. Don’t fall for the carrot dangled in your face!
The USMCA Agreement reportedly contains some tariff benefits to various industries in the United States such as the auto and dairy industries. Their profits (at least for a while) should increase as a result of the Agreement. And for that, We are to surrender our sovereignty to the globalists?!
6. The 1815 Free Trade Treaty between the United States and Great Britain
On Dec. 6, 1815, President James Madison sent this treaty to the Senate for ratification. It is two pages long. Unlike the USMCA Agreement, it doesn’t set up a government over the United States and Great Britain—thus proving that trade Agreements need not surrender our sovereignty. And Madison’s treaty doesn’t require a lawyer skilled in sniffing out dirty tricks to understand what it does.
7. Conclusion
In Federalist No. 22 (last para), Alexander Hamilton said that one of the problems with the Articles of Confederation (AOC), our first Constitution, was that it was never ratified by the PEOPLE. Because the only foundation for the AOC was the consent of state legislatures, questions had arisen concerning its validity.
This is why Art. VII of our second Constitution (the one we have now) provides for its ratification by Conventions held in each of the States. In support of the ratification method set forth in Art. VII, Hamilton wrote:
“…The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure, original fountain of all legitimate authority.” [caps are Hamilton’s].
This is why our Constitution begins with, “WE THE PEOPLE”. WE consented to it.
But the USMCA Agreement sets up global government over the economic issues covered by the Agreement. It is NOT to be submitted to THE PEOPLE for their consent. The globalists who infest our Legislative and Executive Branches (the latter of which, as the Perloff article points out, has been dominated by the Council on Foreign Relations for over 70 years) want the Agreement ratified by a simple majority vote in Congress. 15
The USMCA Agreement is illegitimate; and the global government it imposes is tyrannical.
Endnotes:
1 Here is the Council on Foreign Relations’ Task Force Report on the NAU.
2 The US Constitution is unique. It is (1) a written Constitution (2) which created the federal government; (3) listed the handful of powers granted to the federal government; and (4) has as its Foundation the Consent of The People. As our “Organic Law”, it is the standard by which the lawfulness of legislative Acts and Treaties is measured. Its existence undermines the political integration of Canada, Mexico, and the United States. That’s why the globalists want an Article V convention – to get a new constitution for the US which won’t stymie their plans.
3 “Organic law” is “the fundamental law, or constitution, of a state or nation…”
4 On the lesser status of treaties in relation to our Constitution: The objects on which the United States may enter into treaties are restricted to the enumerated powers delegated to the federal government – see authorities cited in this paper. On the lesser status of Acts of Congress: Federalist No. 78 (11th & 12th paras) says that when an Act of Congress violates the Constitution, “the Constitution ought to be preferred to the statute”; judges “ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”
5 See authorities quoted here.
6 The USMCA Agreement is long, intricate, and tricky. This paper addresses only parts of it. We are insane to allow international agreements “… so voluminous that they cannot be read, or so incoherent that they cannot be understood…” Federalist No. 62 (4th para from end).
7 To get an idea of the extent of the regulations on custom duties, skim all 72 pages of Chapter 2.
8 And our money is to be based on gold & silver (Art. I, §10, cl. 1). In Federalist No. 10 (next to last para), Madison warns against “A rage for paper money…or for any other improper or wicked project…”.
9 Perloff says the initial planning for the World Bank & IMF was by the Council on Foreign Relations.
10 Ayn Rand warned 60 years ago in Atlas Shrugged that if we didn’t change course, our Inventors and Authors would lose their property rights.
11 They left out Chapter 17, which addresses cross-border financial services. Art. 17.5, 1. (d) (iv) declares:
“No Party shall adopt or maintain… a measure that…imposes a limitation on… the total number of natural persons … that a … cross-border financial service supplier may employ and who are necessary for, and directly related to, the supply of a specific financial service…”
12 To allow the “creature” of a treaty to modify the treaty under which it holds its existence violates the Fundamental Principle of free government. See this paper under subheading 1 and its endnotes.
13 Our Framers said that if we want the fed. gov’t to have a power the Constitution doesn’t grant, we should amend the Constitution to delegate the additional power – we must not permit it to exercise the power by usurpation. See this paper under the subheading, “Washington’s Farewell Address”.
14 The footnote to USMCA Art. 23.9 says the United States’ existing policies regarding the hiring of federal workers is sufficient to fulfill the obligations set forth in Art. 23.9. We can be sure that the requirements of Art. 23.9 will later be extended to all employment in the United States.
15 Twelve Republican US Senators, by letter of Nov. 20, 2018, urged Trump to send the USMCA Agreement right away so it could be passed by the lame duck session of Congress by a simple majority vote.
edited Nov. 22, 2021
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Why Supreme Court opinions are not the “Law of the Land”, and how to put federal judges in their place.
By Publius Huldah
Central to the silly arguments made by the “Convention of States Project” (COSP) is their claim that 200 years of Supreme Court opinions have increased the powers of the federal government (as well as legalized practices such as abortion); that all these opinions are “the Law of the Land”; and we need an Article V convention so we can get amendments to the Constitution which take away all these powers the Supreme Court gave the federal government.
But the text of Article V contradicts COSP’s claim. Article V shows that our Constitution can be amended only when three fourths of the States ratify proposed amendments. The Supreme Court has no power to amend our Constitution. And it’s impossible for an amendment to take away powers our Constitution doesn’t grant.
1. First Principles
Let’s analyze COSP’s silly argument. We begin by looking at First Principles:
♦The Judicial Branch was created by Art. III, §1, US Constitution. Accordingly, it is a “creature” of the Constitution. 1
♦The federal government came into existence when the States, acting through special ratifying conventions held in each of the States, ratified the Constitution.2
Since the Judicial Branch is merely a “creature” of the Constitution, it follows that it is subordinate to the Constitution, and is completely subject to its terms. It may not annul the superior authority of the States which created the Judicial Branch when they ratified the Constitution; 3 and as a mere “creature” of the Constitution, it may NOT change the Constitution under which it holds its existence! 4
2. Supreme Court Opinions are not “the Law of the Land”
Article VI, cl.2, US Constit., the “supremacy clause”, defines “supreme Law of the Land” as the Constitution, and acts of Congress and Treaties which are authorized by the Constitution. Supreme Court opinions aren’t included!
Furthermore, Art. I, §1, US Constit., vests all law-making powers granted by the Constitution in Congress. Our Constitution doesn’t grant any lawmaking powers to the Judicial Branch.
So why does everybody say, as we heard during the Kavanagh confirmation hearings, that Roe v. Wade is “the Law of the Land”? Because Americans have been conditioned to believe that the Supreme Court is superior to our Constitution; that their opinions about our Constitution are “law”, and we are bound by them unless and until they issue new opinions which release us from their previous opinions.
3. Organic & statutory law and the totally different “common law” precedent followed in courts
Americans have been conditioned to ignore the huge distinctions between organic and statutory law, on the one hand; and the common law which is embodied in the precedents followed by judges in litigation.
Organic Law
Black’s Law Dictionary defines “organic law” as
“The fundamental law, or constitution, of a state or nation, written or unwritten; 5 that law or system of laws or principles which defines and establishes the organization of its government.”
The organic laws of the United States are
- The Declaration of Independence – 1776
- Articles of Confederation – 1777
- Ordinance of 1787: The Northwest Territorial Government
- Constitution of the United States – 1787
The Articles of Confederation was our first Constitution. It was replaced by our Constitution of 1787 when it was ratified June 21, 1788. The Northwest Ordinance was superseded by the transformation of the area covered by the Ordinance into States [pursuant to Art. IV, §3, cl. 2, US Constit.].
Do you see how absurd is the claim that the Supreme Court, a mere “creature” of the Constitution of 1787, has the power to change the Organic Law of the United States?
Statute Law
Black’s Law Dictionary defines “statute law” as the
“Body of written laws that have been adopted by the legislative body.”
As we saw above, all legislative Powers granted by our Constitution are vested in Congress (Art. I, §1). Acts of Congress qualify as part of the “supreme Law of the Land” only when they are made pursuant to Authority granted to Congress by the Constitution (Art.VI, cl. 2). When Acts of Congress are not authorized by the Constitution, they are mere usurpations and must be treated as such.6
Common Law
The “common law” applied in courts in the English-speaking countries came from the Bible.7 The Bible has much to say about our relations with each other: don’t murder people, don’t maim them, don’t steal, don’t bear false witness, don’t tell lies about people, don’t be negligent, don’t cheat or defraud people, and such. The Bible provides for Judges to decide disputes between people and empowers Judges to require the person who has violated these precepts to pay restitution to the person whom he harmed. So, e.g., the Biblical prohibitions against bearing false witness and slandering people became our modern day concepts of slander, libel, and defamation. These principles were applied in the English courts from time immemorial, and are applied in American Courts. Modern day American attorneys litigate these common law concepts all the time. So if I am representing a client in an action for say, fraud, I look at the previous court opinions in the jurisdiction on fraud, and see how the courts in that jurisdiction have defined fraud – i.e., I look for “precedents” – the courts’ previous opinions on the subject – and I expect the Judge on my case to obey that precedent. 8
THIS is the “common law”. It is “law” in the sense that it originated with God’s Word; and from “time immemorial” has been applied in the Courts of English speaking countries. But this precedent is binding or persuasive only on courts. 9 As precedent for judges to follow, it is never “the law of the land”!
So, keep these three categories – organic, statutory, and common law – separate, and do not confuse court precedent with the “Law of the Land”. The latter is restricted to the Organic Law, and statutes and treaties authorized by the Organic Law.
Now let’s look at the constitutional jurisdiction of the federal courts.
4. What kinds of cases do federal courts have constitutional authority to hear?
The ten categories of cases the Judicial Branch has authority to hear are enumerated at Art. III, §2, cl. 1, US Constit. 10
The first category is cases “arising under this Constitution”. In Federalist No. 80 (2nd para), Hamilton shows these cases concern “provisions expressly contained” in the Constitution. He then points to the restrictions on the authority of the State Legislatures [listed at Art. I, §10], and shows that if a State exercises any of those prohibited powers, and the federal government sues the State, the federal courts would have authority to hear the case (3rd & 13th paras).
So if a State enters into a Treaty, or grants Letters of Marque & Reprisal, or issues paper money, or does any of the other things prohibited by Art. I, §10, the controversy would “arise under the Constitution” and the federal courts have constitutional authority to hear the case.
Likewise, if a State passed a law which violated the Constitution – say one requiring candidates in their State for US Senate to be 40 years of age – instead of the 30 years prescribed at Art. I, §3, cl. 3 – the federal courts have constitutional authority to hear the case.
So the purpose of this category is to authorize the Judicial Branch to enforce the Constitution – not re-write it!! 11
Now let’s look at one way the Supreme Court butchered our Constitution in order to strike down State Laws they didn’t like.
5. How the Supreme Court violated the “arising under” clause to hear cases they have no constitutional authority to hear
Let’s use “abortion” to illustrate the usurpation. Obviously, “abortion” is not “expressly contained” in the Constitution. So abortion doesn’t “arise under” the Constitution; and the constitutionality of State Statutes prohibiting abortion doesn’t fit into any of the other nine categories of cases federal courts have authority to hear. Accordingly, federal courts have no judicial power over it. The Supreme Court had to butcher words in our Constitution in order to usurp power to legalize abortion. This is what they did:
The original intent of §1 of the 14th Amendment was to extend citizenship to freed slaves and to provide constitutional authority for the federal Civil Rights Act of 1866. That Act protected freed slaves from Southern Black Codes which denied them God-given rights. 12
Now look at §1 where it says, “nor shall any state deprive any person of life, liberty, or property, without due process of law;”
That’s the “due process” clause. As Professor Berger points out [ibid.], it has a precise meaning which goes back to the Magna Charta: it means that a person’s life, liberty or property can’t be taken away from him except by the judgment of his peers pursuant to a fair trial.
But this is how the Supreme Court perverted the genuine meaning of that clause: In Roe v. Wade (1973), they looked at the word, “liberty” in the due process clause and said, “liberty” means “privacy”, and “privacy” means “a woman can kill her unborn baby”. 13
And they claimed they had jurisdiction to overturn State Laws criminalizing abortion because the issue arises under the Constitution at §1 of the 14th Amendment! [ibid.]
The Supreme Court redefined words in Our Constitution to justify the result they wanted in the case before them.
The Supreme Court didn’t “enforce” the Constitution – they butchered it to fabricate a “constitutional right” to kill unborn babies.
And the lawyers said, “It’s the Law of the Land”; the People yawned; and the clergy said, “the Bible says we have to obey civil government – besides, we don’t want to lose our 501 (c) (3) tax exemption!”
6. What are the remedies when the Supreme Court violates the Constitution?
The opinions of which the convention lobby complains constitute violations of our Constitution. 14 The three remedies our Framers provided or advised for judicial violations of our Constitution are:
1. In Federalist No. 81 (8th para), Hamilton shows Congress can impeach and remove from office federal judges who violate the Constitution. Congress is competent to decide whether federal judges have violated the Constitution! Impeachment is their “check” on the Judicial Branch.
2. In Federalist No. 78 (6th para), Hamilton shows the Judicial Branch must rely on the Executive Branch to enforce its judgments. If the President, in the exercise of his independent judgment and mindful of his Oath to “preserve, protect and defend the Constitution”, determines that an opinion of a federal court is unconstitutional; his Duty is to refuse to enforce it. The President is also competent to decide whether federal judges have violated the Constitution! Refusing to enforce their unconstitutional judgments is his “check” on the Judicial Branch.
3. On the Right & Duty of the States – who created the federal government when they ratified the Constitution – to smack down their “creature” when their “creature” violates the Constitutional Compact the States made with each other, see Nullification: The Original Right of Self-Defense.
Endnotes:
1 “Creature” is the word our Founders used – e.g., Federalist No. 33 (5th para) & Jefferson’s draft of The Kentucky Resolutions of 1798 (8th Resolution).
2Art. VII, cl. 1, US Constit., sets forth ratification procedures for our Constitution.
3 Madison’s Virginia Report of 1799-1800 (pp 190-196).
4 Madison’s Journal of the Federal Convention of 1787 shows that on July 23, 1787, the Delegates discussed who was competent to ratify the proposed new Constitution. Col. Mason said it is “the basis of free Government” that only the people are competent to ratify the new Constitution, and
“…The [State] Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their creators…”
Madison agreed that State Legislatures were incompetent to ratify the proposed Constitution – it would make essential inroads on the existing State Constitutions, and
“…it would be a novel & dangerous doctrine that a Legislature could change the constitution under which it held its existence….”
It’s equally novel & dangerous to say that the Supreme Court may change the Constitution under which it holds its existence.
5 It is said England doesn’t have a written constitution.
6 Acts of Congress which are not authorized by the enumerated powers are void. They are not made “in Pursuance” of the Constitution and have supremacy over nothing. Federalist No. 27 (last para) says:
“…the laws of the Confederacy [the federal government], as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members [the States], will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS…” [capitals are Hamilton’s]
See also Federalist No. 33 (last 2 paras) and Federalist No. 78 (10th para).
7 John Whitehead mentions the Biblical origin of the common law in The Second American Revolution.
8 Art. III, §2, cl.1 delegates to federal courts power to hear “Controversies between Citizens of different States.” Much of the litigation conducted in federal courts falls into this category. These lawsuits aren’t about the Constitution. Instead, they involve the range of issues people fight about in State Courts: personal injury, breach of contract, business disputes, fighting over property, slander & libel, etc. In deciding these cases, federal judges are expected to follow the “common law” precedents.
9 In Federalist No. 78 (next to last para), Hamilton discusses how judges are bound by “precedents” which define and point out their duty in the particular cases which come before them.
10 In Federalist No. 83 (8th para), Hamilton says:
“…the…authority of the federal …[courts]…is declared by the Constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits, beyond which the federal courts cannot extend their jurisdiction…”
11 James Madison agreed that the purpose of the “arising under this Constitution” clause is to enable federal courts to enforce the Constitution. At the Virginia Ratifying convention on June 20, 1788, he explained the categories of cases federal courts have authority to hear. As to “cases arising under this Constitution”, he said:
“…That causes of a federal nature will arise, will be obvious to every gentleman, who will recollect that the states are laid under restrictions; and that the rights of the union are secured by these restrictions. They may involve equitable as well as legal controversies…”
12 This is proved in Harvard Professor Raoul Berger’s meticulously documented book, Government by Judiciary: The Transformation of the Fourteenth Amendment.
13 In Roe v. Wade (1973), the Supreme Court said under Part VIII of their opinion:
“…This right of privacy, whether it be founded in the Fourteenth Amendment’s concept of personal liberty and restrictions upon state action, as we feel it is … is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy…”
14 Many Supreme Court opinions violate our Constitution. Wickard v. Filburn (1942), discussed HERE, is another of the most notorious. But we elect to Congress people who don’t know our Constitution or The Federalist Papers; and they are unaware of their Duty – imposed by their Oath of office – to function as a “check” on the Judicial Branch by impeaching federal judges who violate our Constitution.
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