Publius-Huldah's Blog

Understanding the Constitution

The Plot to Impose a National Sales Tax or Value Added Tax

By Publius Huldah

A devilish plot is afoot to impose new national taxes on the American People. It is a masterful piece of trickery because the authorization for the new national taxes is buried within Compact for America’s version of a balanced budget amendment to the US Constitution.

Furthermore, the balanced budget amendment does nothing to control federal spending; and transforms our Constitution from one of limited and defined powers to one of general and unlimited powers. 1

Yet this monstrosity is pending in Michigan as SB 306 2 and in North Carolina as HB 366. 3 Legislators in four States, Alaska, Georgia, Mississippi and North Dakota, have already passed it.

Let’s look at Sections 1-6 of Compact for America’s balanced budget amendment:

It does Nothing to Control Federal Spending

Section 1 allows Congress to spend as much as they take from us in taxes and add to the national debt. That’s a good idea?

Sections 2 and 3 permit Congress to raise the debt whenever 26 States agree.  States are addicted to federal funds. Will 25 States agree not to take more federal funds?

Section 4 is a joke:  Who believes Congress will impeach a President for refusing to “impound” an appropriation made by Congress? Congress won’t even impeach a President for Treason.

How Authorization for the New Taxes is Hidden

Section 5 says:

“No bill that provides for a new or increased general revenue tax shall become law unless approved by a two-thirds roll call vote of the whole number of each House of Congress….” [italics mine]

What is a “general revenue tax”? Section 6 defines it:

“…’general revenue tax’ means any income tax, sales tax, or value-added tax levied by the government of the United States…” [italics mine]

Now go back to Section 5 and substitute the definition of “general revenue tax” for that term:

“No bill that provides for a new or increased income tax, sales tax, or value-added tax levied by the government of the United States shall become law unless approved by a two-thirds roll call vote of the whole number of each House of Congress….”

There it is: All that’s needed is approval of two-thirds of the members of each House and a new national sales tax and/or value added tax is imposed on us. And they can increase it, along with increasing the income tax, whenever they get two-thirds of the members to vote for it.

Section 5 also permits Congress to make laws to impose a new “end user sales tax” 4 which would replace the income tax – this “end user sales tax” is passed by a simple majority of both houses.

So! Compact for America’s balanced budget amendment provides two options to Congress:

· Two-thirds of the members of both Houses can impose a new sales tax and/or value-added tax in addition to the income tax; or

· A simple majority of both Houses can impose “a new end user sales tax” which replaces the income tax.

Which option will Congress choose?

Our Constitution Doesn’t Now Authorize a National Sales Tax or Value-added Tax

Article I, §8, clause 1 says:

“The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises…”

Principles of Compact for America say this clause already authorizes a national sales tax or value added tax. Board Vice-President Chip DeMoss said on Feb. 12, 2014:

“a national sales tax would be an “impost” (defined as a tax or similar compulsory payment) that is authorized under Article I, Section 8, Clause 1…” [see comments and scroll down after comment 19 till you see Chip DeMoss’ name].

We may not properly use DeMoss’ redefinition of “impost”!

We must use the definition of “impost” our Framers used: The Federalist Papers say an “impost” is a tax or duty on imports. Type imposts in the search box [at the link] and the Papers discussing imposts will come up. See for yourself that an “impost” is a tax or duty on imports.

Webster’s 1828 Dictionary defines “impost” as:

“…Any tax or tribute imposed by authority; particularly, a duty or tax laid by government on goods imported, and paid or secured by the importer at the time of importation. Imposts are also called customs.”

Do you see?

National sales taxes and value-added taxes are also not “excise” taxes. Excise taxes are a tax on a unit of goods – such as the infamous whiskey excise tax of 1791 which led to the Whiskey Rebellion. 5 It imposed a flat tax per gallon. The tax was payable for domestic whiskey at the distillery (§17 of the Act) and the casks were numbered and marked to show the tax had been paid (§19 of the Act).

“Taxes” at Art. I, §8, clause 1 refers to the apportioned direct tax provided for at Art. I, §2, clause 3 of our Constitution.

Our Framers were specific about the kinds of taxes Congress is permitted to impose. Congress does not have the power to impose any kind of tax it wants. Our Framers limited Congress’ taxing power to:

· the apportioned direct taxes at Art. I, §2, clause 3;

· the duties or imposts on imports at Art. I, §8, clause 1; and

· the excises at Art. I, §8, clause 1.

A sales tax is none of the above. A sales tax is a percentage of the retail price of goods. A value-added tax is a “turbo-charged national sales tax on goods and services that is applied at each stage of production, not merely on retail transactions” and raises a “gusher of revenue for spendthrift governments worldwide”.

We have never had a national sales tax or value added tax in this Country. Why? Because they are not authorized by the Constitution.

We were manipulated into supporting the 16th Amendment. We were told the income tax would “soak the rich” – and the envious drooled at the prospect.

And so again today, statists are seeking to trick us into supporting a national sales tax or a value added tax: first, by concealing it within the verbiage of the bill; 6 and then, once the trickery was exposed, by claiming the Constitution already authorizes these new types of taxes.

There is a Better Way: Downsize the Federal Government!

Our Constitution limits federal spending to the enumerated powers. The list of objects on which Congress may lawfully spend money is a short list. See the list HERE.

Most of what the federal government does today is unconstitutional as outside the scope of the powers delegated by the Constitution. Let’s cut federal spending by downsizing the federal government to its enumerated powers and constitutional limits.

Endnotes:

1 Congress’ spending is limited by the enumerated powers: If an object is on the list of enumerated powers (e.g., the patent & copyright office authorized by Art. I, §8, cl. 8), Congress may lawfully spend money on it. That’s how our Constitution already controls federal spending.

All versions of a balanced budget amendment change the constitutional standard for spending FROM whether an object is on the list of enumerated powers TO a limit on total spending where Congress may spend money on whatever they or the President put in the budget. This is what transforms our Constitution FROM one of enumerated powers only TO one of general and unlimited powers. And that is the true purpose of a balanced budget amendment. It has nothing to do with limiting federal spending – the pretended spending limits are fictitious since they may be waived whenever the feds [and 26 of the States] want to waive them.

2 Leon Drolet’s article of July 10, 2015, and Sam Easter’s article of July 8, 2015, about SB 306 pending in Michigan don’t mention the new national taxes.

3 Matthew Burns’ article about the hearing on HB 366 before N. Carolina’s House Judiciary Committee (which passed HB 366) doesn’t mention the new national taxes. Burns quotes the Bill’s sponsor, Rep. Chris Millis, as saying the problem is “Washington is unwilling or unable to limit itself.” So the solution is to massively increase Congress’ taxing powers?

4 “End user sales tax” is not defined in the balanced budget amendment.

5 Apparently, the practice of tarring & feathering “revenuers” began with the Whiskey Excise Tax.

6 The trickery was exposed over a year ago HERE. Since then, Compact for America has claimed the Constitution already authorizes the new taxes. Are we too gullible to be free? PH

August 26, 2015

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August 26, 2015 Posted by | Amendments to the Constitution, Balanced Budget Amendment, Chip DeMoss, Compact for America, enumerated powers | , , , , , , , , , , , , , , , , , | 31 Comments

Does the Creature Dictate to the Creator?

By Publius Huldah

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

WHO ratified the Constitution? WE THE PEOPLE, acting through special ratifying conventions called in each of the States.

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

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

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

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

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

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

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

The nullification deniers say, “YES!”

Manly men say, “NO!”

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

PH’s Article V Convention & Nullification Event in North Carolina on May 26, 2015

To my Friends in North Carolina: Do come! I would love to meet you. And if you don’t want to eat lunch, don’t.

To COS operatives & groupies: If you come and snip at me, I will show you how a Cold War Warrior (and womanly woman) with brains, knowledge, moral character, and a quick wit, fights.

Click on the photo to make it bigger.

 

MAY-7

May 18, 2015 Posted by | Uncategorized | , , , , , | 8 Comments

PH’s Article V Convention & Nullification Events in Indiana for May, 2015

I will speak on the deadly danger of an Article V convention, and of the two remedies our Framers actually told us to use when the national government usurps power, at the following events:

Date: Wednesday, May 13, 2015 in Auburn, Indiana
Host: DeKalb County 9/12 Group
Location: St. Andrew Evangelical Presbyterian Church, 320 W. 4th Street, Auburn, Indiana 46706                                   Time:  5:30 p.m. for food; 6:30 p.m. for meeting, EDT.

See Face Book page HERE

 

Date: Thursday, May 14, 2015 in Elkhart, Indiana
Host: TEA-MAC  with Constitutional Sheriff Brad Rogers.
Location:  Trinity United Methodist Church, 2715 E. Jackson Blvd., Elkhart, Indiana 46516
Time: 7:00 p.m. EDT

THE DEADLY DANGER OF ARTICLE V CONVENTION Add to DeliciousAdd to DiggAdd to FaceBookAdd to Google BookmarkAdd to MySpaceAdd to NewsvineAdd to RedditAdd to StumbleUponAdd to TechnoratiAdd to Twitter

May 8, 2015 Posted by | Uncategorized | , , , , , , , , , , , , , , , , | 4 Comments

PH’s Article V & Nullification Event in West Chester, Ohio

I will speak on the deadly danger of an Article V convention, and of the two remedies our Framers actually told us to use when the federal government usurps power, at the following event:

Date: Saturday, April 11, 2015
Host:  Building Blocks for Liberty
Location: Lakota West Freshman Auditorium, 5050 Tylersville Road, West Chester, Ohio 45069
Time: 10:00 AM – 12:00 PM Eastern Time

See website describing event HERE.

 

There will also be someone from COS there to tell you that all our problems can be fixed by having a CONVENTION where our Constitution will be “amended”.  The official COS line is that only amendments will be proposed.

But Jordan Sillars, Communications Director for the COS, let the cat out of the bag when he said:

“… 3. I think the majority of Americans are too lazy to elect honest politicians. But I think some men and women could be found who are morally and intellectually capable of re-writing the Constitution” [boldface mine].

So the Communications Director for the COS says our Constitution will be “re-written”.  HERE is the screen shot of Sillar’s comments.

And what will this “re-written” Constitution look like?  Michael Farris’ proposed “parental rights amendment” gives us an ominous warning of what anything Farris has a hand in will look like:  His proposed amendment, which he claims will protect parental rights, actually delegates power over children to the federal and state governments! Read it HERE.

And don’t forget, the re-written Constitution will have its own new mode of ratification.  It need not be 3/4 of the States – it can be any mode of ratification the drafters want.  E.g., the proposed Constitution for the Newstates of America is ratified by a Referendum called by the President.  Read the proposed Newstates Constitution HERE.

The reason these people want a convention is because a new Constitution can only be imposed at a convention.

Any needed Amendments can be made the way the existing 27 Amendments were made!  Congress proposes them and sends them to the States for ratification!  James Madison always said that when States want Amendments, they should instruct their Delegations to Congress to propose them.

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April 4, 2015 Posted by | Uncategorized | , , , , , , , | 2 Comments

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

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

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

By Publius Huldah

Our Declaration of Independence (2nd 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 (9th 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.

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 7th 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

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February 1, 2015 Posted by | Amendments to the Constitution, Article V, Article V Convention, Convention of States project, Delegates to a convention can't be controlled, Faithful Delegate Laws, New Hampshire Faithful Delegate Law, North American Union | , , , , , , , , , , , , , , , , | 53 Comments

Rob Natelson Perverts the Necessary and Proper Clause and Thinks in Circles

By Publius Huldah.

In former law professor Rob Natelson’s recent paper, “No, the Necessary and Proper Clause Does NOT Empower Congress to Control an Amendments Convention” [read it HERE or HERE], he makes several untrue statements and commits the gross fallacy of making a circular argument which begs the question.

Natelson is the intellectual guru of those pushing for an Article V convention. Among the false claims they make is that a convention will be controlled by the States, and Congress has nothing to do with it. 1

That false claim rests on Natelson’s (1) fanciful theory of “customs”, (2) his tortured interpretation of the necessary and proper clause, (3) his misrepresentations of Supreme Court cases, and (4) his crimes against the Laws of Logic.

I’ll show you.

What Does Article V Say?

Article V provides two methods of proposing amendments to our Constitution. Congress proposes amendments and submits them to the States for ratification; or Congress “calls” a convention if 2/3 of the States apply to Congress for a convention. All our existing 27 amendments were proposed using the first method. We have never had a convention under Article V – for good reason. 2

 

What does the Necessary and Proper Clause Say?

Article I, §8, last clause says:

The Congress shall have Power … “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department 3 or Officer thereof.” [boldface mine]

The Federalist Papers confirm the plain language of the Constitution: §8 delegates to Congress the power to make laws for executing the powers delegated to each branch of the federal government. 4

 

How Does the Necessary and Proper Clause Apply to Article V?

Article V delegates to Congress the power to “call” the convention. The necessary and proper clause delegates to Congress the power to make all laws necessary and proper to carry out its power to “call” the convention.

The April 11, 2014 Report of the Congressional Research Service 5 shows that Congress claims exclusive authority over both methods of amending the Constitution, and that Congress claims the power to organize & set up a convention.

But Natelson – mind, he is their “cutting edge intellectual” – insists that the necessary and proper clause does NOT delegate to Congress power to organize & set up an Article V convention.

Well, well! Let’s look at Natelson’s four arguments:

 

(1) Natelson’s Fanciful Theory of “Customs”

A convention called under Article V of our Constitution is governed by provisions in our Constitution: Article V and Article I, §8, last clause – the “necessary and proper” clause.

But Natelson has long insisted that customs followed at conventions during our “Founding Era” determine how a convention called under Article V will be organized & set up. He says in his paper:

“… An entity that calls an interstate convention always has been limited to specifying the time, place, and subject matter. It is the state legislatures who control selection of their own commissioners, thank you very much.”

“Founding Era” customs supersede our Constitution? And where does Article V say a convention called under Article V is an “interstate” convention?

 

(2) Natelson’s Tortured Interpretation of the Necessary and Proper Clause

Natelson says the necessary and proper clause:

“… is not a grant of authority, but a rule of interpretation. It tells us to construe certain enumerated powers as the ratifiers understood them rather than in an overly-narrow way. …” [emphasis mine]

A “rule of interpretation”? As authority for this claim, Natelson cites a book co-authored by his own illustrious self which you can buy for $34.99.

So! While Hamilton and Madison said in The Federalist Papers 4 that the necessary and proper clause was a “grant of power to Congress” to make the laws to execute the powers delegated;

and Madison and Thomas Jefferson said The Federalist Papers were:

“an authority to which appeal is habitually made by all, and rarely declined or denied by any as evidence of the general opinion of those who framed, and of those who accepted the Constitution of the US. on questions as to it’s genuine meaning” 6

Natelson says the clause is a “rule of interpretation” instead of a “grant of power”, and his $34.99 book is authoritative instead of The Federalist Papers.

 

(3) Natelson’s Misrepresentations of Supreme Court Cases 7

Natelson next asserts “the Necessary and Proper Clause does not extend to the amendment process” because when Congress acts on Article V, it is not a Department or Branch of the federal government. Instead, it is an “ad hoc assembly”.

Congress is sometimes not a branch of the federal government? It is sometimes an ad hoc assembly? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that!

But Natelson says he “knows” this from the “Founding Era record”, from subsequent history, and from decisions of the U.S. Supreme Court, such as U.S. v. Sprague (1931).

Of course, Natelson doesn’t show where the “Founding Era record” says this; he doesn’t show why assemblies which met during our “Founding Era” are relevant to a convention called under Article V; he doesn’t show where “subsequent history” says this; and he doesn’t tell the truth about the holding in U.S. v. Sprague.

The issue in U.S. v. Sprague was whether the 18th Amendment (Prohibition) should have been ratified by conventions in each State instead of by State Legislatures. The Supreme Court held that Article V “is a grant of authority by the people to Congress” and that the people “deliberately made the grant of power to Congress in respect to the choice of the mode of ratification of amendments”. Accordingly, Congress had authority to select ratification of the proposed Amendment by State Legislatures instead of by conventions in each State.

U.S. v. Sprague has nothing to do with what Natelson claims it says!

Yet, Natelson goes on to say he “knows” that Congress can’t pass laws structuring the Convention because a “long list of 20th century cases” holds that “ordinary legislation does not bind the amendment process. See, for example, Leser v. Garnett (1922).”

Congress can’t pass laws organizing a convention under Article V? The Constitution doesn’t say that! The Federalist Papers don’t say that! Madison’s Journal of the Federal Convention doesn’t say that! And the Supreme Court case Natelson cited doesn’t say it either!

Of course, Natelson doesn’t provide this “long list of 20th century cases”; and the one case he did cite, Leser v. Garnett, has nothing to do with Congress’ law making powers.

The issue in Leser v. Garnett was whether States – whose State Constitutions restricted voting to men – could ratify an Amendment to the federal Constitution which allowed women to vote. The Supreme Court held that when State Legislatures ratify proposed amendments to the federal Constitution, they are performing a federal function derived from the federal Constitution and it transcends any limitations imposed by State Constitutions. So! Provisions in State Constitutions restricting voting to men did not prevent State Legislatures from ratifying an amendment to the federal Constitution which would have supremacy over a contrary provision in the State Constitution.

 

(4) Natelson’s Fallacious Circular Argument Begs The Question (Petitio Principii) 8

Now let’s look at Natelson’s crimes against the Laws of Logic.

The fallacy of begging the question is committed when one assumes as true the conclusion he seeks to prove. An argument is circular when one seeks to prove the premise from the conclusion.

Natelson was supposed to prove that the necessary and proper clause does not give Congress power to make laws to organize & set up a convention under Article V.

But – as you have seen – he didn’t prove it. So he assumed it to be true. He asserts as true:

“The framers inserted the ‘Convention for proposing Amendments’ in the Constitution to provide the states with a way of obtaining constitutional amendments without federal interference.” [emphasis mine]

Since he assumes this to be true – he concludes that the necessary and proper clause can’t give Congress power to make laws to organize & set up a convention under Article V. He says:

“Why would the framers place in the Constitution a method by which Congress could largely control a convention created to bypass Congress?”

Do you see? He concludes that the necessary and proper clause doesn’t give Congress the power to make laws to organize & set up a convention because he has already assumed as true that the convention method was put in so States could get amendments without Congress’ control.

 

Conclusion

Yet, Natelson’s work is the “authority” on which those who seek to force an Article V convention on us rely – a slender reed, to be sure. Take heed, America!

Endnotes:

1 Above all else, REMEMBER THIS: Whether Congress or the States organize & set up a convention is NOT the critical issue. In either case, the delegates – whoever selects them – are vested with that inherent sovereign right to throw off our Constitution and propose a new one (Declaration of Independence, 2nd para). The new one will have its own new mode of ratification.

2 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 (9th para)

James Madison writes in his Nov. 2, 1788 letter to Turberville that an Art. 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, he 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…”

3 In Federalist No. 48, Madison refers to the 3 branches of the fed gov’t as “departments”.

4 Federalist No. 33 is devoted to the necessary and proper clause. Hamilton writes:

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? …. But the same process will lead to the same result, in relation to all other powers declared in the Constitution. And it is EXPRESSLY to execute these powers that the sweeping clause, as it has been affectedly called, authorizes the national legislature to pass all NECESSARY and PROPER laws…” (3rd para) [caps Hamilton’s; boldface mine]

In Federalist No. 44, under “The SIXTH and last class” of powers, Madison refers to the necessary and proper clause as a grant of power to Congress by which efficacy is given to all the rest of the powers and that “…Without the SUBSTANCE of this power, the whole Constitution would be a dead letter….” [caps Madison’s; boldface mine].

5 HERE is the CRS Report. The Report exposes as false the assurances that the States would be in control of a convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” (page 4)

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4)

“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37)

“…A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?. . .” [then follows a discussion of different views on this undecided issue] (page 41)

“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)

Page 40 of the Report shows there doesn’t seem to be any:

“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “

So! As the CRS Report states on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

Do you see? But by then, it will be too late to stop it.

Furthermore, as all lawyers should know, since the power to call the Convention is delegated to Congress, the supreme Court is unlikely to interfere with Congress’ decisions in this regard because it is a “political question” for Congress alone to decide. See short discussion of “political questions” HERE.

6 See the Minutes of March 4, 1825 of the Board of Visitors of the University of Virginia (Thomas Jefferson & James Madison were present) where they acknowledged the authoritative status of The Federalist Papers and made them one of the texts books for the Law School.

7 See Robert Brown’s astute discussion of this issue in Mr. Brown’s Face Book Note HERE.

8 Give your Family and Country a wonderful gift: Everybody LEARN LOGIC – it’s fun to play the “spot the fallacy” game! These delightful books are marked 12 years and up, but much younger children can learn the fallacies. My Papa started teaching me before first grade. Look at The Fallacy Detective and The Thinking Toolbox. PH

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January 13, 2015 Posted by | Article V, Article V Convention, Convention of States project, Necessary and Proper clause, Rob Natelson | , , , , , , , , | 19 Comments

Straight Talk About An Article V Convention

By Publius Huldah

This speech was presented to Campaign For Liberty – Memphis on March 24, 2014. It exposes some of the false claims made by those pushing for the so-called “convention of states”. 1

Below are hyperlinks to the exhibits referred to in the speech. Additional resources are also included.

The one page Chart which illustrates our Declaration, Constitution, and federal system is HERE.

The Congressional Research Service (CRS) Report 2 cited in the speech was dated March 7, 2014. CRS’s revised Report, dated April 11, 2014, is HERE.   The Report exposes as false the assurances that the States would be in control of a convention. The Report says:

“First, Article V delegates important and exclusive authority over the amendment process to Congress…” (page 4)

“Second . . . Congress has traditionally laid claim to broad responsibilities in connection with a convention, including . . . (4) determining the number and selection process for its delegates; (5) setting internal convention procedures, including formulae for allocation of votes among the states; . . .” (page 4) 3

“. . . [In previous bills filed in Congress] [a]pportionment of convention delegates among the states was generally set at the formula provided for the electoral college, with each state assigned a number equal to its combined Senate and House delegations. Some bills included the District of Columbia, assigning it three delegates, but others did not include the federal district. . .” (page 37; see also page 41)

“. . . A related question concerns vote allocation in an Article V Convention. Would delegates vote per capita, or would each state cast a single vote, during the convention’s deliberations, and on the final question of proposing amendments?. . .” [then follows a discussion of different views on this undecided issue] (page 41)

“Article V itself is silent on membership in an Article V Convention, so it is arguable that Congress, in summoning a convention to consider amendments, might choose to include the District of Columbia and U.S. territories as either full members at a convention, or possibly as observers. As noted previously, some versions of the Article V Convention procedures bills introduced in the late 20th century did provide for delegates representing the District of Columbia, although not for U.S. territories . . .” (page 42)

Page 40 of the Report shows there doesn’t seem to be any:

“. . . constitutional prohibition against [U.S.] Senators and Representatives serving as delegates to an Article V Convention. . . “

So! As the CRS Report states on page 27:

“In the final analysis, the question what sort of convention?” is not likely to be resolved unless or until the 34-state threshold has been crossed and a convention assembles.”

Do you see? But by then, it will be too late to stop it. HERE is former US Supreme Court Chief Justice Warren Burger’s letter confirming this. 4

The text of the “parental rights” amendment is HERE. For two papers showing how Michael Farris’ proposed amendment delegates power over children to the federal and State governments, go HERE  and, for the follow up paper, HERE.

To see how six of Mark Levin’s so-called “liberty amendments” do the opposite of what he claims, go HERE.

To see – on one page – proof of the original intents of the “interstate commerce”, “general welfare”, and “necessary and proper” clauses, go HERE.

The proponents of a convention portray the States as victims of federal tyranny. But the Truth is that the States voluntarily surrendered their retained powers, and the natural rights of The People, TO the federal government. And they did it for federal funds. Today, States get from 20% (Alaska) to 45.3% (Mississippi) of their State budgets from the federal government. State governments don’t want to rein in the feds! The people who run your State will do anything to keep their federal funds. HERE is the Pew Report.

Our Framers – those who actually signed the Constitution – NEVER said the purpose of amendments is to rein in the feds if they usurp powers. What they actually said is:

  • amendments remedy defects in the Constitution (Hamilton at the federal convention on Sep. 10, 1787);
  • useful amendments would address the “organization of the government, not … the mass of its powers” (Federalist No. 85, 13th para); and
  • “amendment of errors” & “useful alterations” would be suggested by experience (Federalist No. 43 at 8.)

HERE are the Articles of Confederation. Note that Art. XIII required approval of amendments by every State.

HERE is the Resolution, made by the Continental Congress on February 21, 1787 (p 71-74), to call a convention to be held at Philadelphia:

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

HERE is James Madison’s letter of Nov. 2, 1788 to Turberville. Copy it to word processing, make paragraph breaks, & highlight it. Madison NEVER supported the convention method of amending our Constitution.

HERE is Joe Wolverton’s article about the Socialists’ involvement in the push for a convention.

HERE is the Constitution for the Newstates of America. Article XII addresses ratification by a referendum called by the President. Read HERE about the proposed Constitution for the New Socialist Republic in North America. Read them and see what is being planned for you by people you think are on your side.

HERE is the screen shot of Jordan Sillars’ comment re re-writing the Constitution.

For Q’s & A’s on this issue, go HERE.

Endnotes:

1 There is no such thing as a “convention of states” to propose amendments. The term is a marketing gimmick used by proponents of an Article V convention to manipulate people into believing that the States would control an Article V convention – from start to finish.

Article V, US Constitution, provides two methods for proposing amendments to the Constitution:

1. Congress proposes amendments and submits them to the States for ratification [the method we used for our existing 27 Amendments]; or

2. Congress calls a convention for the purpose of proposing amendments [for good reason, we have never used this method].

2 Even though we have never had an Article V convention; Congress has examined procedures for “calling” a convention so as to be ready if the need arises. The CRS Report proves that Congress has historically viewed its powers respecting “calling” a convention as exclusive and extensive. I thank Robert Brown for bringing the CRS Report to my attention.

3 The position Congress has historically taken in this regard is totally consistent with Article I, Sec. 8, last clause, which delegates to Congress power to make all laws “necessary and proper” to carry out the power vested in Congress at Art. V to “call” the convention.

4 Folks! For the sake of your Posterity, you must understand this: After a convention is convened, the delegates can do whatever they want – including coming up with an entirely new Constitution with its own new method of ratification. Chief Justice Burger wrote in his June 22, 1988 letter to Mrs. Phyllis Schlafly:

“… there is no effective way to limit or muzzle the actions of a Constitutional Convention. The Convention could make its own rules and set its own agenda. Congress might try to limit the Convention to one amendment or to one issue, but there is no way to assure that the Convention would obey. After a Convention is convened, it will be too late to stop the Convention if we don’t like its agenda. The meeting in 1787 ignored the limit placed by the Confederation Congress “for the sole and express purpose. . .”

The federal convention of 1787, which was called by the Continental Congress “for the sole and express purpose of revising the Articles of Confederation”, should serve as a warning: The delegates to the 1787 convention ignored their instructions from the Continental Congress [and from their States]; ignored Art. XIII of the Articles of Confederation which required the States to obey Congress on matters covered by the Articles, and wrote an entirely NEW Constitution with a NEW method of ratification which required only 9 of the 13 States for ratification.

Credits:  Many thanks to Devvy Kidd, Blue Tail Gadfly, and M. Craig Elachie, from whom I lifted the very best lines in the speech. PH

Posted October 11, 2014.

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October 11, 2014 Posted by | Amendments to the Constitution, Article V, Article V Convention, constitutional convention, Convention of States project, Federal Convention of 1787, James Madison, Jordan Sillars, Liberty Amendments, Mark Levin, Michael Farris, Necessary and Proper clause, Phony right wing, re-writing the Constitution, Retained Powers, The Liberty Amendments | , , , , , , , , , , , , , , , , , , , | 15 Comments

What Should States Do When the Federal Government Usurps Power?

Advice From James Madison, Father of the U.S. Constitution.

By Publius Huldah

1. What can a State – or several States – do to resist encroachments & usurpations by the federal government?

2.  Federalist No. 46  (7th para) discusses how individual States or several States carry out resistance to the federal government’s unconstitutional encroachments. If a particular State takes an action which the federal government doesn’t like, but which has the support of the People of that State, the federal government can’t do anything about it unless it is willing to use force.

When several States oppose an unconstitutional encroachment by the federal government, Madison says they have powerful means of opposition:  the disquietude of the people, their repugnance (e.g., baby-killing enshrined into public policy), the Peoples’ refusal to co-operate with the officers of the federal government; the opposition of the State officials; and all those legislative devices State Legislatures can invent to thwart & impede the federal government in its unconstitutional schemes.

So, in para 7, Madison contemplates that not all States will oppose unconstitutional encroachments by the federal government. But he shows that this need not impede the States who do.  Such States need not implement in their States the federal government’s lawless usurpations.  Have we forgotten how to just say, “NO! You have no authority under the Constitution to do this, and the Sovereign State of X and the Sovereign People of the State of X won’t permit this.”  If we have taken the Oath to support the Constitution (Art. VI, clause 3), then we are bound by Honor to support it!

3.  Note that Madison doesn’t say the States should file lawsuits in federal court. And WHY would Sovereign States, which formed a federation for the limited purposes enumerated in Art. I, Sec. 8, U.S. Constitution; ask one branch of the federal government (judiciary) to opine on whether a “law” approved by the two other branches (legislative & executive) exceeds the enumerated powers of Congress or encroaches on the reserved powers of the States and the People (10th Amendment)?  All three branches of the federal government have been unified against The Constitution, the States, and the People for a very long time!  Why do States put themselves in the position of supplicants to a Court which has already shown itself to be contemptuous of the Constitution, and of the States’ and The Peoples’ reserved powers?

Furthermore, the Supreme Court is not even the ultimate authority on the meaning of the Constitution!  Alexander Hamilton said federal judges may be impeached & removed for usurpations (Federalist No. 81, 8th para); the People are “the natural guardians of the Constitution” as against federal judges “embarked in a conspiracy with the legislature”; and the People are to become “enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.”(Federalist No.16, 10th para).

4.  In para 8, Madison discusses a “general alarm” among the States as to encroachments by the federal government. Here, Madison contemplates concerted “plans of resistance” among the States; and Madison says it may come to a “trial of force” if a crazed federal government doesn’t back down. In para 10, Madison says that the federal government’s “schemes of usurpation will be easily defeated by the State governments, who will be supported by the people”.

5.  In para 9, Madison discusses the federal government’s initiation of a “trial of force”.   But who would fight for the federal government?  Madison spoke of the regular Army as the force used by the federal government.  But that has been the Army of our children and neighbors’ children!  [We need not fear them unless we permit aliens to serve in our armed forces.]   The federal government does have, here & there, those heroic, noble, and brave men who shoot nursing mothers in the forehead, young boys in the back, and gas & apparently incinerate men, women & children. How many are they?  Then there is Obama’s personal “civilian national security force”.  Has it been established?  Even so, would they be honorable men, or another collection of thugs?  In any event, Madison said, “…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.”

6. When we quote James Madison and The Federalist Papers on what States may do when the federal government has encroached upon the powers reserved by the States and the People; we quote a high Authority on The Constitution. James Madison is the Father of the Constitution,  and the author of many of the Federalist Papers.   States act lawfully when they follow such  guidance of James Madison. When the federal government descends into lawlessness & tyranny, The States and The People may protect and preserve their Constitution – as they are already sworn to do.

7. Yes, the ultimate authority resides in The People.  But this does not mean that The People should – or need to – initiate a show of force.  Remember the Rev. Dr. Martin Luther King!  He put on his clerical collar and went out into the streets with others to protest State LAWS which enforced segregation.  They used non-violent civil disobedience:  Black people sat down at “white’s only” lunch counters!  Black people sat in the front of the buses.  They did not initiate force.  The moral superiority of their position could not be denied, and they won.

8.  We have Our sacred Constitution.  The most important concepts for you to learn are these:  (1) ENUMERATED POWERS (2) Why neither the “GENERAL WELFARE“, the INTERSTATE COMMERCE nor the “NECESSARY & PROPER” [see linked paper at para 13] clauses authorize Congress (or the President or the FEDERAL COURTS ) to exceed their enumerated powers (3) The true meaning of the “RULE OF LAW” and how that differs from the “Rule of Men”; (4) What is “FEDERALISM“, and (5) The origin of our Rights and why you must NEVER speak of  “constitutional” rights. My papers on RIGHTS explain the moral superiority of our position. You must learn why our position is morally superior to that of the statists. And you must be prepared to explain it at all times.

May God be merciful and grant us national repentance and a peaceful political resolution.

April 3, 2010; revised April 16, 2011

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April 3, 2010 Posted by | Federalist Paper No. 46, James Madison, Nullification, Resistance to tyranny, States Retained Powers, Usurpations of power, What States must do when the feds usurp power | , , , , , , , | 19 Comments

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