VOTING REFORM: A Progressive Voting Scheme

     by Diane Rufino

This article follows the one I previously wrote, entitled “Who is Really Disenfranchised?”  In that article I talked about the incessant claims of  ”disenfranchisement” of minority voters when no such disenfranchisement exists nor any intent to do so. I argued that those Americans who are really “disenfranchised” today in this country are the taxpayers.  These are the Americans who really have a “fairness” and “equality” argument.  These are the ones whose interests are not being fairly or equally protected by a government that is required to do so.  These are the Americans that government wishes to exploit and the ones that fellow Americans want to take advantage of.

In this article, I will offer a remedy to safeguard their legitimate constitutional rights.

Claims of “disenfranchisement” of minority voters lack merit and are based on a hypothetical negative impact that common sense, neutral, and necessary voter laws may possibly have upon minorities. It is another attempt to find racial intent where none exists.  Voter ID laws require a voter to present an ID in order to vote (with suitable provisions should a person not have one), yet Democrats and civil rights groups fight such laws with great energy. Common sense Americans want protective laws to ensure the integrity of the voting system, so that we have “one person, one vote” and every vote counts equally. The laws are reasonably related to the problem of voter dilution where a person’s legitimate vote is diluted by those cast fraudulently.  No one should lost the full force of their vote because Mickey Mouse casts a vote or because dead people are voting. Most people don’t see any undue burden on a person to show an ID to vote.  People can barely get by in today’s world without one. For example, a person needs to show an ID to get a driver’s license, open a bank account, buy alcohol, buy cigarettes, apply for welfare, apply for food stamps, sign up for healthcare, cash a check, write a check, purchase a firearm, make a significant credit card purchase, rent an apartment, be admitted to a hospital, enter certain federal buildings, and get a marriage license. Yet having to produce one to vote once every couple of years is somehow a problem. They claim it’s ‘racist.’  This is assuming that minorities don’t feel they need to get any ID at all in their lives, even though every single American needs an ID to conduct some kind of business or in general to simply prove that he is who he says he is. This is a speculative argument and one that most people don’t buy. Yet the tax laws that require working Americans at a certain income level to turn over a chunk of their earned income to the government are an outright disenfranchisement of property. There is no speculation. This is the government determining that some Americans must work about 4 months of the year – from January until April, sometimes May –  for the government and there is nothing they can do about it. They must work, as indentured servants, to pay Uncle Sam. The risks are criminal penalties and incarceration.

The liberal media doesn’t talk about this “disenfranchisement” because their party is of the belief that they have a RIGHT to take whatever money they need from Americans who are condemned to be taxpayers.  Everyone talks about the 14th Amendment and the “Equal Protection” clause, but no one talks about the 13th Amendment (which abolished slavery and indentured servitude).  The “disenfranchised” have no meaningful advocates.  They are soon to be “minority” upon which the majority will soon completely oppress. It is their lot in life to support a government that rarely gives them anything in return, other than roads, public parks, and decaying public schools. It is their lot in life to support others who they have nothing in common with and in fact, are ones they have little respect for.  It is their lot in life to support government programs that stand for everything that they abhor –  programs that dumb down society, remove personal responsibility, lead to increasing levels of crime and decay, result in moral depravity, and yes, highlight racial differences by establishing different sets of rules for different groups – all in the name of “equal opportunity.”  It is their lot in life to finance the destruction of the United States by taking us from the once-proud “Land of the Free and Home of the Brave” to “Land of the Depraved and Home of the Enslaved.”

Actually, the liberal media does talk about those ‘disenfranchised’ Americans. It wants them to pay more.  As the number of persons paying federal income tax to support a rapidly growing US population decreases, the amount of money needed will increase. Democrats won’t require their voters to pay (because once an “entitlement” is given, it is very hard to take it away), so they will look for ways to soak more out of those who are working and earning enough.  “Enough’ is the key term.  Those men and women working hard to support their families, who have put the time and energy into their education and have sacrificed to develop a career, and who are trying to realize the “dream” that they so diligently sacrificed for, have no say in what is “enough.”  What is “enough” for them and their family has no relevance. The fact that they might want to have more children (which would require them to buy a larger house and put more and more money aside for college educations) means nothing to the government.  The fact that they might have $100,000 in school loan debt which they want to pay off as fast as possible means nothing.  Doing the right thing, investing in education, buying and improving property, and raising responsible children means nothing to the government.

“Class Warfare” is the new term for “Equality.”  The poor can only improve their lot by making the richer less well-off.  That sounds fair, doesn’t it?  In whose eyes?  For which party?  In some cultures, it is unheard of to look at the finances and the “stuff” that other people have. In fact, that was the mindset of our earlier (legal) immigrants.  That was the attitude of my parents and grandparents. That was the mindset of our Founders. They wisely protected all those opportunities for individuals to attain the same station in life. We aren’t supposed to covet the things that others have.

“Three years after the ‘Hope and Change’ president took office, Hope turns out to mean high taxes and lots of regulations, and Change consists of celebrating the government’s takeover of General Motors.. The Great Uniter is all about class warfare…  It’s one thing to beat up on the big banks that caused the financial crisis; it’s another to hammer any family that earns a combined income of $250,000 a year as “millionaires,” pretending they didn’t work for their success and thus ought to pay the government more hard-earned money.”   (Charles Gasparino).

Barack Obama based his entire State of the Union address around envy, pointing to tax disparity as proof.  As Gasparino says: “The tax code is indeed a glaringly obvious problem. It pits every constituency against the rest, and Leftists are especially adept at exploiting that to wage class warfare.”  Obama’s tired rhetoric continues to be that the rich don’t pay their “fair share.”  In his State of the Union address, he stated: “If you make $100,000 – 250,000 a year, like 98% of American families do, then your taxes shouldn’t go up.”  Where did he get that data?   If that were indeed the case, we wouldn’t need entitlements and there would be no class warfare, right?  Obama continued: “You’re the ones struggling with rising costs and stagnant wages. You’re the ones who need relief.”  What he neglected to mention is that it is his administration’s own policies that are causing such struggles.  In other words, he wants the wealthy to do more to support his failing government policies. He wants the wealthy to relieve his corrupt policies of blame.

The money that goes to the federal government is a combination of income tax and payroll taxes.  Those who want the rich to pay more attack the amounts they pay in capital gains and estate taxes.  They pay too little, they cry.  Obama mislead the American people by alleging that Warren Buffett pays as much in income tax as his secretary. He provided a new sound-bite for the class-warriors when he said: “You can call this class warfare all you like, but asking a billionaire to pay as much as his secretary is simply common sense.” First of all, Buffett’s secretary, whom Obama deceptively tried to pass off as being in the same category as the typical office secretary that many of our mothers were, is believed to earn between $200,000 and $500,000 per year.  I have a PhD, 2 Masters, and assorted other degrees and I will never see that kind of salary in my life.  Second of all, the amount each person pays is automatically progressive according to that person’s income.  A billionaire who pays 30% in taxes clearly pays tons more in taxes than a secretary who pays 30% on $200,000.  It’s just simple math. Buffett says that the rich have lobbyists to try to lower the estate and capital gains taxes and that’s why they should be vilified and that’s why the middle and poor class are right in hating them, but he misses the point. Everyone paying taxes is paying at least a “fair share,” even if they are all paying the same percentage and sometimes even if they are paying even a little less.  What “services” does a man get back from the government when he pays $9 million in taxes, for example [30% of $30 million in taxable income]. The bottom line is that everyone paying taxes receives the same benefits from the government. Well, that isn’t exactly true, right?  Those who don’t work and those earning below the poverty limit certainly receive a whole lot more services and benefits.

Mitt Romney has released his tax records and is being criticized as having paid “too little in income tax.”  Certainly he is a wealthy man; he earned more than $20 million in taxable income in each of the last two years for which he released returns.  But he paid exactly what he was required under the law.  Because his income was entirely from short-term capital gains (the money earned on the profit realized on the sale of a non-inventory asset that was purchased at a lower price), his tax rate was around 15%.  Unnoticed and therefore not taken into consideration by those criticizing him, however, is that most of that money was taxed already at the corporate rate of 35% before it was ever paid to him. So the government certainly got its money.  While Democrats criticize Romney’s unfairly low burden and point to this as the very reason to attack the rich, when John Kerry paid only 13%  in 2004, they remained noticeably silent. Americans have to get over the mindset that just because a man is wealthy, he must have become so because he screwed over poorer people and therefore it’s OK to hate him, envy him, and take his money. We could easily say the reverse..  Poorer people tend to stay in their socioeconomic class and not move upward because they’re screwing over richer people.

The sad thing is that Americans are so out of touch with their founding documents and have become so ignorant with respect to the values on which our country was founded that they aren’t posing the most fundamental question of all: “Why should the government even have the right to tax so many aspects of an individual’s property?”  The layers of taxation is incredible. The government is charged with securing an individual’s “life, liberty, and property,” and should always be looking for ways to allow Americans to keep what is theirs under natural law and not for more and more ways to “convert” the people’s money to its own uses.  Arthur Brooks, President of the American Enterprise Institute, is bothered by the fact that most people only seem to care about the fairness of the tax system as it relates to how much taxes rich people are paying. He explains: “When a government that has overspent for years turns to tax increases instead of spending cuts simply for the sake of “fairness,” it weakens free enterprise, lowers opportunity and impoverishes us in many ways.”

According to Obama and his supporters, there are Americans who aren’t paying “their fair share.”  But the facts and figures simply don’t back him up.  The top 1% of Americans pay 38% of the federal income tax burden.  The top 5% of Americans pay 60% of the federal income tax burden.  The top 10% of Americans pay at least 70% of the federal income tax burden. The middle class pays 15.1% of the federal income tax burden.  And half of Americans don’t pay any federal income taxes at all and contribute essentially nothing to the funding of our government.  In fact, a good chunk of that last category actually “makes money” under our current tax system. It is, after all, a wealth redistribution scheme. And that, by definition, is forcing some people to work to support others, which is unfair and unconstitutional. But perhaps Obama was referring to the capital gains tax not being high enough. The short-term capital gains tax is already 33%  – the highest since 1978. (Long-term is 15%, which was a result of the 2003 Bush tax cuts, and then extended by Congress through 2012).

How dare US politicians exploit and intensify class warfare. It was class warfare – the hatred for the rich – which led to the 16th Amendment and then the vast expansion of government.  Why single out the rich?  Why not look at ordinary tax cheats?  According to documents obtained through the Freedom of Information Act, more than 450,000 active and retired federal employees failed to file tax returns in 2005.  Those taxes totaled over $3 million. Timothy Geithner, Obama’s Treasury Secretary, failed to pay his taxes, and so did Rep. Charles Rengel.  There are many others.  Former IRS Commissioner Charles Rossotti testified back in 2002 that there is a “tax gap,” which is the amount of tax owed that will never be collected.  In 2002, that amount was a whopping $30 billion. Recently, the IRS reported that 36 of Obama’s executive office staff owe some $833,970 in back taxes, and thousands of federal employees owe back taxes totaling $3.4 billion. Why aren’t tax cheats the subject of the president’s economic recovery policy?  Isn’t this what we are talking about – or should be talking about – when we refer to those “not paying their fair share.”  Why is it always the rich who are to blame when there isn’t enough money for government to spend recklessly?

Note the hypocrisy of our President.  On Dec. 5, 2008, Obama’s transition team told Finance Committee staff that Geithner had not paid social security or self-employment taxes on income received from the International Monetary Fund from 2001 to 2004.  In 2005, the IRS audited Geithner for tax years 2003 and 2004, and he was ordered  to pay back taxes and interest — but no penalties!!  Imagine that.  Even after a pattern of willingly and intentionally not paying taxes for 4 years, he was not required to pay any penalties, which would have totaled  $16,732.  But wait a minute, the IRS only looked at 2003-2004. Geithner was not compelled to pay taxes for 2001 and 2002. [The statute of limitations had expired, and the IRS did not have the authority to enforce any policies in these years.]  The Senate Finance Committee characterized those errors as “honest mistakes.”  Does this sound reasonable or does it sound like political cronyism?  In all fairness (cough, cough), when Obama was getting ready to nominate him to the Treasury position, Geithner was “pressured” to voluntarily pay those taxes, but all he paid was $25, 970 as a total for both years.

Tim Geithner repeatedly failed to adhere to tax law, from 2001 through 2004. He is a bona fide serial tax cheat. If it weren’t for an IRS audit, he would never have paid any taxes. He was hoping to take advantage of the statute of limitations and cheat the system. Only when the opportunity to become Treasury Secretary presented itself  did Geithner pay his back-taxes from the former two years. Learning of his pattern of cheating, President Obama chose to ignore them and nominated him to the post anyway – with the Senate’s consent, of course.

And what about charitable giving?  In 2011 alone, Mitt Romney gave more than 19% of his income to various charities, including the Mormon Church.  He donated more in charitable giving than in federal taxes, although the latter wasn’t a donation but rather a legal obligation, under penalty of fines and jail time (that’s only because he’s not a Democrat). The Obamas, on the other hand, gave just 1% of their income to charity between 2000 and 2004, but increased it to 5% by 2007.  Joe Biden gave $369  (you read that correctly) the year before becoming vice president, and just $5,350 in 2010.  ”A reasonable conclusion is that because “liberals” are so miserly with their money, they think the only way to “spread the wealth” around is through forced taxation.” (The Patriot Post).

Indeed, Obama has a monopoly on hypocrisy.  It oozes from his lips every time he speaks. But the majority of Americans are too brainwashed or ignorant to know this to be true.  Near the end of his State of the Union address, he said: “No one built this country on their own. This nation is great because we built it together.  We’re great because we have each other’s backs.”  What he really was too cowardly to say was this: “The rich must do more to have the backs of the poor.”  (Wow, that rhymes).

Not one time in any of his speeches has he addressed how the “lifestyle freeloaders” help benefit anyone other than themselves?  What should they be required to be disposed of in order to serve the nation?  The taxpayers are disposed of their earnings (property) and their precious time (working 3-4 months to pay Uncle Sam).  The conversations coming from our President and his party have to stop being one way.  Cutting entitlement and other government programs will cut the need for increasing tax revenue and perhaps even do something magical, like force people to take education seriously (have you spent any time in the public school system lately and seen which students aren’t putting any effort in because they already know where their paychecks will be coming from?), force people to develop skills and become ambitious, curb teen pregnancy, prevent so many women from having babies when they aren’t married, and lower the out-of-control birthrate of those who can’t raise their children properly and make sure they go to school and excel. People will finally start doing the responsible thing, such as applying themselves in school, taking care of their health, taking care of their communities (because they have to work to pay for upkeep and repair, to protect their investments), and having only as many children as they can reasonably support and raise. But these common-sense ideas are never discussed by a Democrat. Why not?  Imagine the great benefit to society if these things could happen. So many problems would be solved.  In fact, their knee-jerk response to such talk is to cry “racism” – even though color has nothing to do with this discussion.  But they will find a way to make it about color… they always do.  And even if they claim that that such a solution would “disenfranchise” people of color, the next question should be “why?”  Then they should do some further objective analysis.  Because, as Obama said in his State of the Union address…  we all must make this country together – not just one group or another.

Newt Gingrich recently said: “What allows one group of people to believe they have the right to determine what’s best for the lives of others and the right to take what they need for that agenda?  We have gone the full spectra in the rights of man with respect to government: We replaced the divine right of Kings with the divine right of the individual to the divine right self-righteous groups.”

Members of society must accept that individual effort determines income, and that all have a right to enjoy the fruits of their effort. Equality is in the opportunity, not the status. Equality of wealth will ultimately make every man poor and sluggish and equality of social condition will ultimately lead to complete social decay.


Earlier I stated that the government has an obligation to protect the rights of citizens equally.  After all, it expressly says so under the 14th Amendment. This amendment, after all, has not only been used to give rights to every group under the sun but it has also been used to give spirit to the Court’s broad powers as judicial activists.  Schools were not only desegregated (legislative segregation was ended under Brown), but they were judicially mandated to use bussing and other artificial means to mix the races and reach acceptable “quotas” in school districts, even if it meant using extensive plans to move students around.  Surely, the “Equal Protection” clause must extend to the most basic of fundamental rights….  the right to property.  After all, men and women convert the fruits of their mind and their creativity (intellectual property), the benefits of their personality, ethics, etc (good will, which is also an intellectual property), and the fruits of their labor into compensation. Salaries and other investments are converted “property.”

The Constitution was written for those in whose name it was cast – “We the People.”  Why was it written for the People?  As the Preamble explains, it was written so that people and their posterity would know what to expect from their new government. Basically the government would protect citizens from internal strife and from attack from the outside, but most importantly, it would defend individual liberty. In other words, the Founders did not establish the Constitution for the purpose of granting rights but rather for the purpose of protecting rights.

Thomas Jefferson, who drafted our Declaration of Independence, understood that there are certain rights fundamental to the idea of man being free and because it is our Creator who is responsible for life and because those rights flow from our humanity, governments have no power to take them away and instead, must be obligated to protect them. Drawing inspiration from philosopher John Locke, whom he studied intently, Jefferson believed that government is morally obliged to serve people, namely by protecting life, liberty, and property, and our government, as based on limited powers and the principle of checks and balances, was crafted to protect these fundamental rights.  The Declaration was initially written to read: “We hold these truths to be self-evident, that all men are created equal, endowed by the Creator with certain natural rights that among these are the Enjoyment of Life and Liberty, with the Means of acquiring and possessing Property, and pursuing and obtaining Happiness and Safety.”  This language was believed, especially according to Virginia’s George Mason, to be a literal improvement of Locke’s phrase “Life, Liberty, and Property.”

John Locke stressed that private property is absolutely essential for liberty. In his Treatise on Government, he explains that the primary reason for men to organize themselves into societies and to institute a common government is for “the Preservation of their Property.”  He wrote: “Every Man has a Property in his own Person. This no Body has any right to but himself. The Labour of his Body, and the Work of his Hands, we may say, are properly his.” Certainly, the right to property and the right to the fruits of one’s labor (including compensation) are as fundamental a right as the right to life itself.

Locke believed people legitimately turned common property into private property by mixing their labor with it, improving it.  He insisted that people, not rulers, are sovereign, which also happens to be the bedrock principle underlying our Constitution.  Government, Locke wrote, “can never have a Power to take to themselves the whole or any part of the Subjects Property, without their own consent.  For this would be in effect to leave them no Property at all.” He makes his point even more explicit: rulers “must not raise Taxes on the Property of the People, without the Consent of the People, given by themselves, or their Deputies.”  Thus, according to Locke, an individual’s labor, his intellect, his personality, the good will he earns through his honest and ethical conduct, and the fruits of all of these are his PROPERTY and are to be protected with the greatest zeal by any legitimate government.

Locke went further and affirmed an explicit right to revolution: “Whenever the Legislators endeavor to take away, and destroy the Property of the People, or to reduce them to Slavery under Arbitrary Power, they put themselves into a state of War with the People, who are thereupon absolved from any farther Obedience, and are left to the common Refuge, which God hath provided for all Men, against Force and Violence.”

In 1772, John Adams wrote “The Rights of the Colonists,” which he delivered to a Boston Town meeting.  He started his historic document with these words: “Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.”  As the colonists were British subjects at the time, Adams further wrote in his essay: “The absolute rights of Englishmen and all freemen, in or out of civil society, are principally personal security, personal liberty, and private property.”

Arthur Lee of Virginia (1775) wrote: “The Right of property is the guardian of every other Right, and to deprive the people of this, is in fact to deprive them of their Liberty.”  William Blackstone, the great British legal scholar, wrote: “So great is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community.”  Ayn Rand, author and philosopher, wrote: “Just as man can’t exist without his body, so no rights can exist without the right to translate one’s rights into reality, to think, to work and keep the results, which means: the right of property.”  Thomas Jefferson wrote: “To take from one because it is thought that his own industry and that of his father’s has acquired too much, in order to spare to others, who, or whose fathers have not exercised equal industry and skill, is to violate arbitrarily the first principle of association – ‘the guarantee to every one of a free exercise of his industry and the fruits acquired by it.’”  He also said, in his 1801 inaugural address: “A wise and frugal government, which shall restrain men from injuring one another, shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of the laborer the bread he has earned.”  And finally, Frederic Bastiat, a French economist, wrote: “Each of us has a natural right – from God – to defend his person, his liberty, and his property. These are the three basic requirements of life, and the preservation of one is completely dependent upon the preservation of the other two.”

Prior to 1913, the government operated with revenues raised through tariffs, excise taxes, and property taxes, without ever touching a worker’s paycheck. The Supreme Court has classified income tax as a direct income tax.  Apparently, in enacting the 16th Amendment, legislators ignored the pesky little problem of States’ rights and the concept of federalism.  After the government attempted to enact a peace-time income tax following the Civil War, the Supreme Court, in Pollock v Farmer’s Loan and Trust, 157 U.S. 429 (1895), declared it unconstitutional.  Referring to the explicit prohibition against direct taxation in Article I, the Court argued that the income tax would excessively enhance federal power in relation to state power.  But in an effort to “soak the rich” and attempt to strip them of at least some of the power they held, the 16th Amendment was passed despite the important Constitutional principle it violated.

In his book “The Income Tax: Root of all Evil,” Frank Chodorov explains why taxes on income and inheritance are different in principle from all other taxes: “The government says to the citizen: ‘Your earnings are not exclusively your own; we have a claim on them, and our claim precedes yours; we will allow you to keep some of it, because we recognize your need, not your right; but whatever we grant you for yourself is for us to decide.’”

As Larry Arnn and Grover Norquist wrote in their 2003 article in Claremont entitled “Repeal the 16th Amendment”:  “Although the first income tax in 1913 was very limited – it applied to just 2% of the labor force, and its highest rate was 7% – it prepared the way for the federal government’s almost unlimited access to revenue. It thus provided an almost unlimited ability to fund programs that are properly state matters–crime fighting, education, welfare–and to pressure the states into conforming to a national standard in matters that should reflect regional differentiation, like speed limits and drinking ages.”

The Problem:

The nation currently faces a crisis not only financially, but also of conscience.  It also faces a crisis of Constitutional proportions, under both the very language of Article I and under the Equal Protection Clause which requires that laws must be applied equally to all Americans.  In 2009, the Democratic-led Congress enacted a series of tax reforms and generous exemptions and tax credits and then in 2010, it passed the gargantuan economic stimulus bill.  The result of these reforms, credits, and stimulus bill is that millions of Americans have been dropped from the federal tax rolls. A huge number of Americans are simply no longer affected by the federal income tax. Before these tax reforms, 47% of Americans were already not paying income tax.  Now this number is about 50% and shows every indication of continuing to climb higher.  As if that weren’t enough, the bottom 40% of income-earners actually receive a cash payment from the government at tax time – “the Earned Income Credit.” This is a re-distribution of wealth in its most recognizable form and is not covered under the “General Welfare” Clause. Hence it is not a legitimate exercise of Congress’s powers.

To make matters even more unfair, those who are required to pay taxes often have to spend quite a bit of money on tax compliance. A recent study shows that taxpayers spend an astounding $431.1 billion annually on such compliance. How large is $431.1 billion? It’s more than the dollar value of all the goods and services produced in a state such as Virginia or Michigan.

Under the Obama administration, many Americans accustomed to paying their share of federal taxes are being taken off the tax rolls. Recent tax law changes mean that for the first time, in 2009, a family of four making $50,000 can pay no federal income tax at all.  A family at this income level has surely suffered in this recession, but should they really pay no federal income tax at all?  By the way, can you guess which political party they will now side with?

The fact is that America has become divided between a growing class of people who pay no income taxes and a shrinking class of people who are bearing the lion’s share of the burden. Despite what critics have said about former President Bush that the tax cuts enacted in 2001, 2003 and 2004 favored the “rich,” these cuts actually reduced the tax burden of low- and middle-income taxpayers and shifted the tax burden onto wealthier taxpayers. Everything the government does continues to shift the tax burden onto wealthier taxpayers and at some point it has to stop before the notion of fundamental fairness we so treasure in this country is made a complete mockery of.

The current mindset of the Democrats and progressives is dangerous and alarming. It goes against the fundamental principles of our founding documents.  Democrats and progressive politicians have turned John Kennedy’s “Ask not what your country can do for you – ask what you can do for your country” on its head. And telling so many Americans that they don’t need to make sacrifices for our government, as we are now saying, is dangerous new territory for our nation and for the health of our democracy and economy.

Furthermore, by placing the tax burden so heavily on a certain class of Americans and continuing to do so by excluding so many others, the situation is almost tantamount to institutional slavery, or involuntary servitude (to be free only when he or she retires, loses his job, or takes a job at a very low pay).  In other words, a taxpayer can only be freed from this immense burden (over 4 months of the year are spent in financial hock to the federal government) if he or she betrays her own conscience and inalienable right to pursue the career of his/her own choice. The 13th Amendment promises that “Neither slavery nor involuntary servitude, shall exist within the United States.”

Recognizing that there is an inherent laziness and “degree of depravity in mankind” which will unfortunately flourish greater in a republican form of government (James Madison), we would expect non-taxpayers to behave as they do. Their demand for entitlements and government programs is naturally insatiable because they don’t care at all about the cost. Others are providing the funding who, in their eyes, have “more than enough.” Consequently, they will always support increasing government programs as a long as they get even a small benefit from them because it does not cost them a cent.  And so they will support politicians who favor more spending.  Representatives who need the support of such persons to be elected will continue to take from the pockets of others to provide to this solid voting bloc.

Therefore, by taking more and more Americans off the federal tax rolls, Democrats and progressives are creating a permanent base of supporters for themselves. In doing so, they have abused the progressive income tax too flagrantly and too unashamedly.  Many years ago, when Americans were Christians and God-fearing people, they knew it wasn’t right to take something for nothing.  They knew they should not look at what another has and covet it.  But Americans are a new breed and ‘honor’ isn’t a word that’s used much anymore.

At the rate Democrats and progressives are going, hard-working Americans can never expect their tax rates to go down. And it has to stop now, in the name of fundamental fairness and with reference to the Constitution and the reason the nation was formed in the first place.

Just as Democrats are catering to the needs of their voter base, Republicans must now begin to look after the interests of their voters.

The Solution:

We’ve talked about disenfranchisement and about class warfare.  We’ve looked at the fundamental values underlying our nation’s founding and we’ve looked at the problem created by our broken, unfair tax system. At its core, the problem isn’t about how much one group thinks the government should take from another group to somehow satisfy some subjective notion of ‘fundamental fairness,’ the problem is about the audacious and arrogant “right” of the government to take what it thinks it needs from people in the first place.  And if the government is going to take from some without taking from others, then there must be constitutional safeguards put in place to legitimately protect the interests of that former group with respect to the latter group.  That is a legitimate “fundamental fairness” issue and one that our Constitution in fact does demand.  The question becomes this: What is a fair way to safeguard the interests of taxpayers against those who do not pay?

For all the reasons above, I make the following proposal.  I propose that voter rights be subjected to the same arbitrary and progressive rules that property rights are.  Just as the tax burden is assigned on the ability to pay, the weight of an individual’s vote should be assigned based on the ‘stake’ that person has in government policies that will potentially diminish his or her property rights.  In other words, the weight of a person’s vote should equal the amount of skin that person has in the game.  A person with a lot of money might be taxed more but he also should have a greater say in what the government does with his money as opposed to someone who has contributes nothing.

So how would this play out?  Well, everyone is entitled to the “equal opportunity” to vote so every citizen of legal age would automatically get one vote.  Additional votes would be allotted, progressively, according to the amount of property subject to government regulation and according to the amount of money the citizen would be required to turn over in taxes.  For example, every taxpayer who owns a house might get a second vote. Every taxpayer who owns a business would get a third vote.  Every taxpayer who experiences a jump in the tax rate gets additional votes.

Notice that I didn’t say that everyone has the constitutional right to vote.  While most Americans believe that we possess the “legal” right to vote in this country, the fact is that our Constitution only provides for non-discrimination in voting on the basis of race, sex, and age in the 15th, 19th and 26th Amendments, respectively. The US Constitution contains no affirmative individual right to vote nor is it protected from the forces of government in the Bill of Rights.  The 10th Amendment to the Constitution states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the State, are reserved to the States respectively, or to the people.”  Since the word “vote” appears in the Constitution only with respect to non-discrimination, the so-called right to vote is a “state right.”  It could be argued, however, that the right to vote underlies our other fundamental rights because it protects them and therefore it is an affirmative right. In fact, voting rights protect all other rights and privileges in this country.  But it was the Supreme Court in Bush v. Gore (2000) which reminded us that there is no explicit or fundamental right to suffrage in the Constitution.  Chief Justice William Rehnquist had this to say: “In the eyes of the [Supreme] Court, democracy is rooted not in the right of the American people to vote and govern but in a set of state-based institutional arrangements for selecting leaders.”  Even more, the Court stated:  ”The individual citizen has no federal constitutional right to vote for electors for the President of the United States.” [So, for example, if President George Bush lost the case, the Florida legislature could have discarded the 6 million popular votes cast in Florida (either real or by “hanging chads”!) and been within its legal authority to select a panel of electors of their choosing to vote for President. It was Republican at the time, so following this hypothetical, it would have made sure that Bush got the electoral votes].

Only an amendment to the Constitution – a “Voting Rights” amendment – can correct the flaw in our system highlighted by the Bush v. Gore case.  Only a constitutional amendment would give every American an individual affirmative citizenship right to vote and not one subject to any limitations by the state, such as a residency requirement. (“You must be a resident in the state for at least one year in order to vote.”)

Consider this proposal for a 28th Amendment:

SECTION 1:  All citizens of the United States, who are eighteen years of age or older, shall have the right to vote in any public election held in the jurisdiction in which the citizen resides.  The right to vote shall not be denied or abridged by the United States, any State, or any other public or private person or entity, except that the United States or any State may establish regulations narrowly tailored to produce efficient and honest elections.

SECTION 2:  The weight of each citizen’s vote shall be determined in accordance with the liability to which he or she is subject to the laws and regulations of the federal government because of property ownership and earned income.

SECTION 3:  The District constituting the seat of Government of the United States shall elect Senators and Representatives in the Congress in such number and such manner as it would be entitled if it were a State.

SECTION 4: The Congress shall have power to enforce this article by appropriate legislation.

Why is a progressive voting scheme necessary?  It is necessary for essentially two reasons: (1) to ensure that interests are fairly and proportionally represented; and (2) to ensure that checks are in place to force Congress to be responsible with people’s money.  American taxpayers will soon face a crisis of no longer being fairly represented in government because the percentage of Americans who have no tax liability are reproducing at a faster pace than those paying taxes and welfare is becoming a way of life rather than a short-term necessity. Persons with no tax liability and no “skin in the game” are voting to spend other people’s money. They have no “stake” in the decisions of the government to spend taxpayer money or to raise taxes.  It simply doesn’t matter to them.  (When their programs get threatened, they can just hate the rich more and claim they aren’t “paying their fair share”). These non-taxpayers lack the proper nexus to the “checks and balances” that keeps government responsibly tied to person’s property. As a result, Congress will continue its out-of-control spending. Oh, it may talk about cutting the rate it is increasing its spending, but it won’t stop the ridiculous enlargement of programs and the irresponsible spending. Congress doesn’t have a taxing problem; it has a spending problem.  It sees hardworking Americans as an unlimited source of revenue – but only those that make what the government deems is “enough.”  And then that burden is enormous.

As I’ve already discussed, the federal income tax is a direct tax on property and therefore an unconstitutional burden on inalienable personal freedoms.  The right to property and the right to the fruits of one’s labor (including a paycheck) are as fundamental a right as the right to life itself.  The Declaration of Independence gives each individual the right to Life, Liberty, and the Pursuit of Happiness (embodied in all types of property), and under the US Constitution, the federal government MUST protect these rights equally for all Americans.  Yet the government has not done so.

Our Founders created a republic form of government to protect the rights of minority groups from mob rule, but they never expected other groups of Americans to be required to support them through forced and regulated charity (spreading the wealth or redistribution of wealth).  There is indeed a Constitutional crisis when fundamental rights are treated so shabbily.  There is indeed a Constitutional crisis when fundamental rights are treated so differently between and among groups of Americans. We’ve gone through many crises in our country when civil liberties and fundamental rights were not respected equally and we’ve put laws in place to remedy the situation.  Yet when it comes to money, our government and courts can’t seem to apply the same notions of fundamental fairness and equality, even though money is intricately tied to more precious fundamental rights.

We have undeniably sunk to a new low in “punishing” productive behavior – such as investing in education, conducting oneself morally and ethically, building a career, and making the necessary sacrifices in family life to move up the corporate or business ladder – through excessive taxation.  Such productive behavior used to be the ones that defined Americans.  That’s not the case anymore.  The character of Americans has changed.  The dynamics in this country are changing.  There is an old saying which goes something like this – If you punish those who work hard and raise their families right, they will start having less children, and if you reward those for being lazy and being freeloaders, then they will have more children.  And that’s what we are seeing. We are seeing a shift in the distribution of those who are contributing and those who are taking and it doesn’t bode well for the country and especially for taxpayer.  Our financial bankruptcy is finally catching up with the depth of our moral and ethical bankruptcy.

Congress bears a moral responsibility to provide for and protect individual Liberty, including economic Liberty, and personal property (whether real or intellectual). If the current income tax structure is permitted to exist in its arbitrary and progressive nature, then immediately, there MUST be voter reform to institute a progressive, or weighted, voting system to protect the inherent property interests of taxpayers. While each person is entitled to one vote, additional voter weight will be given to those who pay taxes, own property, own a business, and otherwise engage in activities which are subject to the onerous and burdensome taxation requirements of the federal government.  This progressive voting scheme will be necessary to combat the inherent unfairness of the current income tax scheme.  It will provide that necessary constitutional safeguard to protect a person’s property from the insatiable jaws of government.  It will help exceedingly to protect against the thing that could destroy personal freedom and that is government confiscation of property. Then we’d surely have communism here in America. Right now it’s socialism that is moving closer to fascism. (Note that you don’t need outright confiscation of private property or business to impose socialism. It doesn’t really matter if you hold the title to your property the government regulates it so heavily as to render it useless or unproductive.  It doesn’t really matter if you hold the title to your business if the government holds the power over the life or death of it).

In the alternative, of course, we could simply abolish the 16th Amendment and move to a Fair Tax or other fair taxation scheme, or go back to the taxation scheme that served our nation well for the first 126 years of our existence – revenues which were raised through tariffs, excise taxes, and property taxes.  It never touched a worker’s paycheck. Of course, that would require the federal government to divest all its unconstitutional powers and functions, return the responsibilities to the states, where they certainly would apply them more fairly and intuitively to their citizens.

My solution just keeps getting better !!

In summary, we need to a return to fairness, and not the kind of fairness that Democrats talk about.  Fairness needs to apply to everyone and not just those who have chosen to do the very least to get by and therefore feel they are entitled to what others have earned. We need tax reform (or if not, then voter reform!). With tax reform, we need the government to cut its “cradle-to-grave” nanny-state policies. Then we can finally expect to see tax breaks. We need to get the millions off dependency and into self-sufficiency. We need them to stop waiting around for a government check and instead, getting out each day to work to earn a paycheck or to class for an education to get a bigger paycheck. No one has the right to claim inequality unless he or she is willing to put an honest effort into an education and learning the English language in order to speak and communicate fairly intelligently. We need to stop the mean-spirited accusations and the tired old line that certain Americans can’t achieve because they are victims. Everyone is in charge of their own destiny.  As Machiavelli once warned: “It is just as difficult and dangerous to try to free a people that wants to remain servile as it is to enslave a people that wants to remain free.”


Larry P. Arnn and Grover Norquist, “Repeal the 16th Amendment,” The Claremont Institute, April 15, 2003.  Referenced at:

Ilana Mercer, Repeal the Abominable 16th Amendment, WorldNetDaily, November 20, 2002.  Referenced at:

“Government and Policies: Class Warfare Dominates Debate,” The Patriot Post, Digest – January 27, 2012.  Referenced at:

Charles Gasparino, “Adding Up to Nothing,” NY Post, January 26, 2012.  Referenced at:

Timothy Geithner, Honest Questions.  Referenced at:

Bush v. Gore, 531 U.S. 98, 104 (2000)

Who is Really Disenfranchised?

       by Diane Rufino, Jan. 21, 2012

We hear a lot from the Obama administration and the Democratic Party about who in America is disenfranchised.  And according to them, it certainly isn’t the American taxpayer. In fact, according to them, most often, they aren’t doing enough…. they aren’t doing “their fair share.”

This is a phrase that I’ve come to despise lately, because all notions of fairness and equality have either been severely distorted or thrown out by the federal government.

Disenfranchised…..  The word takes us back to that shameful time in American history when blacks, having been freed from the bonds of slavery, were denied so many fundamental civil rights. But those days are over. Equality rings loud and clear, in rights and opportunities, and secured by force of law.

Today’s Democratic party offers free stuff, that other people pay for.  But it offers no real hope and certainly offers no solutions, except to remain uneducated and uninspired and pregnant so the checks and free services continue.  There’s no vision, and therefore, there’s can be no hope. The rhetoric is based on hate, mistrust, anger, and victimization.  The party message is that the poor and minorities are oppressed because they are victims. The whole system is against them. In order to push their programs of dependency, the message is that most Americans are racist and selfish.

And so, because of the history this one word summons, modern civil rights-conscious America is doomed to hear it each and every election cycle from now until we say that enough is enough.

There is a lot of talk of “disenfranchisement” of minority voters by Voter ID laws, which is another ridiculous attempt to cast common-sense, color-blind legislation in terms of race.  The way Eric Holder and civil rights leaders carry on, you would think there was a legitimate argument.  But there isn’t.  There is no credible evidence to suggest that blacks are being denied the right to vote.  It’s another race-based attempt to deflect the very real instances of voter fraud (benefiting Democrats) away from the Democratic party and onto good law-abiding Americans who demand integrity in the voting and election process. Americans who are standing up for an end to years of voter fraud are called racists.  Racism is the Black Panthers standing at polling locations intimidating white voters with batons.  We all remember Election Day 2008 in Philadelphia where members of the Black Panthers stood menacingly in front of a polling place, dressed in military-style uniforms and carrying night sticks, and hurled horrible racial slurs at whites. Racism is the US Justice Department refusing to prosecute the case, claiming there was no solid evidence that there were any violations of the Voter Rights Act, even though several videos surfaced clearly showing the intimidation and the racial slurs.

The Democrats won’t tolerate a reasonable law requiring people to show a valid ID because it might prevent blacks from voting but it will tolerate blacks beating up whites to physically prevent them from voting.

Democratic leadership all over the country are attacking efforts in their states to enact reasonable assurances that a person casting a vote is who he or she claims to be and is lawfully entitled to cast that vote.  Obama’s Attorney General, Eric Holder, king of the “disenfranchisement” card, has used the full resources of the federal government to block South Carolina’s Voter ID law. Holder and the other leaders claim such measures would disenfranchise blacks and therefore amount to a poll tax.  “This is how Republicans keep African-Americans from voting now,” they proclaim.  Not so.  If only Republicans could get a dollar for every time a Democrat lied. What Democrats really should confess is that need fraudulent votes to win elections. They need people to vote early and often. They need people to vote for their relatives (even though they may have moved away or passed away). They need felons to vote. They need illegal immigrants to vote. They need dead people to vote.  And yes, they even need Mickey Mouse’s vote.  Newt Gingrich had this comment to make: “You have to ask, why is it that they are desperate to retain the ability to steal elections; I think that’s what it comes down to.”

“Disenfranchise” means to deny a person a right; usually a right of citizenship. So let’s talk about who the real “disenfranchised” Americans are.  They are hard-working American taxpayers – the most abused and forgotten group of people in this country.

Two years ago (2009), it was reported that 43.4% of Americans paid zero or negative federal income taxes. The number of single or jointly-filing “taxpayers” who paid no taxes or received government handouts reached 65.6 million, out of a total of 151 million. In 2010, 45% of Americans paid no income tax. And this year (for tax year 2011), less than half will be paying income tax.  That is quite a shift in just two years.

However, it appears that the statistics reported are not quite accurate.  According to the government Joint Committee on Taxation, 51% – that is, a majority of American households – paid no income tax in 2009.  None at all.  As if that isn’t alarming enough, 30% of those households actually made money from the tax system. They did this by way of refundable tax credits, such as the Earned Income Tax Credit, among others.

These statistics come from a document produced by the Joint Committee on Taxation, a respected bipartisan committee of Congress. The JCT found that for tax year 2009, roughly 22% of “tax units” (not exactly “households”) ended up without any tax liability. Another 30%  not only didn’t pay anything, but they got money back from the government, through mechanisms such as the Earned Income Tax Credit, a policy enacted in 1975 that encourages low-income Americans to work by refunding money through the tax code.  People who receive these checks often have no income tax liability. This tax credit was established, in part, to offset the burden of social security taxes and to provide an incentive to work. A greater tax credit is given to those who also have qualifying children. By contrast, the JCT found that only 49% of Americans owed tax revenue to the government.

How is this possible?  It’s possible when the federal government uses the federal income tax program not only to generate income for the government but also as a means of wealth distribution. These tax credits are an income transfer – a federal check – from taxpayers to non-taxpayers. This is another form of welfare.  Or, to use a term coined in George McGovern’s 1972 campaign – it is a ‘Demogrant.’  The government is using the labor of some people to benefit other people. Hmmm.. That sounds like a form of slavery to me. It allows people to have property by taking property from another.  (Property, as we know, is transformable, from intellectual to monetary, to personal to real property).  It allows people to have children at other people’s expense.  In fact, the Earned Income Tax Credit encourages such people to have more children to get a larger check.  There aren’t too many “old-school” Americans whose parents taught them that this is a proper way to raise a family.  Most taught their children to get a good job so they can make enough money to raise a family.  Those were the days when American values and morality mattered.  We all know that too many parents today teach their children a completely different lesson – to have children in order to get as much money from the government as possible. Unfortunately, a sperm donor is all that is required for that…  not a husband and father.

These type of citizens not only place a burden on those who pay taxes, but perhaps more importantly, they have a vote in government without any “skin in the game.”  They have no stake in the federal government other than what they can get out of it. The United States is close to a tipping point. The dynamics in this country are changing. Our moral code, “Thou Shalt Love Thy Neighbor,” is being replaced by a secular code, “Thou Shalt Steal From Thy Neighbor.” We’re almost at the point, if we’re not already there, where most people don’t have to worry about running out to the post office on April 15th because they’re expecting one from the government instead.  Oh such a happy day for these people. That is, if they have no conscience and no pride.

I’m a scientist by training and I’ve come to conclude that a particular biological association explains the association between persons living according to democratic ideology and those living according to Republican, conservative ideology. It’s called ‘Parasitism.’ It is a living arrangement where one species benefits while the other is harmed.  There are far too many Americans who condemn conservatives yet sit back, collect checks, contribute nothing, and reap the benefits that conservative individuals provide.  Conservatives are the ones who work hard and pay their disproportionate share of taxes for all the programs and services while over 50% of Americans are excused from paying income tax yet receive the benefits that the others pay for.  Conservatives believe in family values and raise their children properly, with an emphasis on education and responsibility. They provide the stability in schools and society that others rely on. They also provide most of the charity that benefit those in need.

While taxpayers look for the day their obligation to the federal government will be relieved, Obama shows no sign of curbing entitlements or addressing meaningful reform.  In fact, spending continues to increase. Entitlements makes up about 40% of the budget and is comprised of Medicare, Medicaid and Social Security and spending on such programs is projected to grow to nearly $3.5 trillion by 2021, up from $2.1 trillion which is what is provided in this year’s budget.  That comes out to an increase of 67% over the next 8 years.

Again I ask, who are the real Americans being disenfranchised?

There are no laws to protect these ‘disenfranchised’ Americans. There are no civil rights laws for them to seek redress.  They used to have the Declaration of Independence, which guaranteed the equal rights to “Life, Liberty, and Property,” and they used to have the US Constitution, which required that all direct taxes must be apportioned equally. Citizens are supposed to have the right to keep the reasonable rewards of their labor and the fruits of their intellect and enterprise. It was a fundamental premise upon which our independence was anchored.  It is unreasonable to expect citizens to work at least one third of the year just to pay taxes to a federal government that is lawfully only vested with the power to do a limited number of things on behalf of the people of the country.  Nowhere in the Constitution does it grant the government the power to legislate charity and require one group of people benefit another group of people.

When the group of ‘disenfranchised’ Americans use perhaps the only rights left – to speak and petition, under the First Amendment – they are attacked by the poor as being greedy and “not paying their fair share.” Even more offensively, they are attacked by the very representatives that have sworn oaths to protect the rights of citizens equally and to protect our republic. [Reminds me of a story I read my children – “Animal Colony”].  A government that fears its citizens and ‘serves’ its citizens would never treat them so shabbily. But we no longer have that type of government. Ours is government more concerned about social justice (social re-engineering) than individual rights. Ours is a government that is intent on transforming this country rather than restoring her. You ‘transform’ something that no longer appeals to you.

Forget their right to vote to assert their rights to keep their property. That’s been long rendered useless by the rising entitlement society.

I suppose the only thing left for those who want to keep their money and assets and don’t want to pay taxes is to work in the Obama administration.

Do you ever notice how Democrats are always talking about some people being disenfranchised (ie, their constituents) while at the same time trying to stick their hands deeper and deeper into hard working people’s pockets and taking money away from other people’s families, education, and retirement plans. They are literally looting the property of hard-working Americans. Newt Gingrich recently said this: “I don’t want to make people’s lives better by giving them other people’s money. I want to give them the opportunity to go out and earn the money.”

Democrats have got it all wrong.  You don’t help people by robbing them of their self-worth or dignity, and you certainly don’t help them by diminishing their worth in the eyes of other people by labeling them “dependent” and a “burden on society.” Perhaps the party leaders should take a cue from John W. Gardner, who said: “If you have some respect for people as they are, you can be more effective in helping them to become better than they are.”

But why aren’t Democratic constituents asking for education and training rather than outright hand-outs?  My mother worked for years at the New Hanover County Department of Social Services in North Carolina until she finally had enough and quit. She said she was tired of trying to giving welfare recipients job tips and information on education programs or asking about the whereabouts of the father of the children and being told: “Just give me my damn check.”

Matt Robbins of American Thinker may have said it best when he wrote: “Eighty million ordinary citizens take the one extraordinarily conventional step every single day that makes the U.S. economic engine actually run. They go to work. Monday through Friday, and even sometimes on Saturdays. They’ve been labeled the Silent Majority by Nixon (and ‘masses leading lives of quiet desperation’ before him by Henry David Thoreau), the middle class, the consumer class, the bourgeoisie. And yet their unfailing habit of playing by the rules, putting in overtime to put food on the table and pay their taxes has created the financial wonder of the modern world: the American economy.

This is to say nothing of those millions of mom-and-pop proprietors, the legal immigrant shopkeepers, those entrepreneurs who take the biggest financial and personal gambles and start their own small businesses. I’ll never forget the story from a friend in the Korean community who had to have his wedding reception first, prior to the ceremony that weekend, so the bulk of his guests could return to their dry cleaning businesses, their small corner markets, their stores……”

Mr. Robbins then asked this question: “Who always has to pay the bill?”

And he answered it as follows, talking to the American taxpayer: “You do. You’re part of that grand American tradition of holding up your end of the bargain. You’re that proud parent who works extra hours to give your child the best education available. You’re that citizen who foots ever-increasing taxes on everything from the car you drive to the property you ‘own,’ all the while believing that the men and women you send to your city council, your county board or commission, your state capital, or even Washington, D.C. are actually going to do what they said they would do. Then you watch and listen, year after year—it seems helplessly—as your voice gets drowned out by the chorus of shouts and cries…always for more spending, more government programs……  And on your dime.  Call me crazy but I’d say that’s the textbook definition of disenfranchised.”

Claims of voter disenfranchisement are specious claims. They are baseless, meaningless. There is no merit to them.  But again, the mere mention of “disenfranchisement” conjures up memories of the old Jim Crow era and then preys on racial sentiments.  The real disenfranchised American is the one who doesn’t have a significant say in how the government spends his or her money. In this case, a real, tangible liberty interest is at stake… property rights.

Our founders understood that property rights were just as important as the rights to life and liberty, because one without the other two render the right almost meaningless. We also must take into consideration that the rich pay a disproportionate amount of taxation, probably in violation of the Constitution’s guarantee that all men are “endowed with certain inalienable rights” (which include the right to life, liberty, the pursuit of happiness, which is synonymous with property and the fruits of one’s labor and intellect) and the government is supposed to protect those rights equally. A fair system would have everyone contributing.  And every American would have to live according to his or her means. Every American receives the same benefits and protections from the government so everyone should contribute. In fact, those who contribute less or nothing receive the most services. If we look at something like a flat tax, it ends up being graduated in the end after all, doesn’t it ?  10% of a poor person’s wages is a relatively small amount, while 10% of a wealthy person’s wages is certainly a lot greater.

We have to remember a simple fact:  People with access to other people’s money have no sense of its worth. Tell a person who has never worked a day in his life that he has access to Bill Gates’ account. What do you think he will do?  He will spend like crazy and for everything he wants or thinks he should have.  Why?  Because first, he looks at someone like Bill Gates and assumes that he already has enough money and certainly more than one person should need.  Second, he might have a chip on his shoulder and harbor resentment that while he doesn’t have much, it’s not fair that Bill Gates should have so much more.

Aside from getting a hand-out and benefitting at another’s expense, our current tax scheme inherently corrupts the political process. It necessarily becomes tempting for the politician to promise more and more hand-outs to attract votes, and it becomes far too tempting for poor and unconscionable people to vote for politicians who make those promises. Those hand-outs are paid for, as we’ve seen, by money forcibly extracted from an ever-shrinking number of their neighbors. Furthermore, people who take such hand-outs are less likely to be diligent and scrutinize their elected representatives. Peter Sepp, vice president of policy and communications at the National Taxpayers Union, which advocates for lower taxes, explains: “At some point people become less and less invested in making sure their government is accountable and frugal. If you pay very little for getting all kinds of government benefits, you might view those programs as a bargain, even though they may waste tens of billions of dollars a year.”

As I mentioned earlier, the dynamics in this country are changing and more and more people are being relieved of paying income tax, thereby shifting the responsibility for paying for the running of government and its functions to less than half the people.  At the same time, money is also being redistributed, ever so subtly through various government programs, from those same taxpayers. The burden on American taxpayers is indeed harsh and repressive. As the dynamics continue to shift and less and less people shoulder the burden of financing the government (what will their “fair share” be then?), more “dependent” people will be voting for the fruits of other people’s labor. Their increasing vote will negate the voices of the very people upon whom the government has become oppressive.  Again I ask, who are the real Americans who are disenfranchised?

[This article will be followed up by another article offering a plausible solution].


Matt Robbins, “Who’s Really Disenfranchised,” American Majority, July 20, 2011.  Referenced at:

“John Cornyn Says 51% of American Households Pay No Income Tax, PolitiFact, July 7, 2011.  Referenced at:

Lori Martin, “Your Take: Elephant in the Room?,” Wallace Watch Blog, Feb. 14, 2011.

Then They Came for Me, and No One Was Left to Speak Out

          by Diane Rufino, Jan. 4, 2012

If you ever get the chance to visit the Holocaust Museum in Washington DC, you will be forever affected by what you see and learn there, and you will be moved by a quote you see hanging near one of the exhibits.  It is a quote by Martin Niemoller which reads:

First they came for the communists, and I did not speak out–  because I was not a communist; Then they came for the socialists, and I did not speak out– because I was not a socialist; Then they came for the trade unionists, and I did not speak out– because I was not a trade unionist; Then they came for the Jews, and I did not speak out– because I was not a Jew; Then they came for me– and there was no one left to speak out for me.

The reason it will touch you is because these short five sentences explain how a people could so effectively detach themselves from the policies of their government so that it could ultimately imprison all political enemies and slaughter six million innocent people.

Martin Niemoller was a Protestant (Lutheran) pastor who founded the anti-Nazi Confessing Church in 1934. In November 1945, he visited the Dachau concentration camp, where he was imprisoned from 1941 until it was liberated in 1945, and it was this particular visit which is believed to have inspired him to write his now-famous quote.

In 1931, Martin Niemoller became a  Lutheran pastor in a wealthy suburb of Berlin. Initially, he supported Hitler and most of his policies. But then the Fuhrer began to interfere in church affairs.  One of the first laws that Hitler put into effect in Germany was known as the “Aryan Paragraph.” This new rule stated that only Aryans could have positions in the German government; Jews were no longer allowed to have government jobs. The rule was quickly expanded to ban Jews from becoming Pastors in any of the Christian churches in Germany. Meanwhile, in 1934, Niemoller and several other ‘rebel’ pastors established the Confessing Church, a branch of the German Protestant (Lutheran) Church, to resist the German Christians’ Faith Movement (the Reich Church).  One of the major distinguishing policies of the Confessional Church was that Jews who had converted to Christianity could become pastors. The Aryan law, as it applied to the catholic church, was a sore spot for Pastor Niemoller. He argued that once Jews had converted to Christianity they should be allowed to remain in the Church.

In June 1936, Niemoller and nine other leaders of the Confessing Church signed and sent a memorandum to the Fuhrer.  Among other complaints, it specifically attacked the Nazi party’s attempts to force anti-Semitism and hatred of Jews on Christians in violation of the commandment to “Love they neighbor as thyself” and it chastised the party for presenting Christian parents with the dilemma of forcing their children to adopt such non-Christian policies. Six of these leaders were arrested and thrown into prison or concentration camps, and one died under “suspicious circumstances.”  Niemoller himself was arrested in 1937, for delivering outspoken sermons. He was arrested later than the others because he was a member of the Nazi Party and had been a war hero; he commanded a sub in WWI and successfully torpedoed and sunk a British vessel. He was held for eight months at Moabit prison without a trial and when his case was finally heard, he was found guilty of “abusing the pulpit” and treason. At that point he was only fined.  But as he left the courthouse, he was arrested by the Gestapo and sent to Sachsenhausen concentration camp to be “re-educated.”  Niemoller refused to change his views, even after a personal plea from Hitler himself, and in 1941, he was transferred to the infamous Dachau camp, where he stayed until the end of the war.  Joseph Goebbels urged Hitler to have him executed, but he was released on April 24th, a few days before the camp was liberated by the Americans on April 29, 1945.

[Dachau was one of the three concentration camps in Germany (Dachau, Sachsenhausen, and Buchenwald); It opened on March 22, 1933, less than two months after Hitler was appointed chancellor of Germany, and the first prisoners were Communists, just as Niemoller said.  The Socialists, mentioned in Niemoller’s quote were officially known as the Social Democrats. They posed the greatest political risk to Hitler and the Nazi party so that’s why they were rounded up. In fact, all three camps three were located in areas of Germany considered to be hotbeds of Communist and Social Democrat political activity].

Unfortunately, while Niemoller stood up for converted Jews, he otherwise appears to have harbored anti-Semite feelings and openly professed his belief that the Jews had been punished through the ages because they had “brought the Christ of God to the cross.”  He delivered a sermon which included, in part: “I cannot help saying quite harshly and bluntly that the Jewish people came to grief and disgrace because of their own actions.  The Jewish people bear a curse throughout the history of the world because they were ready to approve of their Messiah just as long and as far as they thought they could gain some advantage for their own plans from Him, His words, and His deeds.  They bear a curse because they rejected Him and resisted Him to the death.”  Sadly, his very words would support the teachings of the Reich Church.

For those who have not yet visited the Holocaust Museum, there is one section dedicated to how hatred for the Jews escalated in Nazi Germany.  It followed a carefully-designed plan of propaganda, of course, first outlined by Hitler in the book he wrote while imprisoned – Mein Kampf – and then implemented by Heinrich Himmler, head of the SS and the key Nazi official responsible for conceiving and overseeing the implementation of the Final Solution, the Nazi plan to murder and dispose of the Jews of Europe.  Before the Nazis labeled Jews as ” Judenrat” and forced them to wear yellow ribbons, destroyed their businesses and synagogues during the “Night of Broken Glass” (or Kristallnacht; when SS destroyed over 7,000 Jewish businesses and over 1,000 synagogues), seized their property, took away their rights, and rounded them up for deportation to concentration camps, there were more insidious strategies to turn the German people against the Jews. For one, Jews were blamed for controlling much of the country’s banks and finances during World War I and not freeing money up to support the German troops. Jews were accused of  stabbed their fellow countrymen in the back. Germany had been forced to ask for an Armistice in World War I because it could no longer finance the war and because the trade unions called for a general strike of all the workers so that the whole country of Germany came to a total stop. Germany lost World War I, even though the country was never invaded and its army was not defeated in the field. Another propaganda campaign was to have German churches teach that Jews were evil and enemies of Christians because they killed Jesus. Martin Luther, father of the Protestant Church in Germany, professed this view back in the 1540s so hostility to the Jews was nothing new in Europe. He even suggested at the time that all Jews be removed from Germany. Luther wrote a book entitled On the Jews and Their Lies, and just about every church and every anti-Jewish book printed in the Third Reich contained references to and quotations from this book.

I didn’t write this article to offer praise to Niemoller for his famous quote or to extol any of his virtues. The truth is that his actions during the rise of Nazi Germany and the ensuing genocide were really only to sustain the church and nothing more. He was essentially concerned only when church members were arrested and many were. He did not seem overly concerned with what was happening to the Jewish population or willing to accept any responsibility as a church leader to stand up for the inhumanity that was going on in ghettos, camps, and ovens.   I simply want to find the lesson in his story.  And I know there has to be a lesson because his quote is so eloquent and so astute.

When he visited Dachau in 1945 after he had been released, something about the trip caused him to reflect and appreciate what had happened in Germany.  Did he have a change of heart about what happened to the Jews and about his anti-semitic sermons?  Perhaps not.  Was he affected by the suffering and oppression around him while at Dachau?  Probably not. He and other pastors were separated into different facilities and given favorable treatment there.  Did he finally appreciate the enormity of the Nazi’s persecution of the Jews?  Perhaps.

I think the lesson Niemoller finally learned and what he tried to sum up so he could teach us is that innocent people were sent to concentration camps by the Nazis for no reason at all, and because good people did nothing, the result was that in a good person (Niemoller himself) was wrongly imprisoned. Martin Niemoller was a German citizen, a member of the Nazi party, and a Protestant minister in a country that was predominantly Protestant and controlled by the Nazi party.  He merely disagreed with his Fuhrer on one simple issue.

What this lesson says to me is that we need to stand up for all attacks on liberty with equal passion, even if they might not affect us personally. For those who need healthcare, maybe the fight against socialized healthcare is not your issue. But the underlying freedom that is eroded because of such a government program should be an issue worth your attention.  Only you can do the balancing test – between getting a break on healthcare because the government is providing it AND the natural right to decide matters of healthcare on your own and without the government mandating coverage and solutions.  For those who don’t agree with the message of Occupy Wall Street, remember that the underlying freedom to protest and disrupt government is one that is vital to us all as Americans and might become even more vital in the months ahead.  We all want to feel safe against terrorists who want to do us harm and we believe the government owes us that protection, yet a law that ultimately allows our very government to spy on its citizens and detain us indefinitely for suspicious activity is one that gives an already dubious and untrustworthy government the power to decide what the “suspicious activity” is and who the suspects might be.  We have the natural right to be free from harassment from our government.

God who gave us life gave us liberty. We need to value our liberties just as we value our lives.

Let’s learn the lesson embraced in Niemoller’s quote.  Let’s take it to heart. If we can truly appreciate that valuable lesson then maybe the horror of the concentration camps wasn’t in complete vain.


Harold Marcuse, ” Martin Niemöller’s Famous Quotation,” Sept. 12, 2011.  Referenced at:

Martin Niemoller, “ Exile in the Fatherland: Martin Niemöller’s Letters from Moabit Prison,” (Memoir), 1975.

“Rev. Martin Niemoller: First they came for the Communists….,” Scrapbookers blog, Aug. 19, 2010.   Referenced at:  

The Government Shall Not Prohibit the Free Exercise of Religion

    by Diane Rufino, Dec. 29, 2011

I wanted to touch on something, as you already probably know, that had me really upset over Thanksgiving. And that was Obama’s failure to acknowledge and thank God in his Thanksgiving message to the nation.

I think we are witnessing something that our Founders warned us about ….. A government which is growing HOSTILE to religion. This is something that our founding settlers devoted their lives to and the one issue above all else that Thomas Jefferson devoted his public service career to – the notion that we all can worship and embrace the rights of conscience without the government prohibiting “the free exercise thereof” and without establishing a government-sponsored form of religion which creates hostility towards other denominations. As lovers of liberty, Tea Party members, and constitutional warriors, we know this and it kills us every time we hear public servants and activist judges cite the phrase “Wall of Separation.”  We know that activist judges created a legal fiction out of this phrase, and most offensively too, by claiming it was Jefferson’s very own concept. They indeed used his own words, out of context, against the very freedoms he sought to protect.  Jefferson, by his own wishes, wanted to be remembered as the Father of Religion… the man who secured the rights to free exercise and the right to be secure in one’s own religion such that the government wouldn’t establish one religion and punish a person for allegiance to another faith or denomination.

When atheist groups such as Freedom from Religion, which represent less than 1% of the population, can sue to remove a religious artifact or a prayer or a word/phrase, they are suing because “It makes me uncomfortable to hear the prayer.” “It makes me uncomfortable to drive past the town square and see a nativity scene.” So what does the court do?  It requires the prayer to be removed. Sometimes it requires the prayer to be so altered that it lacks religious significance and ends up being a pep talk. It requires nativity scenes to be removed and crosses to be taken down.  In essence, the court is choosing NO RELIGION over religion. And that makes the current population of Christians in this country – 85% (according to a 2011 census) – and other believers very uncomfortable.  It makes us uncomfortable because we can’t recognize the proper religious implications of a holiday and it makes us uncomfortable because we know that government is becoming increasingly hostile to the rights of religion and rights of conscience.  In particular, it makes us uncomfortable because the government is becoming increasingly more hostile to us and to those who think like us.  Liberty is becoming more fragile.

I write this as a plea to keep the pressure on public officials to respect the exercise of the Christian faith.  We’re not demanding that the government establish it as a national religion but we will not tolerate the hostility of the government to this very religion which was so instrumental in our founding and is so clearly evident in the words and spirit of our Declaration of Independence and our Constitution and our state constitutions. We all, including atheists and yes, even liberals, depend on the very freedoms that our founders secured for us.  It is sheer hypocrisy to hear people, like Obama and Freedom from Religion groups, use the very freedoms that our reverent fore-fathers secured for us, based on religious principle, to destroy other fundamental freedoms.

For those who have taken the time to study our founding history and turn to primary sources rather than nonsense put out by groups such as the Southern Poverty Law Center, we know that once our founding patriots fought the American Revolution to win our independence from Great Britain and secure the blessings of individual liberty for Americans, our early leaders had to figure out how best to protect those blessings for future generations and in fact, for posterity.  Every generation of American deserves the full promise and exercise of freedom that our early Americans fought, secured, and protected.  Our early leaders, those men we fondly, humbly, and proudly call our “Founding Fathers,” drafted a Constitution for that purpose.  The task falling to them was how best to secure those liberties.  They did so by basing our founding documents on certain philosophies and values that they knew would enlarge liberty rather than limit and endanger it.

There were many philosophies floating around at the time. After all, the European Enlightenment Era (ie, the “Age of Reason”) beginning at the start of the 18th century (1700) to about 1800, produced many theories to explain social institutions and human behavior.  This movement advocated rationality as a means to explain an authoritative system of governance, as well as to explain the basis for ethics and morality.  Up until this time, theories were based on the writings of Plato and Aristotle.  Plato believed that the State should establish an ordered society; that it should solve all society’s problems. Consequently, he believed that individuals only role was to serve the interests of the State. They have no rights, just duties.  Aristotle, his student, did not agree. He believed the individual was more important than the State and the latter cannot be trusted to solve all of society’s problems. He did not believe in a utopia, and certainly not one that the State would create. He believed that the fundamental rights of life, liberty, and property should not be surrendered to the State because it would destroy the benefits that such rights create.  The Enlightenment philosophers, like John Locke, William Blackstone, Thomas Hobbs, Montesquieu, and Adam Smith, offered the Natural law rationale behind the type of arrangement that Aristotle taught, with respect to individuals and their government.  Our Founders could have adopted any of the philosophies floating around at the time, including those of Plato, in establishing the foundation for our nation, but they chose those that embraced individual liberty and the protection of fundamental rights.  Our Founders were grounded in the teachings of the Bible and therefore sought the best form of government for fellow Americans, the one that would embrace freedom and promote the best and noblest pursuits and ambitions of man.  They understood that when the best and noblest ambitions of man are promoted, all of society benefits.  The French, on the other hand, sought “Equality of Outcome’, rather than “Equality of Opportunity.”  In a society that is based on Equality of Opportunity, as we are (or were) under the Declaration of Independence and Bill of Rights, there is an equal opportunity for all individuals to maximize their potentials and attain positions in society.  This is made possible by equal protection of rights and equal access to things like education, the intellectual arts, and contracts. Equality of Outcome refers to a state where everyone receives equal amounts of rewards and an equal level of power in decision-making, with the belief that, no matter who contributes more, no one should be rewarded more than another.

Our Constitution and our government were established by men who understood the absolute necessity of morality and religion in everyday life, as the only sure way to protect the rights of man.  Benjamin Franklin wrote, “Only a virtuous people are capable of freedom.  As nations become corrupt and vicious, they have more need of masters.”  George Washington later praised the new American Constitution as the “palladium of human rights,” but pointed out that it could survive only “so long as there shall remain virtue in the body of the people.”  By “virtue,” he meant religion and morality.  He made this clear in his farewell address to the American people.  Washington and others believed in individual morality and virtue as identified with the Ten Commandments and obedience to the Creator’s mandate for right conduct.  John Adams said: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”  He also wrote: “The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If  ‘Thou Shalt Not Covet,’ and ‘Thou Shalt Not Steal’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”

John Quincy Adams, sixth president of the United States, wrote in a letter to his son: “The law given from Sinai was a civil and municipal as well as a moral and religious code; it contained many statutes . . . of universal application-laws essential to the existence of men in society, and most of which have been enacted by every nation which ever professed any code of laws.”  In another letter he wrote: “There are three points of doctrine the belief of which forms the foundation of all morality. The first is the existence of God; the second is the immortality of the human soul; and the third is a future state of rewards and punishments. Suppose it possible for a man to disbelieve either of these three articles of faith and that man will have no conscience, he will have no other law than that of the tiger or the shark. The laws of man may bind him in chains or may put him to death, but they never can make him wise, virtuous, or happy.”

James Wilson, signer of the Constitution and Supreme Court justice (from 1789-1798) said: “Human law must rest its authority ultimately upon the authority of that law which is divine. . . . Far from being rivals or enemies, religion and law are twin sisters, friends, and mutual assistants. Indeed, these two sciences run into each other.”  And Oliver Ellsworth, Chief justice of the Supreme Court (1796-1800) wrote: “The primary objects of government are the peace, order, and prosperity of society. . . . To the promotion of these objects, particularly in a republican government, good morals are essential. Institutions for the promotion of good morals are therefore objects of legislative provision and support: and among these….. religious institutions are eminently useful and important…. The legislature, charged with the great interests of the community, may, and ought to countenance, aid and protect religious institutions—institutions wisely calculated to direct men to the performance of all the duties arising from their connection with each other, and to prevent or repress those evils which flow from unrestrained passion.”

There are atheist groups who challenge our Founders and the Constitution and say that they indeed intended to create a secular state.  They point to the wording of the Constitution and the lack of any mention of God in it. This view evidences an astonishing lack of understanding of the federal nature of the system unanimously created by the delegates at the Constitutional Congress of 1787 and endorsed by the States in their ratifying conventions.  The failure of the Constitution to mention “God” or provide for His acknowledgment  has nothing to do with the intentional creation of a secular state; in fact, the Constitution has nothing to do with religion at all except to forbid the federal government from interfering with an individual’s rights to recognize and worship the religion of their choice. The Constitution was silent on the subject of God and religion because there was a consensus that, despite the framer’s personal beliefs, religion was a matter best left to the individual citizens and their respective state governments. Simply put, the Constitution appears “godless” or secular because in so doing, there was an intention decision to leave all matters regarding religion and devotion to God to the individual States.  As we can easily confirm, relationships between religion and state and local government are defined in most state constitutions. Our Founders and Framers, in the pursuance of the greatest freedom of Americans to worship, believed it would be inappropriate for the federal government to encroach upon or usurp state jurisdiction in this area. State and local governments, and not the federal regime, were the basic and most fundamental political units of the day.

Thomas Jefferson, father of religious freedom in the United States (and I mean freedom to worship and NOT freedom from religion), envisioned that there would be two documents in every house…  a Bible and the US Constitution. The first would teach Americans how to have a servant’s heart and the other to inspire them to step up and serve their country.  In our young nation, the Bible was used as a text book for the purpose of teaching children moral principles to live by.  As time went on, the Bible was gradually replaced by other text books such as Noah Webster’s Primer.  Webster’s Primer taught children to spell but was also filled with moral Bible verses. In the front of this book was Mr. Webster’s picture, accompanied by the inscription: “Noah Webster, who taught millions to read but not one to sin.”  Webster’s Primer was eventually replaced by public school textbooks.  From the 1960′s on, the federal government (through the Supreme Court and then, in the late 70′s, by the US Department of Education), removed religion, morality, and ethics from its curriculum. The consequences of those decisions quickly followed, as teenage pregnancy, crime, lack of discipline, and disrespect for authority quickly rose.  It used to take a “community to raise a child,” but now that community is destroying children because the federal government demands that religion and morality take no part in that rearing.

The government is slowly eroding our religious rights.  Perhaps the more accurate statement is ‘Government is quickly eroding our religious rights.’ The First Amendment guarantees that “CONGRESS shall make no law respecting the establishment of religion OR prohibiting the free exercise thereof.”  The First Amendment only proscribes conduct by the federal legislature.  That is all.  In fact, the First Amendment proposed initially by James Madison read: “The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.”  The Supreme Court, a branch of the federal government, has incorrectly interpreted the First Amendment. Our former Chief Justice, William Rehnquist and our current Chief Justice, John Roberts, both have publicly acknowledged that the Court got that decision wrong and the “Wall of Separation” has no place in constitutional jurisprudence.  Yet the uninformed American people and even members of the media were quick to jump all over Christine O’Donnell, senatorial candidate from Delaware, in 2010 when she correctly noted in a debate that nowhere in the First Amendment do the words “Separation of Church and State” appear. Even lawyers and constitutional groups criticized her for not recognizing the phrase as “Jefferson’s summation of religious rights.”  I guess rights and liberties are in the eyes of the beholder.

The two clauses of the 1st Amendment right of Religion – the “Free Exercise” Clause and the “Establishment Clause” – exist in a delicate balance. If the government regulates too heavily under the Establishment Clause, it necessarily burdens the Free Exercise Clause, which is just as important and sacred.  And this is exactly what we are seeing.  The federal government is burdening our free exercise of religion. It is forcing us to worship at select times and places – such as our homes or in churches. Government is forcing us to be “neutral” and in denial when we are on public property, on public time, or acting in a public capacity.  The US Congress may not have “established a law prohibiting the free exercise of,” but the Supreme Court, under its illegal judicial activist power, has achieved that game result.

In a free society, people do not require constitutional authority to act and conduct themselves. Only government does.  Yet, notice how much we have to read between the law and make sense of constitutional interpretation these days to see if we are legally able to act as we would like, in accordance with our free will and the endowment of rights given by our Creator.  We know something just isn’t right in this land established for individual liberty.

Atheist groups claim that they can’t ride down a street or by a public square if they should see the word “Christ” or see a picture of a baby Jesus. They claim that it makes them uncomfortable.  Judges, for some reason, see everything in terms of “religion” or “no religion” and fail to see any other possible implications, such as history or heritage.  Nativity scenes at Christmas and crosses at Easter are hardly ever erected to promote one religion over another, but rather to educate and reinforce that certain holidays are grounded in a religious event. There are historical and traditional roots to our holidays and people have a right to know what they are. I, personally, see these symbols as paying proper respect to the holiday not as promoting a religion and maybe if people, and particularly judges, stopped thinking so myoptically, perhaps this country could maintain the integrity of the First Amendment as it was intended and stop the persecution of Christians.

The Constitution was drafted to transfer a limited list of responsibilities from the States to the federal government.  The Constitution was written for We the People, but was ratified on their behalf by the States.  Under the prevailing theory of government, which is a social compact or contract theory, individuals already transferred some of their sovereign rights for security to their States, in return for an absolute protection of their rights which is why the States were the signing parties to the Constitution. The compact was an agreement by the States (on behalf of the People) to bound by the particular design of government. The Constitution contained a serious of “checks and balances” to curb abuse and centralization of power in any one branch of government, but more important was the ability of the States to interpose to prevent the government from assuming any power it was not delegated.  And herein lies the most important reason for state sovereignty and states’ rights. The Constitution puts things into the proper perspective for people.  The document is OURS to limit government and not the government’s to restrain the people.  Too often we see government in terms of the latter.  The Constitution is our prenuptial agreement.  We don’t give up rights to the government just because of some relationship it may think it has.

Every authority on the Constitution, including the Federalist Papers, the transcripts from the state ratifying conventions, and the voluminous writings and warnings of our Founders point us in one unambiguous direction –  that the Constitution delegated limited and clearly-enumerated powers to a federal government (over the “sword and the purse”;  those powers primarily related to foreign policy, coining money, raising an army, providing a navy, declaring war, establishing patent laws, establishing a post office, establishing uniform laws of naturalization, and regulating of interstate commerce…), with the bulk of sovereign power to remain with the States, where government is closest and most responsive to the People.  The federal government could exercise no additional powers without the consent of the States, in the form of constitutional amendments.  Even Alexander Hamilton, the founder most opposed to a small, limited government, gave this assurance in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised (ie, the Constitution), is VOID.  No legislative act, therefore, contrary to the Constitution, can be valid.  To deny this principle would be to admit that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

The Supreme Court, after the decision in Marbury v. Madison (1803), assigned itself the grand position of ultimate arbiter and interpreter of the US Constitution. The decision held that when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid and that determination falls within the domain of the federal court system. As such, with this case, the Supreme Court granted itself the power of judicial review.  Anyone who fully understands the nature of the Constitution and the spirit under which it was written and ratified by the States, immediately comprehends the fatal flaw in that decision and the precarious situation we Americans have been put in as a result.  The Supreme Court is itself a branch of government.  Its judges are appointed under political circumstances and according to ideology that merely furthers a political agenda rather than necessarily protect the one thing that is most at stake –  individual rights.  So, in a dispute between the States and the federal government, the dispute is supposed to be resolved by which party???  The federal government?  Under this arrangement, the States are clearly subordinated to the federal government; the interests of the States are clearly subordinated to the federal government; the concerns of the States are clearly subordinated to the federal government; and the interpretations of the Constitution are certainly subordinated to the interpretation by the federal government.  As we can clearly see, and as Jefferson advocated strongly, it is impossible to comprehend that the States would have agreed to a system that assured their subordination.

One only need look at the Court’s decision in McCulloch v. Maryland (1819) to see the implications of having the federal government resolving disputes over what the meaning of the Constitution should be.  We were only on our third President and the Court was already making its own independent determinations as to how much power should be concentrated in the newly-created federal government.  The McCulloch case centered around the meaning of the “Necessary and Proper” clause of the Constitution and looked to two Founders for the authoritative interpretation of its proper scope – Thomas Jefferson and Alexander Hamilton.  Thomas Jefferson believed in a limited federal government with strong individual state governments. He was a strict constructionist who believed that every word of the Constitution makes a vital determination of power versus liberty.  He said: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”  Alexander Hamilton, on the other hand, believed in a strong central government. In fact, when he attended the Constitutional Convention in Philadelphia in 1787, he proposed a government modeled after the British monarchy, with a president appointed for life.  Although he eventually embraced the Constitution adopted by his fellow delegates, and he gave proper assurances as to the true intention of the document in the Federalist Papers, he continued to believe that Congress should have more legislative powers than those expressly stated in Article I, Section 8 of the Constitution.

The facts of the case are as follows:  After an initial failed attempt to establish a National Bank 1791, Congress finally established one in 1816. Many states opposed branches of the National Bank within their borders. They did not want the National Bank competing with their own banks. The state of Maryland imposed a tax on the bank of $15,000/year, which cashier James McCulloch of the Baltimore branch refused to pay. The case went to the Supreme Court.  Maryland argued that as a sovereign state, it had the power to tax any business within its borders. Furthermore, it objected to the establishment of a National Bank in the first place as an unconstitutional exercise of Congress’s power.  Maryland argued: “The powers of the General Government are delegated by the States, who alone are truly sovereign, and must be exercised in subordination to the States, who alone possess supreme dominion.” The government, in response, argued that the people have, in express terms, decided that  “this Constitution, and the laws of the United States, which shall be made in pursuance thereof, shall be the supreme law of the land.”  (US Supremacy Clause, Article VI).  It further argued that since the federal government was entrusted with ample powers on which the country depends, there must be ample means for their execution, and a national bank was “necessary and proper” for Congress to establish in order to carry out its enumerated powers, such as raising revenue, paying debts, etc.  The question before the Court, then, (“the subject of fair inquiry”) was ‘How far such means may be employed?’  In other words, what is the proper scope of the Necessary and Proper Clause.

Article I, Section 8, clause 18 reads: “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 or Officer thereof.”

Note that Jefferson nor the State of  Maryland were challenging the supremacy of the Constitution.  The status of supremacy was addressed in Federalist #33 (written by Hamilton) and Federalist #44 (written by Madison)] and was settled with the ratification by the States.  The issue was the interpretation of the Constitution and the proper scope of powers.  How broad would the Necessary and Proper powers be construed?

The Supreme Court  centered its analysis on the view of Jefferson and Hamilton, in part because they were both involved in the debate surrounding a National Bank before Congress in 1791.  According to Jefferson, the establishment of a National Bank exceeded Congress’ authority under the Constitution.  With respect to the Necessary and Proper clause, he argued that the Bank was not necessary, and that Congress could certainly meet its constitutional responsibilities without one.  He defended the interpretation of the Constitution by arguing that “necessary and proper” meant exactly that.  “Necessary” meant ‘necessary‘ and not merely ‘convenient.’  Sure, the Bank might be convenient, he noted.  But the Constitution allows only for those means which are “necessary” and not for those which are merely ‘convenient.’  Jefferson further argued that the delegates to the Constitutional Convention specifically rejected the power to erect a bank because it would have caused the Constitution to be rejected by the States.  In 1800, James Madison wrote that Jefferson’s interpretation of the clause is “precisely the construction which prevailed during the discussions and ratifications of the Constitution,” and “it cannot too often be repeated that this limited interpretation is absolutely necessary in order for the clause to be compatible with the character of the federal government, which is possessed of particular and defined powers only, rather than general and indefinite powers.”

Hamilton countered with a lesson on the meaning of the word “necessary,” just as Bill Clinton gave America a lesson on the meaning of the word “is.” [See Contending that his statement at his grand jury hearing that “there’s nothing going on between us” had been truthful because he had no ongoing relationship with Lewinsky at the time he was questioned, Clinton said, “It depends upon what the meaning of the word ‘is‘ is].  Hamilton explained that “necessary often means no more than needful, requisite, incidental, useful, or conductive to.”   Contracts often include a term that provides some power to accomplish the goals of the agreement (a ‘necessary and proper’ clause, if you will), but Hamilton’s view was more that the Constitution is not an firm legal document but more of a “rubber” instrument, open to broad interpretations.  In other words, it could be broad enough to be interpreted as Congress sees fit.  Hamilton might just have been the father of the “living document” view of the Constitution.

Jefferson was highly critical of the Marbury decision as violating states’ interests and destroying the balance of power between the states and federal government and by 1819 was growing ever more leery of the growing powers of the federal judiciary.  The Court again rejected Jefferson’s view of a limited federal government and assigned another large grant of power to the federal government. Rideronthenet, a blogger, wrote: “Government tends to expand its own powers to the furthest extent tolerated by a majority of citizens.”   So true.

Chief Justice John Marshall wrote, “Although, among the enumerated powers of government, we do not find the word ‘bank,’…we find the great powers to lay and collect taxes; to borrow money; to regulate commerce…  We conclude that  –

1).  The clause is placed among the powers of Congress, not among the limitations on those powers. 2).  Its terms purport to enlarge, not to diminish, the powers vested in the Government. It purports to be an additional power, not a restriction on those already granted. No reason has been or can be assigned for thus concealing an intention to narrow the discretion of the National Legislature under words which purport to enlarge it. The framers of the Constitution wished its adoption, and well knew that it would be endangered by its strength, not by its weakness. Had the intention been to make this clause restrictive, it would unquestionably have been so in form, as well as in effect.  (ie, the framers would have included the word “expressly limited to…”)

We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.”

Marshall also noted an important difference between the Constitution and the Articles of Confederation.  He wrote that the Articles stated that the states retained all powers not “expressly” given to the federal government. The Tenth Amendment, on the other hand, did not include the word “expressly.”  He argued that this was further evidence that the Constitution did not limit Congress to doing only those things specifically listed in Article I.

And finally, the Court ruled that Maryland could not tax the national bank: “That the power to tax involves the power to destroy; that the power to destroy may defeat and render useless the power to create; that there is a plain repugnance in conferring on one Government a power to control the constitutional measures of another, which other, with respect to those very measures, is declared to be supreme over that which exerts the control, are propositions not to be denied. But all inconsistencies are to be reconciled by the magic of the word CONFIDENCE.  Taxation, it is said, does not necessarily and unavoidably destroy. To carry it to the excess of destruction would be an abuse, to presume which would banish that confidence which is essential to all Government.”

Notice three things with this decision:  (1) The Court clearly failed to read the Federalist Papers and the transcripts of the State ratifying conventions, all declaring that the government would be limited in scope.

(2)  The power of a state to tax an entity of the federal government would be the “power to destroy,” as the Court noted. Yet the Court has no problem with the excess taxation of individuals.  Excess federal taxation of individuals reduces the amount of taxation the state can morally levy on its inhabitants and therefore the state suffers at the expense of an excessively-funded federal government.

(3).  Hamilton’s views of a “flexible” Constitution were given improper weight, in relation to the overwhelming documentation to the opposing view, and by far more credible Founders than Hamilton. Again, Hamilton showed up to the Constitutional Convention to propose and promote the monarchist view of government. Americans just won their independence from a tyrant King George and Hamilton was pushing the very same system for America. He was the strongest advocate of a strong central government and the least committed to the cause of states’ rights.  When he was unanimously and soundly rejected in Philadelphia, he stomped out of Independence Hall and went back to New York to pout.  When the Constitution was written, although he had withdrawn from the Convention, Hamilton returned to sign it.  He also noted that “he seemed to be very much out of step with the rest of the Constitution’s drafters.”  When it seemed possible that two of the most powerful states in the Union – New York and Virginia – would not ratify the Constitution because it appeared to take too much power from the States, Hamilton stepped it up and wrote at least half of the Federalist Papers to explain the interpretation and scope of each section of the Constitution and to give assurances to those states still having reservations.  So, knowing that the States were looking for the bona fide interpretation of the Constitution and were looking for assurances on which to ratify and assent to it, the Supreme Court decided to look past the spirit of the Federalist Papers and gave weight to Hamilton’s “personal” view that the Constitution should be read broadly.  This would be the approach that the Court would take all too often in our history.

Ironically, even Hamilton insisted, in Federalist #78, that unless the people had solemnly and formally ratified a change in the meaning of the Constitution, the courts could not proceed on any other basis.

We saw the same type of misplaced emphasis and incorrect interpretation by the Supreme Court when it interpreted the Commerce Clause under FDR’s administration.  We also saw how the Supreme Court applied the 14th Amendment, to the destruction of States’ rights, in disregard to the intent of that amendment.  Religious rights have been eroded in a series of decisions stemming from this poisoned interpretation. And no doubt, marriage rights will be eroded in this way as well.  An analysis of Supreme Court decisions from the founding of our country to the present will unfortunately show the American people that the Supreme Court very rarely referenced the Federalist Papers up until about 1930.  By “very rarely,” I mean they were referenced about 4-5 times total in a 10-year period.  The frequency increased in the 1960′s when the Court began to reference the Papers about 2 times each year.  When William Rehnquist joined the Supreme Court as Chief Justice in 1968, there was a significant increase in the use of the Federalist Papers in deciding cases touching on the Constitution.

So, we see the slow but constant erosion of the Constitution’s protection of liberty by the erosion of its fundamental and critical elements of check and balance.  First, the Supreme Court elevated its power early on, in disregard to the assurances given by our Founders in Federalist #78 and Federalist #81, and then it almost completely destroyed the balance of power between the States and federal government with the 14th Amendment.  From the very beginning, with Jefferson’s term as President, the Court and the other branches systematically concentrated power in the federal government and did so with a willing and an intentional blind eye to the assurances and warnings provided by our Founders (in disregard to their oaths).

The federal government cannot be permitted to hold a monopoly on the interpretation of the Constitution and on what it believes is best for the American people, when everything our Founders stood for and promoted was the notion that people must be protected from their government.   If the Supreme Court should end up upholding Obamacare (Patient Protection and Affordable Care Act) when it finally hears the case in mid-2012, then we know that the US Constitution is dead.  We will know it is meaningless in constraining the government with respect to the People.  And that would be the point at which Americans would need to embrace the words of the Declaration of Independence which reads: “That whenever any form of government becomes destructive to these ends, it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.”

That being said, and that point hopefully having been made, we need to be concerned with the government’s growing hostility to religion and its ever-growing disengagement with the American people and its independent agenda.  Judging by the trend in our nation’s history of government concentrating its power and making decisions it believes are “in the best interests of the county,” and the Supreme Court steadily stripping our rights, we should absolutely be concerned at the future of our freedom to exercise our religion freely.  We are heading in a selfish direction, where individual pursuits trump general moral guidelines for strong individual and family foundations.  We are heading in a direction where it is “cool” and acceptable to bash Christians.  One look no further at the vile tweet that hate mongerer Bill Maher sent a few days ago attacking Tim Tebow for his public displays of faith (ie, his prayers before each game).   Amoral lifestyles and hate groups are tearing down traditional institutions that have been place to promote stability and real human value in society. Christian religious groups are being harassed; schools are no longer the beacon of learning that they once were; and marriage is being attacked.  For example, there are efforts to undermine the traditional status of “marriage.”  Even President Obama announced that the government would not enforce DOMA (the federal Defense of Marriage Act).  The executive branch is supposed to enforce the laws of the land.  Challengers of traditional marriage want to remove the religious ties to marriage so that homosexual couples can enjoy the same status as heterosexual couples without feeling any ‘stigma.”  But we all know that there are strong religious overtones and implications in marriage, which there should be.  Without such, marriage would be treated merely as a contract, and the bonds of marriage are so much more sacred and important than that. The bedrock foundation of a strong moral society is a stable family unit with properly-defined roles and responsibilities.

We are becoming a nation of conflict and of hate because we’ve allowed religion to be taken out of public life and out of our schools. When we go God’s way, we will necessarily bump into the Devil. So we have to be strong. We’re already taking on the government so maybe taking on the Devil won’t seem so bad in relation. At times, they seem to be one and the same anyway.

Let’s continue to realize how important the Christian faith is to the integrity of this country and keep the pressure on and reflect and pray and find out how we can best advocate for our religious principles and at the same time for the principles that underlie and expand our liberty. A stand for religious principles is a stand for liberty.

I have been called many names for speaking out for the importance of religion and for the rightful recognition of Christianity in America.  The names don’t bother me.  Rather, I’m honored to speak up when I can.  I’m honored to reflect upon the contributions of our religious forefathers, which are too numerous to mention.  I’m honored to speak for those who keep the faith and who show goodness and virtue in word and deed and set a living example by the lives they lead.  It’s these people who give hope to many that our country may not be doomed to darkness.  I’m always reminded of why it’s important to speak out against our government when they are violating our rights when I remember a quote I read at the Holocaust Museum in Washington DC. It was written by Pastor Martin Niemoller, who would not go along with the Nazis and was sent to Dachau concentration camp. Pastor Niemoller wrote:

First they came for the Socialists, and I did not speak out — because I was not a Socialist. Then they came for the Trade Unionists, and I did not speak out — because I was not a Trade Unionist. Then they came for the Jews, and I did not speak out — because I was not a Jew. Then they came for me — and there was no one left to speak for me.


Details of Everson v. Board of Education (“Wall of Separation”) case and discussion of Federalist Papers #78-81 –  See  Diane Rufino, “THE JUDICIARY:  The Supreme Court Judicial Activism,” July 2011.  Referenced at:

Thomas E. Woods Jr., Nullification, 2010, Regnery Publishing.

Rideronthet (blog name), “Jefferson v. Hamilton, Federal Powers, and the Marshall Court, March 9, 2009.  Referenced at:

Bill of Rights Institute, McCulloch v. Maryland (1819).  Referenced at:

McCulloch v. Maryland, 17 U.S. 316 (1819).  Referenced at:

Citations to the Federalist Papers by Supreme Court –    Professor Daniel Coenen, “Fifteen Curious Facts About the Federalist Papers,” University of Georgia School of Law, April 1, 2007.  Referenced at:

Patrick Henry: Why Didn’t Anyone Listen to Our Most Passionate Proponent of Liberty?

      by Diane Rufino, Dec. 28, 2011

On March 23, 1775, Patrick Henry delivered one of the most important speeches in our country’s history.  Attending a meeting of the Second Virginia Convention at St. John’s Church in Richmond, Henry intended to present a proposal to organize a militia in every Virginia county. The Convention met at St. John’s Church rather than the Capitol in Williamsburg because of opposition from England’s Royal Governor Lord Dunmore and his Royal Marines.  Suspicious of the oppressive taxes and coercive policies of George III and fearful of the build-up of British forces in the colonies, Henry proposed raising independent militias “to secure our inestimable rights and liberties from those further violations with which they are threatened.”  Not everyone at the Church appeared to agree with him.  At that point he rose, and with his wrists crossed like that of a slave, he delivered a speech so eloquent and so fiery and so ringing in defense of liberty that it has been recognized as the colonists’ call for independence:

“The question before the House is one of awful moment to this country….  Mr. President, it is natural to man to indulge in the illusions of hope. We are apt to shut our eyes against a painful truth, and listen to the song of that siren till she transforms us into beasts. Is this the part of wise men, engaged in a great and arduous struggle for liberty? Are we disposed to be of the number of those who, having eyes, see not, and, having ears, hear not, the things which so nearly concern their temporal salvation? For my part, whatever anguish of spirit it may cost, I am willing to know the whole truth; to know the worst, and to provide for it.

I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past. And judging by the past, I wish to know what there has been in the conduct of the British ministry for the last ten years, to justify those hopes with which gentlemen have been pleased to solace themselves, and the House? Is it that insidious smile with which our petition has been lately received? Trust it not, sir; it will prove a snare to your feet. Suffer not yourselves to be betrayed with a kiss. Ask yourselves how this gracious reception of our petition comports with these war-like preparations which cover our waters and darken our land. Are fleets and armies necessary to a work of love and reconciliation? Have we shown ourselves so unwilling to be reconciled, that force must be called in to win back our love? Let us not deceive ourselves, sir. These are the implements of war and subjugation; the last arguments to which kings resort. I ask, gentlemen, sir, what means this martial array, if its purpose be not to force us to submission? Can gentlemen assign any other possible motive for it? Has Great Britain any enemy, in this quarter of the world, to call for all this accumulation of navies and armies? No, sir, she has none. They are meant for us; they can be meant for no other. They are sent over to bind and rivet upon us those chains which the British ministry have been so long forging. And what have we to oppose to them? Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free² if we mean to preserve inviolate those inestimable privileges for which we have been so long contending²if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave………..

Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

Patrick Henry is one of most important Founding Fathers.  It is very likely that we wouldn’t have pushed for our independence from Great Britain if it weren’t for Henry’s fiery speech that night on March 23, 1775 and for his constant pleas to the colonists to stand up for their God-given liberties. Once our independence was won, he refused to represent Virginia at the Constitutional Convention in 1787 because he was suspicious of the type of government that James Madison and Alexander Hamilton had in mind.  In fact, in declining to go, he stated: “I smell a rat in Philadelphia.”  He caught wind that Madison and other members of the Virginia delegation and Hamilton as well intended not to modify the Articles of Confederation, as their invitation stated, but rather to scrap them and start from scratch.

But what most people don’t know is that Patrick Henry was a staunch anti-Federalist.  He believed that Americans and the States would ensure their own demise if they ratified the US Constitution.  He joined other famous Americans in publicly criticizing it.  Those other Americans included Richard Henry Lee, who was an early President of the Continental Congress (under the Articles of Confederation)  and then more famously the  delegate from Virginia who presented the formal resolution to the Congress calling for a Declaration of Independence, NY Governor George Clinton (who so aggressively opposed the Constitution that the state of NY refused to ratify it), George Mason, of Virginia (who was so disappointed with the final draft of the Constitution that he refused to sign it), Elbridge Gerry of Massachusetts, and Robert Yates, a NY judge and friend of Clinton.  In general, the anti-Federalists opposed the Constitution because they were much less optimistic than the Federalists about the ability of civic virtue and the system of checks and balances to keep the national government in check.  Because they lost the battle over ratification of the Constitution, very little attention is paid to the anti-Federalists.

In response to the criticisms of the Constitution by the anti-Federalists – published as a series of essays under such names as Cato (Clinton), Brutus (Yates), The Centinal, and the Federal Farmer (Lee) – James Madison, Alexander Hamilton, and John Jay wrote the Federalist Papers, to give proper assurances that the criticisms were unfounded.  [It is ironic that those who supported the Constitution were called the “Federalists” yet those who criticized the Constitution for not protecting States’ rights enough were called “Anti-Federalists”].  Henry didn’t trust the assurances.

Patrick Henry, one of my favorite Founding Fathers because of his honesty, passion, and sheer devotion to the exercise and protection of fundamental liberty, opposed the US Constitution openly and aggressively.  He was concerned about the consolidation of federal authority and especially the power concentrated in the office of the President.  A particular concern was the President’s authority and command over the armed forces.  Henry predicted that a president could use the military “to run roughshod over the republic.”  (Lincoln and the Civil War!!)  He was highly skeptical of the broad taxing power delegated to the Congress.  He believed the Constitution allowed the government to control the governed, with little ability and no obligation to control itself.  And he argued that the Constitution effectively ignored the essential role of the States.

Furthermore, Henry always wondered whether Americans had the moral fiber to safeguard the freedom secured by the American Revolution. By 1776, he saw a moral depravity that concerned him, and he believed it would eventually set the stage for tyranny.  The delegates of the Constitutional Convention, he argued, foolishly assumed that all politicians would be virtuous men.  He criticized many of the Founders and drafters, Christian republicans as they were, for not realizing that this assumption was a fatal flaw.

“Nothing could check a national government entrusted with vast military might and the unlimited authority to tax……  Our human rights and privileges are rendered insecure, if not lost, by this Constitution,” he wrote.  What he meant by this, as he often stated, was that the Constitution represented an outright repudiation of the American Revolution.

As an alternative to all the States ratifying and binding themselves to document that he believed would destroy liberty and ultimately establish a tyrannical government, Patrick Henry proposed that States establish sectional confederacies (multiple republics).  He further supported this approach because it was his firm belief that the Constitution would give special treatment to Northern states over Southern states and the latter would forever be prejudiced in representation and legislation.  Another little known fact is that Henry proposed secession in 1788, certainly for Virginia, and for other states as well.

Benjamin Harrison, one of the most conservative of the signers of the Declaration of Independence, from Virginia, was also critical of the new Constitution.  He said that although the collection of States had its share of problems, the Constitution would “prove worse than the disease”  (one of the “diseases” was the Constitutional Congress’ lack of enforcement power).  Even Thomas Jefferson expressed reservations about the Constitution.  He thought it was too “energetic” a proposal.  In a letter he wrote to James Madison from France, he said: “I am not a friend to a very energetic government.  It is always oppressive.”  [Luckily for us, Jefferson was successful in finally convincing the writers of the Constitution to draft a Bill of Rights to set definitive limits of the government on individual rights].

In opposing the Constitution and its ratification, Patrick Henry believed he was defending the ideals of the Revolutionary War and the Declaration of Independence.  He argued that America had just fought for their independence from an abusive political regime (the British monarchy and Parliament) and now Madison and Hamilton were intending to put the newly-free nation back under a strong central government, with a strong executive.  He argued that we were trading one tyrant for another.  To Henry, this was a repudiation of all the liberties that he and the other patriots had fought for.  As he explained: “A monstrous national government was not the solution….  Many had to die to be free from such a regime.”

In an opening speech at the Virginia Ratifying Convention in 1788, Henry pleaded: “A wrong step now will plunge us into misery and our republic will be lost.”  In one of his very last public speeches, given at the same Convention, he delivered this heartfelt message: “Liberty is the greatest of all earthly blessings. Give us that precious jewel and you may take everything else.  There was a time when every pulse of my heart beat for American liberty and which, I believe, had a counterpart in the breast of every true American.  But suspicions have gone forth publicly – suspicions of my integrity – that my professions are not real.  23 years ago, I was supposed a traitor to my country.  I was then said to be a bane of sedition because I supported the rights of my countrymen.  I may be thought suspicious when I say that our privileges and rights are in danger.  But, Sir, a number of people of this country are weak enough to think these things are true….   My great objection to this (new) government is that it does not leave us the means of defending our rights.”


Lloyd J. Matthews, “Patrick Henry’s ‘Liberty or Death’ Speech and Cassius’ Speech in Shakespeare’s Julius Caesar,” The Virginia Magazine of History and Biography (Virginia Historical Society), Vol. 86, No. 3, July 1978.  Referenced at:

Thomas Kidd, Patrick Henry: First Among Patriots, 2011, Basic Books

The Proper Role of Government

      by Diane Rufino, Dec. 19, 2011

The need for government, plain and simple, is because absolute freedom is impossible. However much we believe that freedom is the natural right of man, anarchy is not feasible in a world of evil and imperfect men.

Governments, like those in the United States, are the intentional creations of free people. People mutually agree to transfer some of their rights to a governing body in order that they may live an ordered and more fruitful existence. Yes, they create governments so that liberty, in effect, can be enlarged.  How is this possible?  Consider how much freedom a person has who has to stay home to guard and protect his valuable property.  He can’t work successfully or travel freely.  But police and fire departments can guard and protect his property on his behalf.  In return, free people agree to be bound by the laws of government. And these laws, according to Natural law and natural rights, are specifically intended to prevent and punish bad conduct while promoting and rewarding good conduct.

First and foremost, the role of a government is to protect individual rights. According to Cicero, the preeminent lawyer of ancient Rome, and the great thinkers of the  Enlightenment Era such as John Locke and Thomas Hobbs, the primary role of government is to protect individual life, liberty, and property.  To so do, a government must perform three basic functions:  (1) Police – to protect individuals from domestic criminals and predators;  (2) Military – to protect the community and individuals from foreign threats; and (3) Judiciary – to provide the means for individuals to settle disputes according to established law and without resorting to force. The government of a free people does not regulate its citizens nor does it coerce or influence their behavior in any way.  The government of a free people is benevolent and not intrusive.  Free and good people should never be afraid of their government.  They should never be afraid to criticize it or seek to alter it so that it better suits their liberty needs.  And should never be confronted with such voluminous statutes that they can’t reasonably be expected to read or understand them or their implications and then be punished for it.

In an ideal situation, as our early freedom-loving Americans and Founding Fathers envisioned, under a proper government, a private citizen is legally free to do as he pleases (as long as he doesn’t violate the rights of others), while government is bound by laws and government officials are bound both by law and their oaths.  In other words, a private citizen may do anything “except that which is legally forbidden and a government official may do nothing except that which is legally permitted.”  To some extent understanding of government helped our Founders almost unanimously realize that our country would be established as a republic rather than a pure democracy.  We would be a nation of laws and not a nation of men. Under such a system, the rights of all individuals would be properly respected and protected.

With the surrender of Lord Cornwallis at Yorktown in 1781, the colonists won their independence from Great Britain and secured their liberty.  But how would it be preserved?  That was the question. The answer, according to our Founding Fathers, was a carefully-designed government, limited to the precise wording of a Constitution, which would protect those individual rights and liberties that the colonies had just fought for.  The Constitution, written on behalf of a sovereign people, laid out a government of limited and clearly-defined responsibilities. All other responsibilities were left to the States and to the people themselves to manage their own lives and affairs.

The fact that our Founding Fathers carefully crafted, debated, and ratified a Constitution to preserve the liberties they had just fought for is the key to understanding the spirit and construction of our great document.  And the fact that representatives to a Continental Congress created and adopted  a Declaration of Independence which set out the ideals and values upon which our newly independent nation would be established is further evidence.

Our Declaration of Independence states:  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government…………”

As we can infer from the Declaration, our Founders believed that certain human liberties are so fundamental to one’s existence, humanity, and individuality that they must come from our Creator.  If that is the case, then no government can take them away.

The wording that Thomas Jefferson chose for the Declaration is significant because it evidences a strong belief that our Founders had in Natural Law, a philosophy introduced by Marcus Tullius Cicero, the leading attorney of his day and defender of the Roman republic, and underpinning the ideals of a government “of the people, for the people.”  John Locke, William Blackstone, William Hobbs, and others based their philosophies of government on Natural Law, and it was these men who greatly inspired our Founders.

Essentially, Natural law is what spontaneously arises when there is no government, because of “who we are” and who created us.  It is not codified in any statute but is a matter deeply and fundamentally engrained in the human spirit. Cicero, who lived at the time of Julius Caesar, inferred the following from his observations of society, government, and depravity:  Before there was government, there was the individual.  A Creator, or higher power, who created the universe then created people. This higher power which created the universe also endowed humans with a bit of its own divinity. That is, He gave us the powers of speech, intelligent thought, reason, and wisdom. We love and nurture our young.  We build life-long family units. (We are created “In His Image”).  As a result of this “spark of divinity,” humans are and should be (forever) linked to their Creator and should honor this relationship. Because humans share reason with this higher power, and because this higher power is presumed to be benevolent, it follows that humans, when employing reason correctly, will also be benevolent.  Reason and benevolence form the foundation of law.  When applied in a society, it is called justice.  People can form strong and beneficial communities because laws will serve the good in man’s nature and discourage and punish the bad.

Natural Law is timeless. It is valid for all nations for all times.  It operates best when men are virtuous and honorable, and it fails when men are greedy and depraved.  One can argue that our Founder’s fatal flaw in creating the Constitution was assuming that Americans could remain virtuous and honorable, because only then could laws and government serve the “good” nature in man and promote moral societies.

Philosophers like Cicero reasoned that Natural law derives from the nature of man and the world, just as physical law derives from the nature of space, time, and matter.  But Cicero’s law presupposes a benevolent and intentional Creator.  It is therefore a moral law.  All men, being rational and tending towards benevolence, pursue paths and develop their potential dictated by their natures.  That is, their conduct embodies moral and ethical codes.  These values are the foundations of a good, strong, and productive society.  Many may see where Natural law harmonizes with the theory of evolution.

In his book on Natural Law, A. Kenneth Hasselberg wrote:  “A social order is not possible unless man is able to conceive of those norms of conduct which are necessary to its establishment and preservation, namely, respect for another’s person and for his rightful possessions, which is the substance of justice … But justice is the product of reason, not the passions. And justice is the necessary support of the social order; and the social order is necessary to man’s well-being and happiness. If this is so, the norms of justice must control and regulate the passions, and not vice versa.

Critics will claim that natural law should serve man’s “nature” and hence, what makes him ‘happy,’ but that would minimize and potentially contradict biological law. Biological law states that the driving force for all living things is the ability to successfully live and reproduce and propagate the species.Man can strive for material (and even amoral) happiness but if it harms his ability to exist successfully, then it’s clear this criticism is flawed.  Psychologist Leonard Carmichael wrote:  “Because man has an unchanging and an age-old, genetically determined anatomical, physiological, and psychological make-up, there is reason to believe that at least some of the “values” that he recognized as good or bad have been discovered or have emerged as human individuals have lived together for thousands of years in many societies. Is there any reason to suggest that these values, once identified and tested, may not be thought of as essentially fixed and unchanging?  For example, the wanton murder of one adult by another for the purely personal amusement of the person committing the murder, once it is recognized as a general wrong, is likely always to be so recognized. Such a murder has disadvantageous individual and social effects.”

British philosopher, John Locke, took the Cicero’s concept of Natural Law one step further and applied it to government.  According to Locke, people (not rulers or governments) are sovereign. Individuals, possessing inherent rights, are the real sovereigns. Governments derive their consent and power from sovereign people under a compact theory (contract theory) doctrine.  Consent can either be in written contract form (a constitution) or implied, by an implied agreement to be served by government and to subjected to its laws.

In order to understand the premise for John Locke’s theory on government, ask this question: Which comes first –  individuals or governments?   We all know the answer.  Individuals, with certain fundamental sovereign rights, form into communities. They delegate their power over their rights and property to a local government to protect them. As John Locke explained: “Individuals have sovereign rights which no government can take away.  (Government can only exercise power on behalf of the people).  As such, government is morally obliged to serve people, namely by protecting life, liberty, and property.”

John Locke was one of the first great thinkers of the Enlightenment Era (or age of Reason).  He believed in the sovereignty of the individual – the inherent rights of the individual to self-protection.  Locke understood that the individual has natural rights to life, liberty and property, and therefore has the right to protect them.  It is from this basic premise that he explored the role of government.  We can read his views in his extensive essays entitled The Two Treatises of Government, published in 1688 and 1689.  In the first treatise, Locke refutes the belief in the divine right of Kings.  It is in the second treatise, however, where we see the fundamentals of Locke’s political theory.

Locke’s fundamental assertion is one that follows Cicero’s writings.  He explains the state of  nature has human beings enjoying most of their natural rights without the state. That is, rights are not granted by the state…  only certain privileges. The fact that property could be freely exchanged, sold, or accumulated in that natural condition led Locke to argue that governments ought not interfere with most aspects of the economy and society. Moreover, he reasoned, no people living in a natural state of freedom would consent to have all their liberty taken away.  Liberty is not the government’s to take away. Therefore, any government requires the consent of the people to “protect the rights of life, liberty, and property” that the people themselves have the natural authority to do. (The right of self-protection).  This, therefore, makes government ‘conditional.’  It also dictates that the role of the state ought to be limited to protecting life, liberty, and property from those few predatory members of the human race whom Locke referred to as the “quarrelsome and the contentious.”

As Locke explained in his Second Treatise on Government, each person is an individual sovereign, with inherent rights that he possesses over his person and his property (especially his intellectual and personal property).  He reasoned: “How can we, as individuals, give consent to others – local government, state government, etc – to make rules for us if we don’t have the original power to make rules for ourselves?”

According to Locke, everyone is entitled to live once they are created (Life), everyone is entitled to do anything they want to so long as it doesn’t conflict with the first right (Liberty), and everyone is entitled to own all they create or gain through gift or trade so long as it doesn’t conflict with the first two rights (Property).  Since the role of government is limited, its power should also be limited. Locke proposed that government be limited through a separation of powers scheme, where each branch checks the other.  He also stressed that once government becomes destructive of the reasons for its existence, then the people have the right, and even the moral obligation, to abolish it.  We can see how strong an influence John Locke had on Thomas Jefferson and on our other Founders.

Unfortunately, when laws become too numerous and detailed, they can destroy liberty just as surely and effectively as having no law.  We are living witnesses to that today.

John Locke wrote that the decision by a group of people to delegate authority to a government creates a social compact or social contract.  Often the compact is memorialized in a constitution, a written agreement that sets limitations on government power and represents the consent of the people.  Laws established for the community naturally flow from this initial agreement and therefore a constitution is superior to ordinary laws created by any legislature. Locke’s idea of government is one of a limited constitutional regime.  Therefore, according to Locke, constitutions are social contracts or social compacts. It is most reasonable to assume that our Founders, the States, and our early Americans viewed the US Constitution as such. If you read the Articles or Declarations of Secession drafted and adopted by the 11 states in 1860-61, many expressly state that the Constitution is a social compact.

For example, read what South Carolina in its ” Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union,” adopted on December 24, 1860: “By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May , 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.”

Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.”

A social contract is an agreement intended to explain the appropriate relationship between individuals and their governments.  People form an implicit social contract, ceding their natural rights to an authority to protect them from abuse.  According to the dictionary, a social contract (aka, social compact) is a voluntary agreement among individuals by which, according to any of various theories, such as those put forth by Hobbes, Locke, or Rousseau, organized society is brought into being and invested with the right to secure mutual protection and welfare or to regulate the relations among its members.

Locke explained that people escape their primitive state by forming into communities and thus entering a social contract under which the state provides protective services to its citizens. Locke regarded this type of contract as revocable.  A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government.  [In the case of a federation of states, for example, one state would no longer “give consent” and therefore dissociate itself from the contract, thereby dissolving its bond with the other states].

In every compact or contract between two or more parties, there is mutual obligation. The failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other.  This, in fact, was the position of the state of South Carolina in its Declaration of Secession.

While we today barely talk about this fundamental concept, the States were keenly aware of the relationship created by the Constitution and obligations associated with it.  Look at the phraseology officially given by the state of Virginia when it finally adopted (reluctantly) the Constitution on June 25, 1788:

The Virginia Ratification of the Constitution of the United States

Virginia, to wit:

“We the delegates of the people of Virginia, duly elected in pursuance of a recommendation from the general assembly, and now met in convention, having fully and freely investigated and discussed the proceedings of the Federal Convention, and being prepared as well as the most mature deliberation hath enabled us, to decide thereon, Do, in the name and on behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power nor granted thereby, remains with them and at their will; and therefore no right, of any denomination, can be cancelled, abridges, restrained or modified by the congress, by the senate or house of representatives acting in any capacity, by the president or any department, or officer of the United States, except in those instances in which power is given by the constitution for those purposes; and that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained or modified by any authority of the United States.”

We all know that Virginia, and other states as well, refused to ratify the Constitution until special assurances were given that the federal government would remain constrained and would not burden individual rights. One of those assurances was the addition of a Bill of Rights and others were given in The Federalist Papers, written by James Madison and Alexander Hamilton, two of the delegates and drafters of the Constitution.

In his book, Republic, Plato introduced social contract theory.  In a scenario involving Socrates, Socrates refused to escape from jail to avoid being put to death.  He argued that since he had willingly remained in Athens all of his life despite opportunities to go elsewhere, he had accepted the social contract  (thus he agreed to abide by the local laws, including submitting to the justice process). The idea of the social contract is one of the foundations of the American political system. This is the belief that the state only exists to serve the will of the people, and they are the source of all political power enjoyed by the state. They can choose to give or withhold this power. The origin of the term social contract can be found in the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote Leviathan in response to the English Civil War. In this book he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power at any time over others. Hobbes’ theory was that the people mutually agreed to create a state, only giving it enough power to provide protection of their well-being. However, in Hobbes’ theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought. John Locke, on the other hand, saw the relationship as still favoring the individual and the rights inherently bestowed on him.  He believed that revolution was not just a right but an obligation if the state abused its given power against the individual.

Thomas Paine, in his Rights of Man, wrote: “The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”

This all makes sense.  Local governments and social contracts/compacts make sense.  A local government can provide services easier than individuals who must go to work and do other things. What is your fundamental liberty worth when you can’t travel because you have to stay around to guard and protect your property?  So, some government is necessary for maximum liberty.  But the individual is careful to make sure that only certain services are delegated. As Madison explained in the Federalist No. 45, power was always meant to remain closest to the people. He wrote: ” The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”

But a federal or central government was something different.  It is a government that isn’t close to the people.  And our Founders understood that.  And perhaps for that reason, the Constitution was written for the benefit of the American people. (And of course for the States, who valued their sovereign power as well, which they too derived from their people).  The Constitution was intended to outline exactly what powers and responsibilities were delegated away to a centralized (federal) government – “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”

While the Constitution inspired many, it also caused great concern and generated much criticism and apprehension. Three delegates to the Constitutional Convention in Philadelphia in 1787 refused to sign the document because they felt it was not adequate.  Those delegates were George Mason and Edmund Randolph, of Virginia, and Elbridge Gerry of Massachusetts. Several entire states refused to ratify it because they didn’t trust it to create a government that could remain constrained with respect to the power delegated to the States and the People.  Those states were New York, North Carolina, and Rhode Island).  And many important men, some who were, in fact, fellow Founding Fathers, publicly criticized it or wrote voluminous essays addressing its flaws.  These men included Richard Henry Lee, a Founder who made the official resolution for a formal declaration of independence from Great Britain, NY Governor George Clinton, NY lawyer Robert Yates, and others who wanted to remain anonymous. The essays they wrote were collectively known as the Anti-Federalist Papers.  James Madison, Alexander Hamilton, and John Jay addressed these criticisms in a series of retaliatory essays called the Federalist Papers. To this day, the Federalist Papers remain as the official explanation as to the scope and intent of the Constitution, including its phraseology and its delegation of powers.  In applying a contract theory approach to the Constitution, it would be important to note that the Constitution was ratified by the States in reliance on the assurances given in the Federalist Papers.  [According to established contract law, a contract is construed according to the original intent of the parties].

What most people don’t know is that Patrick Henry, our beloved patriot who proclaimed “Give Me Liberty or Give me Death!” was a staunch anti-Federalist.  He had serious reservations about the ability of the US Constitution to protect liberty for any considerable length of time. In opposing the Constitution and its ratification, Patrick Henry believed he was defending the ideals of the Revolutionary War and the Declaration of Independence.  He argued that America had just fought for their independence from an abusive political regime (the British monarchy and Parliament) and now Madison and Hamilton were intending to put the newly-free nation back under a strong central government, with a strong executive.  He argued that we were trading one tyrant for another.  To Henry, this was a repudiation of all the liberties that he and the other patriots had fought for.  As he explained: “A monstrous national government was not the solution….  Many had to die to be free from such a regime.”

In one of his very last public speeches, given at the Virginia Ratifying Convention in 1781, he delivered this heartfelt message: “Liberty is the greatest of all earthly blessings. Give us that precious jewel and you may take everything else.  There was a time when every pulse of my heart beat for American liberty and which, I believe, had a counterpart in the breast of every true American.  But suspicions have gone forth publicly – suspicions of my integrity – that my professions are not real.  23 years ago, I was supposed a traitor to my country.  I was then said to be a bane of sedition because I supported the rights of my countrymen.  I may be thought suspicious when I say that our privileges and rights are in danger.  But, Sir, a number of people of this country are weak enough to think these things are true….   My great objection to this (new) government is that it does not leave us the means of defending our rights.”

Today we are in a Constitutional crisis.  A constitutional crisis is a severe breakdown in the orderly operation of government because the branches have abandoned their roles and responsibilities under the Constitution.  A constitutional crisis occurs when power is exerted that doesn’t exist or is not authorized under the Constitution.  There is not much we can do to preserve the liberty and power originally intended to vest in the States and We the People if we are not willing to become educated and informed and appreciate the reality that every decision made in Washington DC has potential consequences for freedom and liberty in this country…. even when those decisions are cloaked in such benevolent terms as “general welfare,” “entitlement,” “green,” and “sustainable development.”  Moreso, we must be disciplined to elect good, constitutionally-minded men and women to Washington to strip away all government power not authorized by our founding document and committed to elect officials to state government who believe strongly in States’ rights.  Only with the return of strong independence states can we begin to put necessary checks on our enlarging, intrusive federal government.

Additionally, we must not repeat the failures of previous generations and trade liberty for security or trade true equality for social justice.  As Alexander Hamilton said on the floor of the Constitutional Convention in Philadelphia on June 26, 1787: “Inequality will exist as long as liberty exists. It unavoidably results from that very liberty itself.”  We must not allow individualism to give way to collectivism. Pro-Constitution legal scholar and author, R. Carter Pittman (1898-1972), wrote:  ”Equality reaches into the pockets of the frugal to put fat on lazy bones.  Fat fools don’t fight, except at the trough.  From the trough of equality there may be no road back.  The next gate may lead to slaughter pens or to the mines of Siberia.  We may have lost the will to be free.”

We must not allow any further encroachment of socialist policies or wealth redistribution because that is forced equality in contradiction to the laws of nature and economics and they are the same policies of the failed regimes of Europe.  Pittman wrote: “It is inequality that gives enlargement to intellect, energy, virtue, love and wealth. Equality of intellect stabilizes mediocrity. Equality of wealth (and social condition) makes every man poor. Equality of energy renders all men sluggards. Equality of virtue suspends all men without the gates of heaven. Equality of love would stultify every manly passion, destroy every family altar and mongrelize the races of men. Equality of altitude would make the whole world a dead sea. Mountains rise out of plains. Plains rise out of the sea………    Equality of freedom cannot exist without inequality in the rewards and earned fruits of that freedom.”

Finally, we must do what our parents and grandparents failed to do, and that is to teach our children, by words and by example if possible, what it means to be an American and what it means to live under the US Constitution.  We must teach them “authentic” US history, from first-hand documents, and not leave this important education to our failed public school systems. Our ‘greatest generation’ sadly gave birth to our worst generation.  If Thomas Jefferson had his way, every house would have two essential documents – the Bible and the Constitution.  Americans would have values and would intimately know where they stand with respect to government. They would be raised to be citizen-servants, meaning they would serve for a short term and then return to their homes, to their jobs, and to their communities. They would understand the notion of service and proper representation. They would understand the importance of our history and realize that the values and principles and traditions that once made our nation great and strong and unified are the same ones we need again more than ever.  Every one of those values and principles and traditions allowed this country to enlarge freedom and liberty for all its citizens.  In a rational world, our public schools would be teaching all this to our youth.  Robert Hutchins (1899-1977), one-time dean of Yale Law School, wrote: “The object of the educational system, taken as a whole, is not to produce hands for industry or to teach the young how to make a living. It is to produce responsible citizens.”

The government today is pitting one citizen against another.  It is putting the rights and concerns of some citizens over others.  In fact, it is putting the rights of the minority over the equally-important rights of the majority.  Often the rights of the majority are the rights that have traditionally defined what it means to be an “American.”  The government and courts like to claim that individuals’ freedoms can conflict, yet they both have been too liberal in defining what “fundamental” rights are… such as the right to kill an unborn baby, the right to marry a same-sex partner, the right to take from one person to support another who has no relation, the right of an atheist not to be “offended” in any way by a cross, a prayer, a word, a song, a lawn decoration, etc, and the right of a group to absolute civil liberties, including freedom from racial profiling, when that very group is responsible for 80-100% of violent crime.  The government has even gone as far as to statutorily protect some groups’ rights over another – ie, blacks and Hispanics (the 14th Amendment and Civil Rights laws; Affirmative action, which is still going strong; the government’s refusal to defend DOMA).  In this era of violent Islamic terrorism, our country has chosen to label homeland terrorism, such as the Ft. Hood shooting by militant Islamist (“Soldier of Allah”), as “workplace violence” rather than truthfully labeling it for what it was – militant and radical jihadist terrorism.  Instead of a Homeland Security Department which identifies this growing security threat and threat to our military, it has taken active and public steps to play down radical Muslim activity and instead to declare that conservative groups pose the current greatest threat to our national security. (Read the Homeland Security Report of April 2009 entitled “Rightwing Extremism”). Video adds for the “See Something, Say Something” law cleverly hint that white American males are the ones we need to keep our eyes on and to suspect as plotting violence. So much for traditional 1st Amendment rights of free speech.  In an era of great security threats, our country has chosen to target good, law-abiding conservative citizens who love their country, are disgruntled about a tyrant ruler trying to impose a government mandate on healthcare, who “cling to their guns and religion,” and who cherish their Constitutional rights.  Over the past century, we’ve watched what our government has done when it claimed that the freedom of two individuals or two groups conflicted.  Instead of protecting the rights clearly enumerated in the Bill of Rights, our government has put artificial rights above them and chipped away at our traditional rights and institutions. As between atheists who make up less than 1% of the population and Christians who make up over 80%, it is the atheist who gets his way.  As between a helpless living unborn baby who needs compassionate lawmakers to speak where it cannot or a mother who has the power to make reasoned choices, the government chooses the irresponsible mother.  As between an individual’s right to pursue a profession or degree based on merit and free from racial bias (14th amendment), the government has outright denied that individual’s right in favor of a racially-motivated alternative minority candidate.   We all understand the reasonable implications when two legitimate fundamental rights class.  We understand that at times, one man’s freedom must be limited to preserve another’s.   As Supreme Court Justice William Douglas once said: “My freedom to move my fist must be limited by the proximity of your chin.”

Today’s government is picking winners (many of whom are petty criminals or worse) and forcing losers out of good and decent Americans – most of whom AREplaying by the rules. It neither fears nor respects the individual citizen. We are a social security number, a statistic, a polling number, a “threat (as in Rightwing Extremism”), a bottomless pocket for the government to take whatever money it believes it needs……   We are not a constituency to be feared or to served honestly and fairly.  Notions of fundamental fairness have long gone out of the window.  There is nothing fair about the tax scheme.  There is nothing fair about income redistribution (especially when the Declaration of Independence proclaims property, of all kinds, to be an inalienable right).  There is nothing fair about the government’s forcible use of one person to serve the purposes of another, including taking the earnings of one to give to another (which essentially amounts to slavery). There is nothing fair about the social decay and destabilization because of the many entitlement programs (just to pander to a voting block). There is nothing fair about the government forcing a socialized healthcare program on a people who overwhelmingly are opposed to it.  Social justice and new social order are the new goals of our government.  All we need to know can be summed up by a quote often attributed to Thomas Jefferson: “When the government fears the people, there is liberty.  When the people fear the government, there is tyranny.”  [Note that the quote is now believed to be given by John Basil Barnhill in 1914].

Where is the US Constitution in all of this?

Our Founders’ vision of our American republic was one of a country grounded in virtue and religious faith, thankful for liberty, proud of its Constitution, and eternally vigil for an enlarging government that would become oppressive and non-oppressive to the people.  Our Founders envisioned a country of men rising to the opportunities and challenges that freedom brings, of a limited national government devoted to protecting that freedom, and of responsive local governments to ensure that States and communities keep their individual character.

Today, we barely recognize our country because it has changed so dramatically.  In my relatively short lifetime, I can already sense so keenly all the freedoms and opportunities that have been lost. America “feels” different to me.  The opportunities I had as a young adult won’t be available to my children. They’ll have concerns and issues to deal with that I never had. They won’t share the optimism that I enjoyed.

We have passively allowed a powerful centralized government over a decentralized federal government, we have neglected to vote for strong States’ rights leaders in our states, rendering the States mere government pawns, we have allowed corruption over ethics, we have chosen personal individualistic freedom over virtue, and we have failed to teach our children authentic US history and what it means to be an “American.”  But most of all, we have neglected the most important historical document the world has ever been known –  a document that oppressed and tortured people around the world would gladly die to protect.  It was ours to protect and preserve.  Let’s hope it’s not too late.

Today, we are in an ideological struggle right now over the proper role and scope of government.  We are not only witnessing a Constitutional crisis in this country, but a crisis based on a failure to appreciate what liberty means and stands for.  We saw the beginning of this struggle in 1964 with the Lyndon Johnson’s “New Society.”  Campaigning for Barry Goldwater in 1964 to replace the socialist Johnson, Ronald Reagan delivered these words:

The notion of ‘the full power of centralized government’ was the very thing the Founding Fathers sought to minimize. They knew that governments don’t control things. A government can’t control the economy without controlling people. And they know when a government sets out to do that, it must use force and coercion to achieve its purpose. They also knew that outside of its legitimate functions, government does nothing as well or as economically as the private sector of the economy.    Private property rights are so diluted that public interest is almost anything a few government planners decide it should be…. Now it doesn’t require expropriation or confiscation of private property or business to impose socialism on a people. What does it mean whether you hold the deed to the—or the title to your business or property if the government holds the power of life and death over that business or property?  And such machinery already exists. The government can find some charge to bring against any concern it chooses to prosecute.  Every businessman has his own tale of harassment. Our natural, unalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment. This is the issue.. Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves……… You and I have a rendezvous with destiny.  We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.

What do you believe is the proper role of government?  How strongly do you value liberty?  Do you even know how freedom is protected and what it is even worth anymore?

The Constitution is not a complicated document.  Along with the Declaration of Independence, it is our great guarantor of liberty.  It lists the responsibilities of government (only 17 of them, mostly having nothing to do with our everyday lives) and then lists those individual human rights and liberties that it must not legislate and burden.  Everything else is left to the individual and to the States.  The States, being closest to the individual, are the sovereigns that are most responsive to the people and therefore best able to protect their interests.  The Constitution was never supposed to encroach upon the supreme rights of the States in protecting the individual.  As James Madison explained: “Every word of the Constitution decides a question between power and liberty.”

Maybe you are one of those citizens who enjoyed the American dream at one time but don’t have the energy to fight for it for your children or grandchildren.  Maybe you are apathetic and have given into the system that has taken hold.  Well then, my friend, you have just acknowledged that your government has become oppressive.

If you love this country – if you love it for its freedom and its opportunity and NOT for what it gives you in material aid – then you know things can’t continue to go the way they are going.  Something has to change.  And it has to start with us.   It falls upon all of us to take action.  As Ronald Reagan once asked: “We have to ask ourselves if we do nothing, where does all of this end. Can anyone here say that if we can’t do it, someone down the road can do it, and if no one does it, what happens to the country? All of us know the economy would face an eventual collapse. I know it’s a hell of a challenge, but ask yourselves if not us, who, if not now, when?”

As one-time Yale Law school dean Robert Hutchins predicted, the death of the republic will not come from something like an assassination or an attack or even an election, but rather from apathy and indifference.

If you believe in large government, in a government that does more for you than you wish to do for yourself, and if you are willing to allow government to keep eroding and encroaching on the liberties that our country was founded on, then one day you will have to look a patriot and soldier in the eye and justify why you were so cavalier with the freedom that he so willingly gave his last full measure of devotion.


Limited Government,

Walter Williams, “Visions of Morality, Dec. 7, 2011, The Daily Reflector (Greenville, NC)

Thomas Kidd, Patrick Henry: First Among Patriots, 2011, Basic Books.

Cleon Skousen, The 5000-Year Leap, National Center for Constitutional Studies, 2009.  (originally published in 1981).

Leonard Carmichael, Absolutes, Relativism and the Scientific Psychology of Human Nature, 1961, Van Nostrand, pg. 9

A. Kenneth Hesselberg, “Hume, Natural Law and Justice,” Duquesne Review, Spring 1961, pp. 46-47.

Edwin W. Patterson, Jurisprudence: Men and Ideas of the Law, 1953, Foundation Press (Brooklyn, NY), pg. 333.

Diane Rufino, Secession: Does a State Have the Right to Secede?,  August 2011,

R. Carter Pittman, “Which Shall It Be? Liberty or Equality, Americanism or Marxism,” Address delivered at the Annual Convention of the Alabama Bar Association, Alabama, July 16, 1954.   Referenced at:   and

Our Faithless President

  by Diane Rufino, Nov. 25, 2011

President Obama offered a few remarks for Thanksgiving, noting the many ways that Americans have come together.  He highlighted the community mindset of those who volunteer in soup kitchens and praised our men and women in military uniform.  In fact, his weekly address was titled: “On Thanksgiving, Grateful for the Men and Women Who Defend Our Country.”  He also commented that he and his family are “reflecting on how truly lucky we are.”  Yes, the first family IS lucky, very lucky indeed.  But not once did our President make any mention of God, the very reason our nation was founded in the first place.

Thanksgiving is a holiday traditionally steeped in rightful thanks and praise to God.

Yet he didn’t offer thanks to those bravest of settlers who risked it all, including harsh stormy seas, unknown new lands and hostile inhabitants, all in order to establish a colony where they could worship and honor God as they believed they had the natural right to.  At many times in our early years, disease and famine were so severe that every single family lost a loved one.  How many of us would contemplate making a change in our lifestyles knowing that it could possibly cost us a child or a spouse?  And yet our founding settlers took that risk – for the glory of God…  in order that America could be that “shining city on a hill” –  a nation so blessed by God because of its stalwart citizens that it would be a beacon and an example to the world.  We celebrate the blessings we inherited from these early settlers on Thanksgiving.

How naive Obama is.  How reckless he is with his selective attention to our nation’s history.

So with respect to this Thanksgiving Day 2011, we’ll think back and remember who the real turkey was.

SECESSION: Does a State Have the Right to Secede from the Union?

 by Diane Rufino, Sept. 6, 2011

Last month I taught classes on the Constitution, Our Founding Fathers, Our Founding Principles, The Federal Court System, The Supreme Court, and Judicial Activism.  I was struck by how many people want to learn such topics but just don’t know where to go to be educated or how to trust that they will be taught the right stuff.  But one question that came up almost every class period and by every group was this: “Do the states have the right to secede.”   Well, there were several people at the program who were instructors, and three of us being attorneys (me being the least experienced and especially with a background in patents).  Each instructor who was asked the question gave a different answer.  I didn’t know, so that was my answer, although I explained what John Locke would have said and what the answer would be if you look at the Constitution as a Social Contract.  I also know what our Founders would have said, as clearly written in the Declaration.

So, seeing that people were generally interested in that question, I thought I would use that topic as the one I’d review here.  Besides, the topic of secession is one that necessarily talks about States’ rights and State sovereignty and those issues are very important right now, especially seeing that our government has become a runaway train.

We declared our separation from Great Britain in 1776 with the Declaration of Independence, which was an act of secession. We dissolved our bonds of government with the King and Parliament.  “We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

But nowadays, when we think of secession, we think back to the Confederacy and the Civil War.  We think of the decision to sever relations with fellow states. Currently, some think of such a decision not out of any animosity to fellow states, as it was prior to the Civil War, but as the only way to sever the relationship and dependency on the federal government.

The Southern states seceded in 1860-61 essentially because of slavery.  If it weren’t for slavery, the bigger issue of States’ rights wouldn’t have asserted.  Slavery was indeed an immoral and unjust institution.  It is sad to think that people can treat fellow human beings as nothing more than property.  But it was the bigger issue of State’s rights that we must consider when we examine the Southern States’ position with respect to secession and then the response by President Lincoln.

Back in 1860, the states still remembered why they fought for their independence from Britain and why they joined together in a Union  (as Ben Franklin advised, for mutual benefit – “Join or Die”).  They joined for security and on the basis that each state would be on equal footing.  They would enjoy the protections and benefits of the Constitution – EQUALLY.  The issue of slavery aside, the Southern States dissolved their association with the Northern States because the association had become hostile and had become destructive of the very reasons they joined together in the first place. They seceded for the same right of self-determination and self-government that our earlier Americans asserted for our independence from Great Britain.

In Lincoln’s mind, he was preserving the Union, but the reality is that he declared war – a bloody, costly war – on a people who peacefully, legally, and perhaps rightfully severed relations with a government that had become hostile to them and their interests, and no longer served them equally or fairly.

I am a Northerner.  And I don’t apologize for reaching that conclusion about Lincoln’s decision to invade the South.  Growing up in the North, we were taught that Abraham Lincoln was the greatest President we ever had.  He saved the Union and freed the slaves. We were taught that the South was wrong and brought the Civil War on themselves.  We were taught that Lincoln was great because of his determination to preserve the Union at all costs.  I did some research in preparing for this review, and I’m glad I did.  I certainly learned a lot.  I learned that much of what I was taught in school was wrong and really just the government’s position on the subject.  The adoption of Lincoln’s stance on saving the Union and abolishing slavery is clearly the position the government wishes to emphasize with our children.  I wish schools could be more intellectually honest and allow the full discussion on the issues involved in secession and the Civil War.  I think it’s a shame that children indoctrinated in the public school system are so ill-equipped to appreciate the values and principles on which our country and government are based and for the most part, end up going through their entire life remembering the limited “talking points” on history and social studies that they learn in school.

In preparing to write this review, I shared what I learned with my husband, who is also a Northerner.  Even after hours of discussion and debate, he still believes that Lincoln was justified in invading the South.  He believes that slavery needed to be ended and if the South wasn’t willing to do it, then the North had every reason to (under the Declaration of Independence). He respects Lincoln for having the courage to do that.  In his mind, the ends justified the means.

I guess you can say that we have a House divided at home now.

Personally, when referring to matters of liberty and the Constitution, I find it offensive to hear people use terms such as “the ends justified the means.”  It simply means they don’t value the rule of law as laid down by our Founders.  FDR had this mentality. Lincoln had this mentality.  Even Teddy Roosevelt had this mentality.  And most of all, Barack Obama embraces this mentality.  Those who wrote and adopted legislation to “punish” the states had this mentality.  Those who now seek to target white Americans – “Rightwing Extremists” (under the Patriot Act and “See Something, Say Something” Act)  – as those who pose the greatest danger to the country, rather than radical Islamists have this mentality.  Those who praise Bill Ayers and the Weather Underground for killing innocent public servants and family men but condemn Timothy McVeigh as the worst domestic terrorist of all time have this mentality.  Those who blame the rich for all the woes of the country and demand that they pay the bulk of taxes as their “patriotic duty” have this mentality.  And even those, like NYC Mayor Bloomberg, who seek to deny clergy at the 9/11 ceremony because he doesn’t believe a religious presence should be involved (separation of church and state?) have this mentality.  Each instance perverts a fundamental principle of law upon which our country was founded.  As Sarah Palin once asked: “How’s that working out for you?”

Martin Niemoller, a German Pastor who fell out of favor with Adolf Hitler and was imprisoned at the Dachau concentration camp for several years, wrote:

“First they came for the Socialists, and I did not speak out — Because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out –  Because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out –  Because I was not a Jew.

Then they came for me — and there was no one left to speak for me.”

As my priest once said: “You can’t cherry pick what you want to believe in or not. You have to stand up for the whole package.”  (He was talking about those who claim to be Christians but don’t want to acknowledge that abortion and the destruction of a fetus is against God’s law).  Liberty is a “whole package.”  There are many elements to it and to pervert one aspect is to diminish its over-all worth.

One day you’ll wish you took the time to stand up for liberty, even in if it didn’t concern you personally at the time.

In this review, I’ll talk about the various theories that come into play when we talk about secession, what our Founders thought about it, what Abraham Lincoln himself had to say, and finally, what the Supreme Court had to say.  I think that will give us a lot to think about.  Then we can move on to talk about current state sovereignty issues, such as healthcare, immigration, the Repeal Amendment, and current movements to repeal the 17th Amendment.  Although I hope readers will appreciate the critical review of Lincoln’s decision to invade the Southern Confederacy which I’ve attempted, perhaps moreso, I hope the review of secession in general will help them better focus on the issues involved in these bitterly-debated current topics, and even in many others (such as Agenda-21 and the UN Small Arms Treaty).   I hope readers will have a better appreciation for these issues, including those of:

(i)  States’ Rights and State Sovereignty;  and the need for a robust federalist system to curb the powers of the federal government;

(2)  The right of people to limited government and limited intrusion into their lives and upon their liberties, including their right to property,  AND

(3)  The right of people to expect their states to stick up for their liberties and their property rights.

I mention property rights specifically because our Founders have warned us that If we want to surrender our human liberties to our government, then letting it control our property is the surest way to do that.  There is a reason that Jefferson included the 3 most fundamental liberties as co-equals:  “Life, Liberty, and Pursuit of Happiness” (ie, “Property”) in the charter of our free nation.  A person can’t enjoy Life without the rights to enjoy his property and other liberties.  A person can’t enjoy his property without his other liberty rights.  And a person can’t enjoy his Liberty if he can’t enjoy his property and the right to live his life freely (without interfering with another’s rights).  Government doesn’t need to take physical title to a person’s property without rendering it useless or meaningless.  Ronald Reagan spoke eloquently on this in his 1964 speech “A Time for Choosing.

QUESTIONDo you think a State has the right to secede from the Union ? 

I ask this just to get you thinking of your personal position on the topic.  While you are at it, reflect upon the reasons for or against it, as you believe them to be.

QUESTION:   Why do I believe a review on the topic of secession is important ?

–>   To reflect upon what we, as a people and as a state, hold most near and dear, and what we are willing to tolerate from a federal government.  We need to decide when enough is enough.  We have to decide where to draw the line in the sand as to how much government intrusion in our lives is too much.

–>   To reflect how far we’ve lost touch with the appreciation of liberty that our founders and forefathers had.  Remember how the colonists wouldn’t even tolerate a very minor tax on tea.  As James Madison said: “The people of the United States owe their independence and their very liberty to the wisdom of protesting against a minute tax on tea and recognizing the underlying oppression in that tax.”

–>   To remind ourselves of the importance of the 10th Amendment.   As South Carolina wrote in its Ordinance of Secession of Dec. 20, 1860: “By this (US) Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which implied their continued existence as sovereign States. But to remove all doubt, the 10th Amendment was added. Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant.  This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.”

***   Remember this term  “compact.”  South Carolina specifically referred to the Union as a “compact between the states.”  Remember this term “compact.”

Can we put off this discussion?  I don’t think so.  I think if people can simply grasp the government’s position on the Commerce Clause and healthcare (see the discussion of Wickard v. Filburn, later) alone and its intention to control and regulate people and their property, then they just might begin to understand the urgency and the Constitutional crisis we are in with respect to our government.   And then to realize, as we here in North Carolina have had to do, that our own State has no intention of sticking up for its people – for individual liberty. The overwhelming number of people in North Carolina, across party lines, are skeptical of the of the healthcare bill (the Patient Protection and Affordable Care Act , or PPACA, or “Obamacare”) and don’t want the federal government telling them to buy its healthcare plan.  Both houses of the NC Assembly passed a bill, very similar to Virginia’s “Healthcare Freedom” Act, which would exempt North Carolinians from the federal healthcare bill, but NC Governor Beverly Perdue vetoed it. There were enough votes to over-ride the veto, but taking her cue from President Obama, Perdue called Democratic house members to the Governor’s mansion the evening before the over-ride vote, and then miraculously, certain of those house members who had gone on record as saying that the federal healthcare bill is a “bad bill” and citizens needed to be protected from it and had in fact voted for the NC “Protect Healthcare” Bill (H.B. 2)  switched their votes the following afternoon.  If North Carolina had valued her sovereignty and would have been willing to stick up for its 10th Amendment powers, then Governor Perdue would have signed that bill with pleasure and in fact, would have been proud to do so.

QUESTION:   What if we don’t stand up for Sovereignty and States’ Rights NOW ??

–>   There may come a time, soon, when people begin to seriously talk about secession… as a solution.

–>   We don’t want to get to that point.  Secession is a desperate act. A last resort.  It can potentially lead us down the road to another bloody revolution.

–>   Before we even get to that point, however, we must know that conservative leaders will be targeted by the government as “Rightwing Extremists”  (See report issued by Janet Napolitano and Homeland Security on April 7, 2009 entitled: “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment”)  AND  our second amendment right to bear arms will likely be taken away because of the threat of domestic violence and an “imminent threat to the security of the nation.”  The President will no doubt cite Article IV, Section 4 for authority to do that.

Article IV, Clause 4 reads: ” The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

How many times have we asserted our individual liberties, with respect to government ?   

–>  Only once, in 1787 (and then in the state ratifying conventions).   The English have done it many times (beginning with the Magna Carta in 1215 to the English Bill of Rights, 1689).  Each time they were granted greater liberties and government was limited.  Maybe Americans should give that some thought.

How many times have the States asserted its liberties with respect to a central or federal government?

–>  Twice.   The American Revolution  & the Civil War.  The colonies were established as sovereign entities. They soon adopted constitutions and established themselves as independent, sovereign states (almost as 13 independent countries in the New World). The Southern States were stripped of sovereign power after the Civil War, and in punishing them, all of the States eventually lost the one thing that was valued most of all in our Founding – their independence. The trend since has been to strip them further of their rights and power.  Rather than the autonomous States who carried such weight and power in the design and planning of our nation, they are now little more than a uniform group of states, subservient to the federal (now a “national”?) government because of the massive growth and concentration of power and beholden to it for funding.  In short, the states have grown weaker… infinitely weaker.  And this erodes a very important foundation for our individual liberties – “federalism.”

I remember one discussion I was having regarding the 14th Amendment and how it has been used to neuter the States in the 20th century. The 14th Amendment, a Civil Rights amendment, was intended to put the full force of federal law on the Southern States to give the freed slaves the full rights and privileges of citizenship. Today, it is used to strip the states of the power of regulating in many areas it had traditionally been allowed to regulate (especially under its Police Powers – the power to regulate for the health, safety, welfare, and morality of its people) – including in the area of education (prayer and morality out of school), religion (separation of church and state), association, abortion, sodomy, and criminal rights.  As the gentleman explained: “The States can’t be trusted.”  The gentleman I was having the discussion with feels the 14th Amendment was and continues to be an important amendment. (I believe it has outlived its purpose).  As the gentleman explained: “The States can’t be trusted.”  My response was: “The federal government can’t be trusted but no one is trying to limit its power with an amendment !!”

–>  The Civil War, which Lincoln touted as a “new birth of freedom” was actually the beginning of our demise.  We lost much of our liberty.  For with the Civil War, this country destroyed the very foundation upon which our country could most effectively curb tyranny – the right of states to remain sovereign, free, strong, and independent states… to retain those powers, so numerous and indefinite, “which extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the People, and the internal order, improvement, and prosperity of the State.” (James Madison, Federalist No. 45)  This was our Tenth Amendment.

In the aftermath of the Civil War, the era of big, centralized government was ushered in.

Who makes those decisions now as to which areas a State can regulate?  

–>  Those decisions are usually made (often with strong-arm tactics) by a Constitutionally-abusive president such as FDR or Obama – those blinded by the need for socialist policies.  Or they could be made by the nine members of the Supreme Court – 4 or 5 of whom have no allegiance to the words and spirit of the Constitution.   (See Wickard v. Filburn, which will be discussed later)

I think it’s important for a people every hundred years or so to put themselves in the position that the feudal barons were in back in 1215 when they forced King John to sign the Magna Carta and especially to put themselves in the position that our founding colonies were in when they were standing up for their liberties and trying to establish that perfect formula to protect those liberties with respect to government that historically would always tend to become tyrannical and destructive of the ends for which it was established. The gradual encroachment on human liberties over the years has been staggering and we’ve sat back and allowed it to happen. How many colonists do you think would have let that happen? The British asserted their rights in 1215, then in 1628 (Petition of Right), then in 1679 (Habeas Corpus Act), and then in 1689 (English Bill of Rights).  Each time they exercised their voice, the King or Parliament drafted a document limiting the powers of government.  Each of the documents listed above are a recognition of individual liberty and a promise to limit government with respect to the rights held by the people.  We have the Constitution and the Bill of Rights, and to this day, because of the progressive and socialist nature of government and the progressive nature of the federal courts, we really have no idea what our actual rights are with respect to government. This should never be tolerated.

Let us remember the days when the colonists wouldn’t even tolerate a very minor tax on tea.  As James Madison said: “The people of the United States owe their independence and their very liberty to the wisdom of protesting against a minute tax on tea and recognizing the underlying oppression in that tax.”

And those days, the States were responsive to their people. When the people rallied and protested over the Stamp Act and the small tax on tea, as violating their natural rights, the States, one by one, in Convention, called for a declaration of independence from Britain.  Since when did the States become the very puppets of a government that was supposed to “serve” them?  Since when did the States become willing puppets of a government that disregards their very sovereignty?  It’s no wonder that the bully in DC continues to be one.

Before examining the question of whether a state has the right to secede from the Union, consider these quotes:

“The principle, on which the war was waged by the North, was simply this: That men may rightfully be compelled to submit to, and support, a government that they do not want, and that resistance, on their part, makes them traitors and criminals.  No principle, that is possible to be named, can be more self-evidently false than this or more self-evidently fatal to all political freedom.  Yet it triumphed in the field, and is now assumed to be established.  If it really be established, the number of slaves, instead of having been diminished by the war, has been greatly increased…   For a man, thus subjected to a government that he does not want, is a slave.  And there is no difference, in principle – but only in degree – between political and chattel slavery.  The former, no less than the latter, denies a man’s ownership of himself and the products of his labor; and asserts that other men may own him, and dispose of him and his property, for their uses, and at their pleasure.”  – Lysander Spooner (Nineteenth-Century lawyer, abolitionist, entrepreneur)

“The Union was formed by the voluntary agreement of the States, and in uniting together, they have not forfeited their Nationality, nor have they been reduced to the condition of one and the same people.  If one of the States chose to withdraw its name from the contract, it would be difficult to disprove its right of doing so…”     -–  Alex de Tocqueville, Democracy In America

” Could our Founding Fathers have ever forbade the right of secession, or ever dreamed of secession as illegitimate, when it was precisely their own righteous secession, the escape from British abuse which literally forged the steely bonds of their cause – those which actually bound our Founding Patriots together when they mutually pledged to each other ‘our Lives, our Fortunes and our sacred Honor’?”    — Thomas Paine, June 25, 2009, in his article “The Truth About Session”

“If the Declaration of Independence justifies the secession from the British empire of 3,000,000 of colonists in 1776, we do not see why it would not justify the secession of 5,000,000 of Southerners from the Federal Union in 1861.”    –-  New York Tribune, December 17, 1860

“The American people, North and South, went into the [Civil] War as citizens of their respective states, they came out as subjects … What they lost they have never gotten back.”     -–  H.L. Mencken

“If there be a principle that ought not to be questioned within the United States, it is that every man has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of American martyrs, but is the only lawful tenure by which the United States hold their existence as a nation.”      — James Madison

“To deny this right [of secession] would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they are governed.”     —  William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century, A View of the Constitution of the United States (1825)

QUESTIONWhat does the word “Secession” mean ?

–>  A separation from a community of a part of that community.

–>  One party’s voluntary withdrawal, or disassociation, from another party or from a Union of parties

–>  Secession necessitates no attack, no usurpation, no threats, no takeover, no violence.  It is a peaceful act.  Violence only enters the picture when there is a tyrant ruler.  Coercion and armed force are the favorite instruments of such rulers to halt a secession from their corrupt empire.

QUESTIONWhat did our Founders say about secession?  What about our founding principles?

–>  Our Founders understood that certain fundamental rights are inherent in man because of his relationship with the Creator.  They reasoned: “How can we give consent to a government to make rules for us if we don’t have the original power to make rules for ourselves?“

–>  This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke.

–>  It was the sovereign people (“We the People”) for who the Constitution was created.

–>  If a sovereign people can create a government, then they can also dissolve it.

As our Founders understood, certain fundamental rights are inherent in man because of his relationship with the Creator.  They reasoned: ‘How can we give consent to a government to make rules for us if we don’t have the original power to make rules for ourselves?“  This is known as the Individual Sovereignty doctrine, advanced by the great philosopher on government, John Locke. It was the sovereign people (“We the People”) for who the Constitution was created.

In order to understand the premise for John Locke’s theory on government, ask this question:  Which comes first –  individuals or governments?   We know the answer. Individuals, with certain fundamental sovereign rights, form into communities. They delegate their power over their rights and property to a local government to protect them. As John Locke explained: “Individuals have sovereign rights which no government can take away.  (Government can only exercise power on behalf of the people).  As such, government is morally obliged to serve people, namely by protecting life, liberty, and property.”

John Locke was one of the first great thinkers of the Enlightenment Era (or age of Reason).  He believed in the sovereignty of the individual – the inherent rights of the individual to self-protection.  Locke understood that the individual has natural rights to life, liberty and property, and therefore has the right to protect them.  It is from this basic premise that he explored the role of government.  We can read his views in his extensive essays entitled The Two Treatises of Government, published in 1688 and 1689.  In the first treatise, Locke refutes the belief in the divine right of Kings.  It is the second treatise, we see the essentials of Locke’s political theory.  In essence, he builds on Cicero’s “Natural Law” theory where man derives his existence and therefore his natural rights from God.  Locke takes the theory one step further and applies it to the intended role of government. So Locke’s fundamental assertion, as was Cicero’s, is that the state of  nature has human beings enjoying most of their natural rights without the state. That is, the rights are not granted by the state. The fact that property could be freely exchanged, sold, or accumulated in that natural condition led Locke to argue that governments ought not interfere with most aspects of the economy and society. Moreover, no people living in a natural state of freedom would consent to have all their liberty taken away.  Liberty is not the government’s to take away. Therefore, any government requires the consent of the people to “protect the rights of life, liberty, and property” that the people themselves have the natural authority to do. (The right of self-protection).  This, therefore, makes government ‘conditional.’  It also dictates that the role of the state ought to be limited to protecting life, liberty, and property from those few predatory members of the human race whom Locke referred to as the “quarrelsome and the contentious.” According to Locke, everyone is entitled to live once they are created (Life), everyone is entitled to do anything they want to so long as it doesn’t conflict with the first right (Liberty), and everyone is entitled to own all they create or gain through gift or trade so long as it doesn’t conflict with the first two rights (Property).  Since the role of government is limited, its power should also be limited. Locke proposed that government be limited through a separation of powers scheme, where each branch checks the other.

It is easy to see how our Founder’s were influenced by John Locke when designing our government and drafting our founding documents.

QUESTIONWhat is the purpose of a constitution?

–>  Locke wrote that the decision by a group of people to delegate authority to a government creates a constitution, a written agreement that sets limitations on government power and represents the consent of the people.  Laws established for the community naturally flow from this initial agreement and therefore a constitution is superior to ordinary laws created by any legislature. Locke’s idea of government is one of a limited constitutional regime.

Locke saw constitutions as “social contracts” or “social compacts.”

QUESTIONWhat is a “social contract”  (or “social compact”)?

–>  A social contract is an agreement intended to explain the appropriate relationship between individuals and their governments.  People form an implicit social contract, ceding their natural rights to an authority to protect them from abuse.  According to the dictionary, a social contract (aka, social compact) is a voluntary agreement among individuals by which, according to any of various theories, such as those put forth by Hobbes, Locke, or Rousseau, organized society is brought into being and invested with the right to secure mutual protection and welfare or to regulate the relations among its members.

Locke saw constitutions as social contracts or social compacts.  He explained that people escape their primitive state by forming into communities and thus entering a social contract under which the state provides protective services to its citizens. Locke regarded this type of contract as revocable.  A government depends on the consent of those who are governed, which may be withdrawn at any time, thus dissolving the agreement and thereby invalidating the government.  [In the case of a federation of states, for example, one state would no longer “give consent” and therefore dissociate itself from the contract, thereby dissolving its bond with the other states].

In his Republic, Plato introduced social contract theory. In a scenario involving Socrates, Socrates refused to escape from jail to avoid being put to death. He argued that since he had willingly remained in Athens all of his life despite opportunities to go elsewhere, he had accepted the social contract  (thus he agreed to abide by the local laws, including submitting to the justice process). The idea of the social contract is one of the foundations of the American political system. This is the belief that the state only exists to serve the will of the people, and they are the source of all political power enjoyed by the state. They can choose to give or withhold this power. The origin of the term social contract can be found in the writings of Plato. However, English philosopher Thomas Hobbes expanded on the idea when he wrote Leviathan in response to the English Civil War. In this book he wrote that in the earliest days there was no government. Instead, those who were the strongest could take control and use their power at any time over others. Hobbes’ theory was that the people mutually agreed to create a state, only giving it enough power to provide protection of their well-being. However, in Hobbes’ theory, once the power was given to the state, the people then relinquished any right to that power. In effect, that would be the price of the protection they sought. John Locke, on the other hand, saw the relationship as still favoring the individual and the rights inherently bestowed on him.  He believed that revolution was not just a right but an obligation if the state abused its given power against the individual.

Thomas Paine, in his Rights of Man, wrote:“The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a contract with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.”

This all makes sense.  Local governments and social contracts/compacts make sense.  A local government can provide services easier than individuals who must go to work and do other things. What is your fundamental liberty worth when you can’t travel because you have to stay around to guard and protect your property?  So, some government is necessary for maximum liberty.  But the individual is careful to make sure that only certain services are delegated. As Madison explained in The Federalist No. 45, power was always meant to remain closest to the people. He wrote: ” The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the state governments are numerous and indefinite. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and property of the people, and the internal order, improvement, and prosperity of the state.”

But a federal or central government was something different.  It is a government that isn’t close to the people.  And our Founders understood that.  For that reason, the Constitution was written for We the People to outline exactly what powers We are willing to delegate away – “in order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity.”  And the Federalist Papers explain the scope of those powers.  They are very limited and specifically listed. The Constitution was ratified by the States in reliance on such an understanding.

QUESTION: Who are the parties to the social contract / compact that is our US Constitution?

–>  The states, acting in the interests of “We the People.”  Citizens selected their delegates who then debated the decision to ratify or not ratify the Constitution and join with fellow states to delegate certain of their powers to a federal government.  The Federal government was – is – NOT a party to the compact.  In fact, it wasn’t even actually created at the time many of the states signed of the Constitution. The government, therefore, has no enforcement power over the compact.  Only the parties – the states – do.

QUESTIONHow can the social contract / compact be dissolved?

–>  In every compact or contract between two or more parties, there is mutual obligation. The failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other. This, in fact, was the position of the state of South Carolina in its Declaration of Secession. It went one step further and said that where no arbiter is provided, each party is left to his own judgment to determine the fact of failure on a contracting party, with all its consequences.

–>  There are those who oppose this view and say that in order to break a social contract/compact, all parties must agree.

–>  Note that Secessionists analogized the Constitution to a treaty, not a contract – on the ground that each state was more like a sovereign nation than a human being. And under treaty law, unilateral rescission is permissible.

–>  As we’ll see in Texas v. White, the only Supreme Court case to address the issue of secession, the court included the federal government as a party to the social compact and also supported the view that a state could not be secede unless the federal government and the other states agreed to it.

John C. Calhoun, representative from South Carolina and Vice President under John Quincy Adam said: “The error is in the assumption that the General Government is a party to the constitutional compact. The States formed the compact, acting as sovereign and independent communities.”  Calhoun, for one, was a strong proponent of slavery and pushed for secession on that issue up until his death in 1850.  For years, he urged the North to  “stop agitating the slavery question.”  He predicted the Civil War.  On the floor of the Senate in February 1837, he asserted that slavery was more a “positive good” than it was a “necessary evil.”

Calhoun was also a strong believer in states’ rights and nullification (states could declare null and void federal laws which they held to be unconstitutional), a doctrine championed by Thomas Jefferson and advocated by the Anti-Federalists. Calhoun wrote an essay in 1828 entitled “South Carolina Exposition and Protest,” in which he argued that a state could veto any law it considered unconstitutional.

In 1850, he published a book called “Disquisition on Government,” in which he argued that a written constitution would never be sufficient to contain “the plundering proclivities of a central government.”  He argued that some mechanism is necessary for a consensus among the citizens of the states to limit the actions of Congress when they exceed constitutional boundaries. Consequently, Calhoun proposed giving citizens of the states veto power over federal laws that they believed were unconstitutional.  He called this consensus of citizens the “concurrent majority.”  This veto power would be supported by Jefferson’s nullification doctrine.  To Calhoun (and Jefferson), states’ rights meant that the citizens of the states were sovereign over the federal (he called it a “central”) government which they had created as their agent.  He also argued that since States are sovereign over the government and possess the right of self-determination and self-preservation, they inherently have the right of secession.

[Note:  Between 1937 and 1995, not a single federal law was declared unconstitutional by the Supreme Court. Not one piece of legislation was seen as exceeding the scope of Congress’s commerce power.  So much for the argument made in Marbury v. Madison (1804) that the federal courts have the power of  “judicial review” to hold the branches of Congress and the states to their constitutional limits (in order to, of course, to protect the delicate balance of power and to safeguard liberty). Instead, the courts have allowed, even endorsed, the federal government to expand beyond its enumerated responsibilities. The progressive Court of the 20th century has gradually allowed the government to encroach on individual liberty and by expanding and re-interpreting the Constitution, has denied the American people the ability to limit their government.]

Calhoun believed the doctrine of nullification could lead to secession and in fact that very scenario almost played out in 1832.

In 1832, there was a major confrontation between South Carolina and the government over state interests and sovereignty.  It is referred to as the “Nullification Crisis.”  South Carolina believed that certain federal tariffs were unconstitutional and it passed an ordinance that nullified” them. The tariffs at issue favored northern manufacturing interests over southern agricultural concerns. The South Carolina legislature declared them unconstitutional and passed an ordinance nullifying them.  (Such tariffs you might recall, were cited as one of the reasons for the secession of several of the southern states). In response to the South Carolina’s nullification measure, Congress passed the Force Bill, which empowered the President to use military power to force states to obey all federal laws. President Andrew Jackson then sent US Navy warships to Charleston harbor. South Carolina turned around and nullified the Force Bill. Tensions cooled after both sides agreed to the Compromise Tariff of 1833, proposed by Senator Henry Clay to change the tariff law in a manner which satisfied Calhoun, who by then was in the Senate.

We have looked at the reasons individuals establish governments, we have looked at local government vs. federal governments, we have studied the concept of “social contracts,” we have reviewed our founding principles and reflected about what our Founders had to say about secession and the right to dissolve bonds with government.  But just in case there are those who are still unsure as to whether a state has the right to secede from the Union, we can look at legal authority.

QUESTIONDoes a State have the legal authority  to secede from the Union?

–>   Article VII sets out the provision for original ratification, and Article IV empowers Congress to admit new States.  But there is no provision of the Constitution that authorizes a state to leave the Union or bars it from doing so. The Constitution does not say anything about states leaving.

–>  There is no specific power granted to the federal government to prevent or reverse secession and the power to secede is not specifically denied to the states.  Therefore, therefore that power is retained by the states, as guaranteed by the 10th Amendment.

–>  The Declaration of Independence is itself a document justifying secession.

–>  Texas v. White (1869).  The Supreme Court said “Yes,” but not unilaterally. (However, the decision has been put into question by the actions of President Grant and the government in setting conditions for the southern states to be “re-admitted” to the Union).

QUESTIONWhich was the first state to secede from the Union?

–>  South Carolina.  It adopted its Ordinance of Secession on Dec. 24, 1860.

South Carolina’s Declaration of Secession is noteworthy among the declarations of the seceding states for the following reasons:

1).  It acknowledges the state’s earlier intention (in 1852) to secede from the Union:  “The people of the State of South Carolina, in Convention assembled, on the 26th day of April, 1852, declared that the frequent violations of the Constitution of the United States, by the Federal Government, and its encroachments upon the reserved rights of the States, fully justified this State in then withdrawing from the Federal Union; but in deference to the opinions and wishes of the other slaveholding States, she forbore at that time to exercise this right.  Since that time, these encroachments have continued to increase, and further forbearance ceases to be a virtue.”

2).  It is structured very similarly to the Declaration of Independence written by Thomas Jefferson.  “To the remaining United States of America and to the nations of the world, South Carolina declares the immediate causes which have led to this act (secession).”  (Also see the language above)

3).  It explains the great principles asserted by the Colonies (States), as reflected clearly in the Declaration of Independence:  (a)  the right of a State to goverm itself; and (b) the right of a people to abolish a Government when it become destructive of the ends for which it was instituted.  The fact is that each state was recognized by the mother country in the Treaty of Paris (1793) as a FREE, SOVEREIGN AND INDEPENDENT STATE.

4).  It gives a very good overview of the history of the colonies:

“In pursuance of their Declaration of Independence, each of the thirteen States proceeded to exercise its separate sovereignty; adopted for itself a Constitution, and appointed officers for the administration of government in all its departments – Legislative, Executive and Judicial. For purposes of defense, they united their arms and their counsels; and, in 1778, they entered into a League known as the Articles of Confederation, whereby they agreed to entrust the administration of their external relations to a common agent, known as the Congress of the United States, expressly declaring, in the first Article “that each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not, by this Confederation, expressly delegated to the United States in Congress assembled….   Under this Confederation, the war of the Revolution was carried on, and on September 3, 1783, the contest ended, and a Treaty was signed by Great Britain in which she acknowledged the independence of the Colonies.

In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States. The parties to whom this Constitution was submitted, were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.  By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States, respectively, or to the people. On the 23d May, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.”

5).  It reinforces that the government is subject to the two great principles asserted in the Declaration of Independence (see earlier) –    ”We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence….”

6).  It explains the legal nature of the Constitution – as a compact (contract; an agreement; a social contract) – and acknowledges the parties to such compact (the states).  It also explains that as such, the Constitution is subject to the law of contracts:

“Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights…..   We hold that the mode of its formation subjects it to the law of compact.  We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

We assert that fourteen of the States have deliberately refused, for years past, to fulfill their constitutional obligations, and we refer to their own Statutes for the proof.”

7).  Just as Jefferson submitted “facts to a candid world” of the history of repeated injuries and usurpations by King George of England, all having in direct object the establishment of an absolute Tyranny over the States, South Carolina listed proof that the Northern states deliberately failed to live up to their Constitutional obligations and therefore the compact is null and void:

(i)  First, those states intentionally interfered with or ignored the Fugitive Slave Clause of the Constitution (Article IV, Sect. 2) –  Any person held in service or slave in one state must be delivered back to that owner.

This clause “was so material to the compact, that without it that compact would not have been made.  The greater number of the contracting parties held slaves, and they had previously evinced their estimate of the value of such a stipulation by making it a condition in the Ordinance for the government of the territory ceded by Virginia , which now composes the States north of the Ohio River….

(ii)  The General Government, as the common agent, passed laws to carry into effect these stipulations of the States. For many years these laws were executed. But an increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution…. Thus the constituted compact has been deliberately broken and disregarded by the non-slaveholding States, and the consequence follows that South Carolina is released from her obligation.

(iii)  The ends for which the Constitution was framed are declared by itself to be ‘to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity.’  These ends it endeavored to accomplish by a Federal Government, in which each State was recognized as an equal, and had separate control over its own institutions. The right of property in slaves was recognized by giving to free persons distinct political rights, by giving them the right to represent, and burdening them with direct taxes for three-fifths of their slaves; by authorizing the importation of slaves for twenty years; and by stipulating for the rendition of fugitives from labor.

We affirm that these ends for which this Government was instituted have been defeated, and the Government itself has been made destructive of them by the action of the non-slaveholding States. Those States have assume the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution…”

(iv)  The Northern States have showed added hostility to the Southern states “by elevating to citizenship, persons who, by the supreme law of the land (Dred v. Scott), are incapable of becoming citizens; and their votes have been used to inaugurate a new policy, hostile to the South, and destructive of its beliefs and safety.”

(v)  “On March 4, 1861, Abraham Lincoln will take possession of the Government.  He has announced that the South shall be excluded from the common territory, that the judicial tribunals shall be made sectional, and that a war must be waged against slavery until it shall cease throughout the United States…. The guaranties of the Constitution will then no longer exist; the equal rights of the States will be lost. The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy.”

Other states, such as Georgia and Texas, offer many more reasons for the decision to secede.

Secession  –

Americans seceded twice in our relatively short history as a nation.  We seceded from the British Empire over its taxation of the colonies without representation and a denial of other fundamental human liberties.  Thomas Jefferson set those reasons out very clearly for “a candid world” to see in the Declaration of Independence.  Some of those reasons were:

  • He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
  • He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures.
  • He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
  • He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers.
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.
  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.
  • He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.
  • He has affected to render the Military independent of and superior to the Civil power.
  • He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:
  • For Quartering large bodies of armed troops among us:
  • For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
  • For cutting off our Trade with all parts of the world:
  • For imposing Taxes on us without our Consent:
  • For depriving us in many cases, of the benefits of Trial by Jury:
  • For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments:
  • For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
  • He has abdicated Government here, by declaring us out of his Protection and waging War against us.
  • He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
  • He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

– In every stage of these Oppressions We have Petitioned for Redress in the most humble terms:  Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

The Southern states seceded in 1861 over what they felt were years of hostility to their sovereign interests. The high protective tariffs of 1828 and 1832 were a particular cause of contention.

In 1824, a high protective tariff was proposed by the US Congress. The purpose was to protect industry in the North which was being driven out of business by low-priced imported goods (by putting a tax on them).  On May 19, 1828, it was passed by the US Congress. It came to be labeled the “Tariff of Abominations” by the Southern states because of the negative effects it had on the Southern economy. It was a high tariff on finished products (as opposed to raw materials).  In 1828, which part of the country was producing “finished products”?   The North.  The North had the industry.  The South was still an agrarian society.  Its economy was supported by its exports – of cotton, sugar, and more. Southerners relied heavily on sales in the world market for their produce so that the protective tariffs did not offer them any service (only a detriment).  The South was harmed directly by having to pay higher prices on finished goods.  It used to buy them through imports but the tariffs made them too expensive.  The choice then was to pay the high prices or buy from the North (which was also expensive for them). The South was also harmed indirectly because reducing the exportation of British goods to the US made it difficult for the British to pay for the cotton they imported from the South.  Furthermore, because the United States enacted the high protective tariffs on foreign products, those countries retaliated on raw materials exported by the Southern states.  Other countries weren’t buying their products.  The demand for raw cotton abroad was greatly reduced.  The South responded by lowering the price on their products, cotton in particular. The North took advantage of this and bought the cotton at the lower value for their manufacturing looms.

To make matters worse, the exports of the South, along with the tariffs and customs revenues, were the only important sources of tax revenue that supported the federal government.  Some have estimated that 30% of the U.S. population (the South) was providing at least 70% of the income to the government.  In other words, the South was disproportionately supporting the federal government and yet was being disserved by it with oppressive policies.

On the one hand, the government needed the revenue that the South brought in to fund the government, but on the other hand punished them, through various policies, to harm their interests and economies. So, when the South seceded, the major source of government revenue was lost.  To some historians, the war against the South was a convenient vehicle to ensure the southern revenue base was retained to fund the treasury.

One complaint against King George could easily have been made by the Southern States against the federal government:  “For cutting off our Trade with all parts of the world.”

As Lincoln’s election became evident, secessionists made clear their intent to leave the Union before he took office the following March.  On December 20, 1860, South Carolina took the lead by adopting an ordinance of secession.  By February 1, 1861, Florida, Mississippi, Alabama, Georgia, Louisiana, and Texas followed. Six of these states then adopted a constitution and declared themselves to be a sovereign nation, the Confederate States of America.  Virginia, Arkansas, North Carolina, Tennessee, Missouri, and Kentucky soon followed. President Buchanan and President-elect Lincoln refused to recognize the Confederacy, declaring secession illegal.  Lincoln, committed to the ideal of republicanism, saw secession as an act of anarchy and was committed to restoring the republic (the Union).  In his first inaugural address, on March 4, 1861, Lincoln said:  “Plainly, the central idea of secession is the essence of anarchy.  A majority, held in restraint by constitutional checks and limitations and always changing easily with deliberate changes of popular opinions and sentiments, is the only true sovereign of a free people.  In rejecting the majority principle, anarchy or despotism in some form is all that is left.”  In that same inaugural address, he also said: “I hold that in contemplation of universal law and of the Constitution, the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

In a message to Congress later that year, on July 4, he wrote: “The distinct issue, ‘Immediate dissolution or blood’…embraces more than the fate of these United States. It presents to the whole family of man the question of whether a constitutional republic or democracy — a government of the people, by the same people — can or cannot maintain its territorial integrity against its own domestic foes. It presents the question whether the discontented individuals — too few in numbers to control the administration, according to organic law, in any case — can always, upon the pretenses made in this case or on any other pretenses, or arbitrarily without any pretense, break up the government and thus practically put an end to free government upon the earth. It forces us to ask: ‘Is there, in all republics, this inherent and fatal weakness?  Must a government, of necessity, be too strong for the liberties of its own people, or too weak to maintain its own existence?’”

In a letter to newspaper editor Horace Greeley dated August 22, 1862, Lincoln wrote:  “My paramount object in this struggle is to save the Union, and is not either to save or destroy slavery.  If I could save the Union without freeing any slave, I would do it; and if could save it by freeing all the slaves, I would do it; and if I could save it by freeing some and leaving the others alone, I would also do that.”

And in his annual message to Congress on Dec. 1, 1862, he said: “Fellow-citizens, we cannot escape history. We of this Congress and this administration, will be remembered in spite of ourselves. No personal significance, or insignificance, can spare one or another of us. The fiery trial through which we pass, will light us down, in honor or dishonor, to the latest generation. We say we are for the Union. The world will not forget that we say this. We know how to save the Union. The world knows we do know how to save it. We — even we here — hold the power, and bear the responsibility. In giving freedom to the slave, we assure freedom to the free – honorable alike in what we give, and what we preserve. We shall nobly save, or meanly lose, the last best hope of earth.”

Lincoln justified the war based on legal terms. (And certainly in moral terms as well).  He believed the Constitution was a contract (and for one party to get out of a contract all the other parties had to agree); in fact, he believed the original states joined together with the intent of forming a perpetual union. He believed they memorialized that intent expressly in the Articles of Confederation. The Articles stated both in the Preamble and in the body that the union “thus created” is “perpetual.”  Article XII stated: “The Articles of this confederation shall be inviolably observed by every state, and the union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the united States, and be afterwards confirmed by the legislatures of every state.” (The term “perpetual” was actually used five times in the Articles).  According to Lincoln, the Constitution, drafted to address the limitation of the Articles, merely created a more perfect ‘perpetual’ union.

So strongly did Lincoln believe this that he stated as such in his first in augural address: “I hold that in contemplation of universal law and of the Constitution the Union of these States is perpetual. Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper ever had a provision in its organic law for its own termination.”

Apparently, this was not the position that Lincoln always held. On the floor of the 30th Congress on January 13, 1848, Lincoln delivered this message: “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and to form one that suits them better. Nor is this right confined to cases in which the people of an existing government may choose to exercise it. Any portion of such people that can, may make their own of such territory as they inhabit. More than this, a majority of any portion of such people may revolutionize, putting down a minority intermingling with or near them who oppose their movement.”

With respect to the sovereign powers “retained by the States,” (10th Amendment), Lincoln believed that the power or right to secede was not one of them.  According to Lincoln, secession was not such a power since it is “a power to destroy the government itself.” To leave the Union would be to destroy the government.

Lincoln also cited two other constitutional sources for his belief that secession is illegal – The Supremacy Clause and the Guarantee Clause.  The Supremacy Clause, in Article VI, states:  “The Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the Supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”  Perhaps Lincoln saw secession as violating federal law, particularly the law against acts of treason.

Article IV, Section 4, clause 1 (The Guarantee Clause), states that “The United States shall guarantee to every State in this Union a Republican Form of Government.”  This clause was cited by President Lincoln to justify a war to prevent secession.

So, those were Lincoln’s reasons to ignore the fact that the Southern states had seceded from the Union and formed a new sovereign nation – the Confederate States of America – and then to wage war to bring those states back into the Union.  I had always been told that Lincoln was a brilliant man, a brilliant attorney, and a brilliant thinker.  I think perhaps I will just think of Abraham Lincoln, our 16th President, as one of the finest speechwriters and orators in history.  His Gettysburg Address, his letter to the grieving mother who lost five sons, his First Inaugural Address, and his Second Inaugural Address will always be among the most eloquent in our history.  But I have serious problems in his legal and Constitutional justifications for the Civil War.  A list of some challenges includes the following:

1).  Lincoln believed the Constitution to be a contract that and that for one party (one State) to get out of that contract, all the other parties (States) had to agree.  Lincoln represents contract law incorrectly.  Parties are only concerned about mutual consent to dissolve the contract when they wish to be relieved of any remaining obligations.  (That is, when they don’t wish to be liable for breach of contract damages). There is absolutely no principle or tenet in contract law which says that a party is required to remain committed to an agreement it no longer wishes to be.  In contract law, there are such plausible defenses such as “frustration of contract” where the goal of the contract have been rendered no longer necessary by some act unrelated to the conduct of one of the contracting parties. Furthermore, a party is relieved of the contract when one of the contracting parties does something intentional to devalue the value of that contract. There is nothing requiring a state to remain loyal to a constitution that has become destructive of the ends for which it was created.  (Who wouldn’t argue that the conduct of government today is out of control and bears like resemblance to the one that was created by compact in 1787-1790?

2).  Lincoln asserted that secession amounts to anarchy or even despotism.  Anarchy is defined as “without government or laws; lawlessness. The South quickly established a new Constitution and laws. There was no period of lawlessness or a lack of government, either for the United States of America or for the Confederate States of America.  Anarchy is what we have now with the federal government refusing to enforce the laws it was entrusted by the American people to enforce.  It is what we have in Arizona and in every sanctuary city for illegal immigrants.  It is what is responsible for the killing and slaughter of citizens at the hands of illegal drug traffickers and illegal immigrants, who have no business being here.  [This alone is ample grounds for the sovereign people or even the States to dissolve their compact with the federal government today].

3).  Lincoln asserted that the Union as established under the Articles of Confederation was perpetual.  He noted that the full title of the Articles read –  “Articles of Confederation and Perpetual Union Between the States.”  But the country was no longer organized under the Articles. It was organized under the Constitution, in order to “form a more perfect union” (and not a “perpetual union”).  Was that merely an inconvenient detail?  Did he assume that the US Constitution was an extension of the Articles and that if the states belonged to a perpetual union then they must no longer be sovereign?  But the very organization under the Articles created a loose confederation of sovereign states and a weak central government.  Most of the power remained with the state governments and in fact, the reason our Founders tended towards a new constitution was because the Articles was a weak document – it lacked enforcement ability. The government under the Articles could not raise tax revenue to pay the war debts or regulate commerce among the States. But the real failure on Lincoln’s part was in failing to appreciate the significance of the word “perpetual” in an 18th century compact. For an agreement, or compact, to be “perpetual,” it simply meant that it had no built-in sunset provision.

4).  Lincoln asserted that the states could never leave the Union because the Union is ‘perpetual.’ He went even further to say that “Perpetuity is implied, if not expressed, in the fundamental law of all national governments.”  (1861).  I question whether Lincoln never read the Founding Fathers or read about our founding history.  We know his position on ‘immortality’ is both incorrect and illogical because our Founders, in fact, wrote plenty on the topic of dissolving one’s bonds with government.  Our founding colonists understood their fundamental right to sever bonds with a government that becomes tyrannical and abusive. In explaining the reasons for our formal separation from Great Britain in the Declaration of Independence, Thomas Jefferson first made a grand statement of individual liberties, one being “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government.”  We all understand that the Declaration explicitly supports the right of a people to alter or abolish government.  John Locke, the English philosopher who wrote extensively on the design and role of government, and on whose works our Founders most relied, also acknowledged the right of a people to abolish a government that becomes illegitimate. Locke wrote: “The people “are absolved from obedience when illegal attempts are made upon their liberties or properties” because “self-defense is a part of the law of Nature.”

5).  Furthermore, William Rawle, the author of the leading constitutional-law treatise of the early-nineteenth century, entitled A View of the Constitution, wrote:  “To deny this right [of secession] would be inconsistent with the principle on which all our political systems are founded, which is, that the people have in all cases, a right to determine how they are governed.”  [Note that William Rawle, a lawyer from Philadelphia, taught classes on the Constitution at West Point, including the topic of secession. He taught from this book.  Ulysses S. Grant and Robert E. Lee were two of his students].

6).  None of our Founders believed governments were intended to be perpetual. If Lincoln had been around during the American Revolution, and if his logic prevailed, then we would all still be Englishmen.

7).  If governments were intended to be perpetual, then how could Lincoln have even justified the Constitution?  Wouldn’t he have considered the “perpetual” Articles of Confederation to be the one true instrument and government?   Furthermore, if governments were meant to be never-ending, as Lincoln reasoned, then it would follow that our current Union is illegitimate, and we must revert to the arrangement under the Articles of Confederation?  (I think most states and even the People might like that idea !!)

8).  If compacts are perpetual, how were the States able to withdraw from the Articles of Confederation?  In adopting the Articles of Confederation, the States had withdrew from the Articles of Confederation.  Surely Lincoln noticed that all of the states, over a period of three years, did so despite clearly stated wording that their Union was perpetual. (North Carolina and Rhode Island were the last to ratify, in Nov. 1789 and May 1790, respectively).  After all, the Articles clearly stated that “the Union shall be perpetual.”  Why didn’t Lincoln suggest the Articles to be, in fact, the legitimate compact?  How was Lincoln able to rationalize the fact that states withdrew from the Articles (without an agreement or firm assurances from all states that they would re-form under the US Constitution)?  Didn’t they, in fact, destroy the government in doing so?  The Founders required unanimous consent by the thirteen States before making any changes to the Articles of Confederation. Yet in spite of this requirement, and just seven years after its ratification, nine of the thirteen States tacitly this ‘perpetual’ Union when they ratified the Constitution.

9).  Lincoln cites the fact that the Articles of Confederation uses the word “perpetual” several times in describing the Union.  Article II of the Articles apparently contrasted the phrase “perpetual union.”  It stated: “Each state retains its sovereignty, freedom and independence and every Power, Jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”  [Article II of the Articles was the equivalent of and precursor to the 10th Amendment of the Constitution].

10).  Just because parties aspire to a ‘perpetual’ union doesn’t mean that it will in fact happen.  Men and women take a vow of marriage with the expectation that their union will be perpetual, and we know how that plays out in many cases.

11).  While many elements of the Articles made it into the final Constitution, the word “perpetual” was noticeably not included. Lincoln rationalized that the phrase “a more perfect union” referred to the “perpetual union” created by the Articles.  However, there was absolutely no evidence to support his claim. The Founders never offered any definition for their words “to form a more perfect Union.”  The fact is that Gouverneur Morris wrote the Preamble on his own, almost as an afterthought.  It was not debated in the Convention.  He wanted a statement setting forth the reasons why the Constitution was drafted for the People. The better conclusion is that the word was intentionally disregarded and that it was given no thought whatsoever. Obviously, the Founders felt “a more perfect” Union was the better expression of their intentions and expectations in creating the Constitution. Perhaps the Founders felt it was more likely than not that a government would eventually outlive its usefulness and would be replaced by one better suited to the needs of the people.

12).  The recurrent fatal flaw in Lincoln’s logic is that the withdrawal of a State would destroy the Union. It was upon this premise that he was so determined to preserve the “perpetual union.”  It was for this reason that he was not willing to read the power or right of secession in the 10th Amendment (“it is a power to destroy the government itself”) He made this assertion often.  ..  that it would destroy the government.  Lincoln repeatedly made this assertion that the withdrawal of a State would destroy the Union. This argument was flawed for two reasons: (i) there is nothing in the Constitution that requires the number of states to remain constant; and (ii) secession of even 13 states did not dissolve the Union.  (How useless or ineffective could it have been rendered if it won the war?)

13).  Even if we fully accept Lincoln’s theory of a perpetual Union, allowing States to secede does not change the perpetual nature of the Union—unless of course, ALL the States dissolve the compact.  The only way that would happen if there was uniform frustration with that compact. . As long as the withdrawal of States did not dissolve the Union, the number of States remaining in the Union would not change its perpetual nature.  New States could join the Union and other States could secede from that Union.  A perpetual Union would not demand that the same number of states remain the same. If that were the case, then wouldn’t we be limited to only thirteen states today?

14).  Lincoln believed that the power or right to secede was not one of the rights left to the States in the 10th Amendment.  According to Lincoln, secession was not such a power since it is “a power to destroy the government itself.” To leave the Union would be to destroy the government.  Was the government destroyed even after 13 states seceded from the Union?  Lincoln’s reasoning was therefore proved flawed. If the government was destroyed, as Lincoln contended it would be with the secession of even one state, then what institution – what sovereign – ordered a million troops to fight the South?  Which one issued the Emancipation Proclamation?   Lincoln made his frequently repeated assertion that the withdrawal of a State would destroy the Union. This was his fatally-flawed argument because there is  States could leave and the Union would still remain viable.

15).  Lincoln claimed to have power to preserve the Union (wage war) under the Supremacy Clause of the Constitution.  However, the supremacy  of the Constitution and laws made in pursuance thereof is only a valid argument if the Constitution actually requires a state to remain part of the Union or if the state is in the Union.  If the Constitution doesn’t (our Constitution is in fact silent on the subject), or if a state has separated from the Union, then the seceding state has no allegiance to the US Constitution.

16).  Lincoln also claimed legal authority to invade the South based on the Guarantee Clause.  As with the Supremacy Clause, the Guarantee Clause only applied to a state that is in the Union.

17).  Lincoln asserted that the power to secede was not a power the Founders intended for the States (for, according to Lincoln, that would be the power to destroy the government).   If the Founders didn’t intend the right of the People or States to abolish their bonds with government, then why was the Second Amendment included in our Bill of Rights?  The Second Amendment was designed to guarantee the right of the people to have “their private arms” to prevent tyranny and to overpower an abusive standing army or select militia.

18).  Lincoln apparently liked to cherry-pick which Constitutional provisions he liked and which he just intended to ignore (like the fundamental rights to writs of habeas corpus !!).  He cited Article IV, Section 4, clause 1 to support the war against the South (Guarantee Clause – “TheUnited States shall guarantee to every State in this Union a Republican Form of Government.”), yet in the same breath, he was willing to violate the very next clause, which states: “TheUnited States shall protect each of them (the States) against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.” (Article IV, Section 4, clause 2).

19).  Actually, I’m having a very hard time understanding at all how Lincoln could justify invasion with the Guarantee Clause. By invading the South, the federal government, acting under the Supreme law of the land, breached its obligation to “guarantee to each state a republican form of government” by destroying those very governments. If Lincoln believed that the states were merely in rebellion and engaging in anarchy rather than having seceded (because according to him, states don’t have that power or right), then as President, didn’t he have a duty to protect them from any violence, not to engage them in violence?

20).  It was disingenuous for Lincoln to try justifying the Civil War under Article IV, Section 4 because that would have implied that the southern states under the Confederacy would be denied a republican form of government.  Yet nothing could be farther from the truth.  In fact, Article IV of the Constitution of the Confederate States of America almost exactly mirrored  Article IV of the US Constitution and read: “The Confederate States shall guarantee to every State that now is, or hereafter may become, a member of this Confederacy, a republican form of government; and shall protect each of them against invasion; and on application of the Legislature or of the Executive (when the Legislature is not in session) against domestic violence.”

21).  It is my opinion that Lincoln’s very act of war against the Confederate states is an acknowledgment under Article IV, Section 4 that the states had legally left the Union.  The decision to invade rather than “protect from invasion” would seem to me an act of war.  War is waged on an aggressor (which the South clearly wasn’t) or on another sovereign under a manifest destiny type mentality (or moral crusade).

22).  Slavery was doomed to fail.  It was a matter of time.  Just like communism in Soviet Russia.  Compare the actions of two Presidents, Lincoln and Ronald Reagan.  Ronald Reagan didn’t just believe that the Soviet Union and communism could fail, he believed it was inevitably destined to fail.  Rather than wage war on a debilitated and economically fragile Soviet Union and endure human casualties, he helped accelerate that process through peaceful means and sound economic policies.  Couldn’t Lincoln have pursued the same path and spared the lives of 600,000 Americans and the ravaging of the South?  Why didn’t the government purchase the freedom of the slaves and then pursue policies to help modernize southern agriculture (to end the dependence on human servitude)?

23).  Lincoln claimed the Supremacy Clause of Article VI justified his position that secession was impermissible.  Again Lincoln uses selective justification for the War.  He used the Supremacy Clause as grounds to save the Union but ignored it while the government was growing hostile to southern interests by disregarding the Fugitive Slave Clause [Article IV, Section 2, Clause 3 – ” No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.”]  In other words, he ignored the Supremacy Clause when it was obvious that the government’s position on the Fugitive Slave Clause was putting the Union on a course for division, but yet invoked it to invade the South to save the Union.  All of a sudden, Lincoln decided to claim the supremacy of the Constitution.

24).  Questions of constitutional law cannot be settled on a battlefield:  “If indeed secession was a state and a people’s right, all the Union’s victory proved was that the stronger party in a constitutional conflict may violate the law with impunity.”  (Jim Ostrowski)  In the case of the Civil War, the Union’s victory not only violated the Constitution, but it violated natural law as well.  Remember, the right to “negate secession” is not a power delegated to the federal government and the right secession is not prohibited to the States by the Constitution.  Therefore, secession is a right retained by the States.  In the alternative, the issue of secession is a political question and political questions are outside the jurisdiction of federal courts.

25).  We Americans generally believe that the Gettysburg Address is the greatest and most stirring speech given by a US President. But did Lincoln get his facts right?  Those who understand the causes of the Civil War and have read the Declarations of Secession know that it was the South, not the North, that was fighting for a government of the people, by the people and for the people. As American journalist, H. L. Menchen (1880-1956), commented on Lincoln’s Gettysburg Address: “The Gettysburg speech was at once the shortest and the most famous oration in American history…the highest emotion reduced to a few poetical phrases. Lincoln himself never even remotely approached it. It is genuinely stupendous. But let us not forget that it is poetry, not logic; beauty, not sense. Think of the argument in it. Put it into the cold words of everyday. The doctrine is simply this: that the Union soldiers who died at Gettysburg sacrificed their lives to the cause of self-determination — that government of the people, by the people, for the people, should not perish from the earth. It is difficult to imagine anything more untrue. The Union soldiers in the battle actually fought against self-determination; it was the Confederates who fought for the right of their people to govern themselves.”

26).  Lastly, I criticize once again Lincoln’s ability to cherry-pick the fundamental principles he wished the government to recognize.  On the one hand, he read the Declaration’s promise that “All Men are Created Equal” as a mandate to end slavery, yet on the other hand, he chose to ignore the equally important principle that “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Looking at things from a state sovereignty point of view, saying that Lincoln saved the Union by winning the Civil War is like saying a man saved his marriage by beating his wife into submission. 

The Declaration of Independence wasn’t intended as a one-time “Get Out of Jail Free” card !!

QUESTION:   Didn’t the  Civil War establish the rule that secession is not an option for any State?

–>   Absolutely not.  As mentioned earlier, questions of constitutional law cannot be settled on a battlefield.  And again, Jim Ostrowski said it best:  “If indeed secession was a state and a people’s right, all the Union’s victory proved was that the stronger party in a constitutional conflict may violate the law with impunity.”

–>   The Civil War only showed that violent coercion can be used to rob men of their very lives, liberty, and property.  It showed that a President, unchecked, could overstep his constitutional bounds by waging war against a non-threatening, peaceful nation.  The Confederate States withdrew from the Union lawfully, civilly, and peacefully, after enduring several decades of excessive and inequitable federal tariffs (taxes) which were heavily prejudiced against Southern commerce and decades of hostility over slavery.  Refusing to recognize the Confederate secession, Lincoln called it a “rebellion,” “anarchy,” and a “threat” to “the government” (without ever explaining exactly how “the government” was “threatened” by a lawful, civil, and peaceful secession) and acted outside the lawfully defined scope of either the office of president or the U.S. government in general, to coerce the South back into the Union.

QUESTIONWhat reasons did the Southern States give for secession?

–>  South Carolina:  It seceded basically over two abuses by the federal government and the hostile Northern states, acting in violation of the Constitution and improperly through the federal government.  (Violations of Article IV, Section 2 of the US Constitution regarding the Fugitive Slave clause and the Fugitive of Justice clause).  South Carolina’s Declaration of Secession is a wonderful restatement of the reasons the states sought to “form a more perfect Union” and establish the US Constitution.  “We affirm that those ends for which the government was instituted have been defeated and the government itself has been made destructive of them by the action of the non-slaveholdng States. Those states have assumed the right of deciding upon the rights and property of our state and upon the propriety of our domestic institutions…  On the 4th of March, the Republican Party (ie, Lincoln) will take possession of the government.  The guarantees of the Constitution will then no longer exist; the equal rights of the states will be lost.  The slaveholding States will no longer have the power of self-government, or self-protection, and the Federal Government will have become their enemy…. We therefore solemnly declare that the Union between this State and the other States of North Carolina is dissolved and South Carolina has resumed her position among the nations of the world as a separate and independent State.”

[Remember that the Treaty of Paris, signed by Great Britain on Sept. 3, 1783, officially ending the Revolutionary War and acknowledging our independence, stated in Article I –  ” His Britannic Majesty acknowledges the said United States, viz: New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be FREE, SOVEREIGN AND INDEPENDENT STATES; that he treats with them as such; and for himself, his heirs and successors, relinquishes all claims to the government, propriety and territorial rights of the same and every part thereof.”]

–>  Mississippi:  It essentially seceded  over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue.  The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England). “Utter subjugation awaits us in the Union, if we should consent longer to remain in it. It is not a matter of choice, but of necessity. We must either submit to degradation, and to the loss of property worth four billions of money, or we must secede from the Union framed by our fathers, to secure this as well as every other species of property. For far less cause than this, our fathers separated from the Crown of England.”

–>  Florida:  No reasons given.  “The State of Florida hereby withdraws herself from the confederacy of States existing under the name of the United States of America and from the existing Government of the said States; and that all political connection between her and the government of said States ought to be totally annulled, and the State of Florida is hereby declared a sovereign and independent nation.”

–>  Alabama:  It also essentially seceded  over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue.   “This is an ordinance to dissolve the union between the State of Alabama and the other States united under the compact titled ‘The Constitution of the United States of America’…….  The election of Abraham Lincoln and Hannibal Hamlin to the offices of president and vice-president of the United States of America, by a sectional party, avowedly hostile to the domestic institutions and to the peace and security of the people of the State of Alabama, preceded by many and dangerous infractions of the Constitution of the United States by many of the States and people of the Northern section, is a political wrong so insulting and menacing as to justify the people of the State of Alabama to withdraw from the Union.”

–>  Georgia:  It also essentially seceded  over the issue of slavery(property rights) and the hostility by the Northern States towards the Southern States and their interests over that issue.  The Mississippi state convention listed out the several reasons for secession (as Jefferson had done in the Declaration of Independence for our separation from England) as well as a detailed history of the events pitting the pro-slavery South and the anti-slavery North leading to the election of Abraham Lincoln.  For the last ten years we have had numerous and serious causes of complaint against our non-slaveholding confederate States with reference to the subject of African slavery. They have endeavored to weaken our security, to disturb our domestic peace and tranquility, and persistently refused to comply with their express constitutional obligations to us in reference to that property (by not returning slaves to their Southern owners), and by the use of their power in the Federal Government have striven to deprive us of an equal enjoyment of the common Territories of the Republic (frustrating the spread of slavery into the western territories). This hostile policy of our confederates has been pursued with every circumstance of aggravation which could arouse the passions and excite the hatred of our people, and has placed the two sections of the Union for many years past in the condition of virtual civil war.”

–>  Louisiana:  No reasons given.  ” We declare that the State of Louisiana hereby resumes all rights and powers heretofore delegated to the Government of the United States of America; that her citizens are absolved from all allegiance to said Government; and that she is in full possession and exercise of all those rights of sovereignty which appertain to a free and independent State.”

–>  Texas:  Texas’ Declaration of Secession is in a special class by  itself – with its language.  Like South Carolina and Georgia, it lists several reasons for secession and goes into great detail.  “By the disloyalty of the Northern States and their citizens and the imbecility of the Federal Government, infamous combinations of incendiaries and outlaws have been permitted in those States and the common territory of Kansas to trample upon the federal laws, to war upon the lives and property of Southern citizens in that territory, and finally, by violence and mob law, to usurp the possession of the same as exclusively the property of the Northern States….  The Federal Government has for years almost entirely failed to protect the lives and property of the people of Texas against the Indian savages on our border, and more recently against the murderous forays of banditti from the neighboring territory of Mexico; and when our State government has expended large amounts for such purpose, the Federal Government has refuse reimbursement therefore, thus rendering our condition more insecure and harassing than it was during the existence of the Republic of Texas…

The Northern States have deliberately, directly or indirectly violated the 3rd clause of the 2nd section of the 4th article [the fugitive slave clause] of the federal constitution, and laws passed in pursuance thereof; thereby annulling a material provision of the compact, designed by its framers to perpetuate the amity between the members of the confederacy and to secure the rights of the slave-holding States in their domestic institutions – a provision founded in justice and wisdom, and without the enforcement of which the compact fails to accomplish the object of its creation. Some of those States have imposed high fines and degrading penalties upon any of their citizens or officers who may carry out in good faith that provision of the compact, or the federal laws enacted in accordance therewith.

In all the non-slave-holding States, in violation of that good faith and comity which should exist between entirely distinct nations, the people have formed themselves into a great sectional party, now strong enough in numbers to control the affairs of each of those States, based upon an unnatural feeling of hostility to these Southern States and their beneficent and patriarchal system of African slavery, proclaiming the debasing doctrine of equality of all men, irrespective of race or color – a doctrine at war with nature, in opposition to the experience of mankind, and in violation of the plainest revelations of Divine Law. They demand the abolition of negro slavery throughout the confederacy, the recognition of political equality between the white and negro races, and avow their determination to press on their crusade against us, so long as a negro slave remains in these States.

For years past this abolition organization has been actively sowing the seeds of discord through the Union, and has rendered the federal congress the arena for spreading firebrands and hatred between the slave-holding and non-slaveholding States.  By consolidating their strength, they have placed the slave-holding States in a hopeless minority in the federal congress, and rendered representation of no avail in protecting Southern rights against their exactions and encroachments….

The People of Texas dissolve all political connection with the government of the United States of America and the people thereof.”

–>  Virginia:  No reasons were given.  “The people of Virginia in their ratification of the Constitution of the United States of America, adopted by them in convention on June 25, 1787, having declared that the powers granted under said Constitution were derived from the people of the United States and might be dissolved whensoever the same should be perverted to their injury and oppression. The Federal Government has perverted said powers not only to the injury of the people of Virginia, but to the oppression of the Southern slave-holding States. Therefore, We the People of Virginia, do declare that the union between the State of Virginia and the other States under the Constitution is hereby dissolved, and that the State of Virginia is in the full possession and exercise of all the rights of sovereignty which belong and appertain to a free and independent State.  And they further declare that said Constitution of the United States of America is no longer binding on any of the citizens of this State.”

–>  Arkansas:  No reasons given.   “We declare that the State of Arkansas hereby resumes to herself all rights and powers heretofore delegated to the Government of the United States of America; that her citizens are absolved from all allegiance to said Government of the Unites States, and that she is in full possession and exercise of all the rights and sovereignty which appertain to a free and independent State.”   (same wording as Louisiana).

–>  North Carolina:   No reasons given.  [It is believed that North Carolina really didn’t want to secede but it felt that it would be positioned as a Union state stuck between two Confederate states and would therefore suffer terrible casualties of war].  ” We declare that the union now subsisting between the State of North Carolina and the other States, under the title of the United States of America, is hereby dissolved, and that the State of North Carolina is in full possession and exercise of all those rights of sovereignty which belong and appertain to a free and independent State.”

–>  Tennessee:  No reasons given.  ” We, the people of the State of Tennessee, waiving any expression of opinion as to the abstract doctrine of secession, but asserting the right, as a free and independent people, to alter, reform, or abolish our form of government in such manner as we think proper, declare that all the laws and ordinances by which the State of Tennessee became a member of the Federal Union of the United States of America are hereby abrogated and annulled, and that all the rights, functions, and powers which by any of said laws and ordinances were conveyed to the government of the United States, and to absolve ourselves from all the obligations, restraints, and duties incurred thereto; and do hereby henceforth become a free, sovereign, and independent State.”

–>  Missouri:  It seceded over the hostile invasion of the South and the government’s hostility to the Southern states. ”  Whereas the Government of the United States, in the possession and under the control of a sectional party, has wantonly violated the compact originally made between said Government and the State of Missouri, by invading with hostile armies the soil of the State, attacking and making prisoners the militia while legally assembled under the State laws, forcibly occupying the State capitol, and attempting through the instrumentality of domestic traitors to usurp the State government, seizing and destroying private property, and murdering with fiendish malignity peaceable citizens, men, women, and children, together with other acts of atrocity, indicating a deep-settled hostility toward the people of Missouri and their institutions; and  whereas the present Administration has utterly ignored the Constitution, subverted the government as constructed and intended by its makers, and established a despotic and arbitrary power instead thereof:  Therefore, all political ties of every character new existing between the Government of the United States of America and the people and government of the State of Missouri are hereby dissolved, and the State of Missouri resumes its sovereignty and again takes its place as a free and independent republic amongst the nations of the Earth.”

–>  Kentucky:  It seceded over the hostile invasion of the South and the brutal treatment of Kentucky citizens and property because of its sympathetic position to the fifteen independent Southern states. “We hereby forever sever our connection with the Government of the United States and declare Kentucky to be a free and independent State, clothed with all power to fix her own destiny and to secure her own rights and liberties.”

QUESTION:   Didn’t the Supreme Court settle the question of secession in Texas v. White, 74 U.S. 700 (1869)?

–>  The Court held that while a state doesn’t have the right of unilateral secession, there is an exception for secession “through revolution, or through consent of the States.”

The decision is actually unsettling or curious because at it turned out, the actions of President Ulysses S. Grant were in contradiction to the Court’s holding.

This case deals with title to $10 million worth of US bonds issued by the government to the state of Texas in 1851 as compensation for a border dispute, to be redeemable in 1864.  Well, in 1861, Texas seceded from the Union and took up arms in defense of the Confederacy.  Five years later, in 1866, the reconstruction government tried to reclaim the bonds. (It filed suit with the Supreme Court under Article III original jurisdiction, as a State filing suit against a citizen of another state).

Facts:  In 1851, Congress authorized the transfer of $10 million worth of United States bonds to the state of Texas as compensation for her claims in connection with the settlement of her boundary. The bonds were payable to the state or bearer and were to be redeemable in 1864. On February 2, 1861, a Texas state Convention drafted and adopted Articles of Secession and on Feb. 23, that document was ratified by a majority of the voters of the State. The convention, which had adjourned before the vote was taken, reassembled on March 2 and instructed the delegates already sent to the Congress of the seceding States to apply for admission into the Confederation and to assent to its provisional constitution.

Texas also proceeded to make the necessary changes in its State constitution to reflect its new status.  The words “United States” were stricken out wherever they occurred and the words “Confederate States” substituted, and all members of the legislature, as well as other officers of the State, were required by the new constitution to take an oath of fidelity to this new Confederate Constitution and the laws of the new confederacy.  Officers of the State of Texas were required to appear and formally take an oath of allegiance to the Confederate States. [The governor and secretary of state, refusing to comply, were summarily ejected from office].  Members of the legislature took the oath without incident and then proceeded on April 8 to provide by law for their choice of electors for President and Vice President of the Confederate States. The representatives of the State in the Congress of the United States were withdrawn, and, as soon as the seceded States became organized under a constitution, Texas sent senators and representatives to the Confederate Congress.

“In all respects, by acts of the legislature, and by votes of the citizens, the relations of Texas to the Union were broken up and new relations to a new government were established for them.”

In 1862, during the Civil War, when Texas joined the rebellion against the United States, a Texas legislature authorized the use of the bonds to purchase war supplies. Four years later, in 1866, the reconstruction government tried to reclaim the bonds.

As the Court then asked:  “Did Texas, in consequence of these acts, cease to be a State?  Or, if not, did the State cease to be a member of the Union?”

Questions Presented:  Could Texas constitutionally reclaim the bonds?  Could it avail itself of Original Jurisdiction before the Supreme Court?

The decision would turn on whether Texas, as a consequence of its acts of adopting Articles of Secession and fighting against the United States, ceased to be a State, for if the State of Texas was not, at the time of filing its suit or even when it came before the Supreme Court, one of the United States, it would have no jurisdiction over the suit and would be dismissed.

Decision:  In a 5-to-3 decision written by Chief Justice Salmon Chase, the Court held that Texas did indeed have the right to bring suit and that individuals such as White had no claim to the bonds in question. The Court held that individual states could not unilaterally secede from the Union and that the acts of the insurgent Texas legislature, even if ratified by a majority of Texans, were “absolutely null.”  Even during the period of rebellion, however, the Court found that Texas continued to be a state.  According to Chase, entry of Texas into the United States was its entry into “an indissoluble relation” and only through revolution or mutual consent of the state and the other states could that state legally leave the Union.

[Concise:  While a state doesn’t have the right of unilateral secession, there is an exception for secession “through revolution, or through consent of the States.”]

Chief Justice Chase wrote:

“The Union of the States never was a purely artificial and arbitrary relation. It began among the Colonies, and grew out of common origin, mutual sympathies, kindred principles, similar interests, and geographical relations. It was confirmed and strengthened by the necessities of war, and received definite form and character and sanction from the Articles of Confederation. By these, the Union was solemnly declared to “be perpetual.” And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained “to form a more perfect Union.” It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble if a perpetual Union, made more perfect, is not?

But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government, by the States. Under the Articles of Confederation, each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still all powers not delegated to the United States nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term that the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence, and that, “without the States in union, there could be no such political body as the United States.”  Not only, therefore, can there be no loss of separate and independent autonomy to the States through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government. The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.

Therefore, when Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State. The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body. And it was final. The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.

Considered therefore as transactions under the Constitution, the ordinance of secession, adopted by the convention and ratified by a majority of the citizens of Texas, and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, and of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation.

Our conclusion therefore is that Texas continued to be a State, and a State of the Union, notwithstanding the transactions to which we have referred. And this conclusion, in our judgment, is not in conflict with any act or declaration of any department of the National government, but entirely in accordance with the whole series of such acts and declarations since the first outbreak of the rebellion.

….. While Texas was controlled by a government hostile to the United States, and in affiliation with a hostile confederation, waging war upon the United States, senators chosen by her legislature, or representatives elected by her citizens, were entitled to seats in Congress, or that any suit instituted in her name could be entertained in this court. All admit that, during this condition of civil war, the rights of the State as a member, and of her people as citizens of the Union, were suspended. The government and the citizens of the State, refusing to recognize their constitutional obligations, assumed the character of enemies, and incurred the consequences of rebellion.

There being then no government in Texas in constitutional relations with the Union, it became the duty of the United States to provide for the restoration of such a government. But the restoration of the government which existed before the rebellion, without a new election of officers, was obviously impossible, and before any such election could be properly held, it was necessary that the old constitution should receive such amendments as would conform its provisions to the new conditions created by emancipation, and afford adequate security to the people of the State…… The President of the United States issued a proclamation appointing a provisional governor for the State and providing for the assembling of a convention with a view to the reestablishment of a republican government under an amended constitution, and to the restoration of the State to her proper constitutional relations. A convention was accordingly assembled, the constitution amended, elections held, and a State government, acknowledging its obligations to the Union, established.

The power exercised by the President was derived from his constitutional functions, as commander-in-chief, and, so long as the war continued, it cannot be denied that he might institute temporary government within insurgent districts occupied by the National forces, or take measures in any State for the restoration of State government faithful to the Union, employing, however, in such efforts, only such means and agents as were authorized by constitutional laws.

But the power to carry into effect the Guaranty Clause is primarily a legislative power, and resides in Congress.  ‘Under the fourth article of the Constitution, it rests with Congress to decide what government is the established one in a State. For, as the United States guarantee to each State a republican government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not.’

The action of the President must therefore be considered as provisional… The governments which had been established and had been in actual operation under executive direction were recognized by Congress as provisional, as existing, and as capable of continuance…..  The necessary conclusion is that the suit was instituted and is prosecuted by competent authority.

…. Title of the State was not divested by the act of the insurgent government in entering into this contract.”

Texas v. White, 74 U.S. 700 (1869).

[Note that Salmon Chase was appointed by Abraham Lincoln as a cabinet member and was a leading Union figure during the war against the South].

It is noteworthy that President Lincoln considered Texas, but no other state, to have “been a State out of the Union.”  [He argued that that the original 13 states “passed into the Union” even before 1776; united to declare their independence in 1776; declared a “perpetual” union in the Articles of Confederation two years later; and finally created “a more perfect Union” by ratifying the Constitution in 1788].

It is also noteworthy that two years after that decision, President Grant signed an act entitling Texas to U.S. Congressional representation, readmitting Texas to the Union.

Either the Supreme Court was wrong in claiming Texas never actually left the Union or the Executive (President Grant) was wrong in “readmitting” a state that, according to the Supreme Court, had never left. Both can’t be logically or legally true.

To be clear:  Within a two year period, two branches of the same government took action with regard to Texas on the basis of two mutually exclusive positions — one, a judicially contrived “interpretation” of the US Constitution, argued essentially from silence, and the other a practical attempt to remedy the historical fact that Texas had indeed left the Union, the very evidence for which was that Texas had recently met the demands imposed by the same federal government as prerequisite conditions for readmission.  If the Supreme Court was right, then the very notion of prerequisites for readmission would have been moot — a state cannot logically be readmitted if it never left in the first place.

This gross logical and legal inconsistency remains unanswered and unresolved to this day.

QUESTIONDoes the Supreme Court have the authority to make a decision about whether a state may secede or not, especially in deciding that it doesn’t?

–>  In Marbury v. Madison, Chief Justice Marshall articulated the concept of judicial review, writing that federal courts must hold the Executive and Legislative branches to their Constitutional limits. He also wrote that Justices and judges are bound by their oaths. They are bound by the “particular phraseology” and meaning of the Constitution in their analyses.

–>  Marbury would support the notion of a strict reading of the Constitution (which is silent on the issue of secession).  As James Madison explained: “Every word of the Constitution decides a question between power and liberty.”

QUESTIONIs it true that both California and Texas have such a right in the agreements they signed to join the Union?

–>   I have read that this is not true.  There are no direct provisions.  However, in both the original (1836) and the current (1876) Texas Constitutions, Article I states that “All political power is inherent in the people … they have at all times the inalienable right to alter their government in such manner as they might think proper.”

QUESTION:  What are states currently doing about States’ rights?

–>   Direct Challenges to Immigration and Healthcare

–>   Nullification Schemes (including the Repeal Amendment to the US Constitution)

–>   Repeal of 17th Amendment (Rick Perry is talking about this;  also, Tea Party is expected to force this issue)

–>  Embracing the Tea Party movement (limited government; States’ rights)

(A).  On March 24, 2010, Virginia signed into law the Healthcare Freedom Act. 

1).  It protects its citizens from being forced to purchase health insurance or participate in any health care system against their will.

2).  It is a “nullification” bill.

3).  Virginia was the first state to pass such a law (It is believed that 38 states have or still plan to do so;  Governor Perdue vetoed the NC Healthcare Freedom Bill)

4).  On March 23, Virginia’s Attorney General Ken Cuccinelli filed a lawsuit against the government challenging the legality of the health care legislation (Obamacare).  The lawsuit claims Congress exceeds its powers under the Commerce Clause.

5).  The VA Healthcare Freedom Act provided “standing” to challenge the Individual Mandate.  Cuccinelli argued that the state of Virginia, as a valid exercise of state power under the 10th Amendment, has the right to regulate healthcare for its people and the federal government has no such constitutional power to compel citizens to do so under the Commerce Clause.

6).  Cuccinelli is an activist state Attorney General who filed the lawsuit to challenge the power of the Congress under the Commerce Clause.

7).  He said: “I don’t think in my lifetime we’ve seen one statute that so erodes liberty than this health care bill.  Certainly, we view our lawsuit as being not merely about health care. That’s actually secondary to the real important aspect of the case, and that is to protect the Constitution, as we essentially define the outer limits of federal power. If we lose, it’s very much the end of federalism as we’ve known it for over 220 years.”

–  Cuccinelli vows to fight to restrain the federal government, which he calls “the schoolyard bully across the Potomac.”

–  He doesn’t hide his disdain for the Obama administration.  He says: “They have no respect for the law, for the Constitution, no respect for the states.  And no respect for the courts.”

–  He believes States’ Attorney Generals have a huge responsibility.  “They are the last line of defense when there are no principle protectors of the Constitution.”

–  He believes they must step up on behalf of their states and states in general to restrain the federal government.

–  As Frank Choderov wrote in 1952: “If for no other reason, personal pride should prompt every governor and state legislator to take a secessionist attitude. They were not elected to be lackeys of the federal bureaucracy.”

And all States should take sides with Attorney General Cuccinelli or with Florida and the 26 other states challenging the federal healthcare bill. This is not only a matter deeply entrenched in a States’ sovereign powers but it is such an offensive intrusion in an individual’s life and affairs that that it is exactly the type of violation of individual liberty that a State was expected to protect against.  The balance of power established explicitly by the 10th Amendment was to keep power over the individual closest to them…  that is, with the states and local governments.

To appreciate how scary the government’s position is with respect to its right to mandate compliance with its healthcare scheme, just look at the decision it is basing its defense of the healthcare bill on –  Wickard v. Filburn.

In 1942, in a case known as Wickard v. Filburn, the government won a great battle in having control over private property.  [The 16th Amendment income tax decision –Brushaber v. Union Pacific Railroad (1916) – was another huge victory, but that’s a topic for another day].  Wickard v. Filburn was one of the scariest decisions handed down by the Supreme Court, the justices read a greatly enlarged grant of Congressional power into the Commerce Clause, in contradiction to our Founding Fathers. The case addressed the constitutionality of the second Agricultural Adjustment Act of 1938, which was part of FDR’s New Deal. The Act empowered the federal government to set quotas and prices for agricultural products moving in interstate commerce, presumably to help farmers suffering from both the Depression and the dust bowl weather cycle of the mid-thirties, as well as to insulate consumers from price-gouging.  Filburn was one such a farmer.  He essentially was a dairy farmer who maintained a small dairy herd and some chickens on his Ohio farm.  He sold milk, poultry, and eggs on the open market.  He also planted feed for his livestock, including a small patch of wheat to feed the chickens, and to grind into flour for his own use. None of the wheat left his farm.  Unfortunately he made the mistake of planting 12 acres more than the federal quota allowed in 1941.  From this additional 12 acres, he collected a harvest of 239 bushels, which he consumed all on-farm.  He was penalized 49¢ per bushel by the government, which represented a “tax” rate of about 57% of that year’s average market price.  Enraged, and believing that the government is only entitled to regulate items that go across interstate lines, Filburn sued. He challenged the Act on the basis that the Commerce Clause did not empower Congress to regulate crops that were used for personal consumption and never left the farm (never entered interstate commerce).  The government’s position was that it had broad power under the Commerce Clause, including the power to fine (tax) surplus farm production.

Unfortunately, by 1942 when his case made its way to the U.S. Supreme Court, the judicial composition made it the most progressive Court of the 20th century.  The Court included such justices as Hugo Black, Harlan Stone, William Douglas, Felix Frankfurter, and Robert Jackson.  All but one justice had been appointed by President Roosevelt and the Court was clearly in his corner philosophically. Their unanimous decision in this case reflected the New Deal’s premise of unfettered government regulation.

Writing for a unanimous Court, Justice Robert Jackson (who would later serve, brilliantly and  eloquently, as chief prosecutor at the Nuremberg War Crimes Tribunal) held that even un-marketed excess production has an effect on interstate commerce.  As such, it can (or could) be regulated under the federal government’s commerce power, granted in Article I, section 8 of the Constitution, which permits Congress to “regulate Commerce . . . among the several States.”  Filburn’s excess production, of itself, was insignificant, but when combined with other un-marketed excess wheat production, it had a clear impact on interstate commerce.  Jackson wrote: “The maintenance by government regulation of a price for wheat undoubtedly can be accomplished as effectively by sustaining or increasing the demand as by limiting the supply….  That Filburn’s own contribution to the demand for wheat may be trivial by itself is not enough to remove him from the scope of federal regulation where, as here, taken together with that of many others similarly situated, is far from trivial.  Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulation, would have a substantial effect in defeating and obstructing [the Second Agricultural Act’s purpose to stimulate trade at increased prices.”  The rule laid down by Justice Jackson is that even if an activity is local and not regarded as commerce, it may still be regarded as such if, in the aggregate, it exerts a substantial economic effect, whether directly or indirectly, on interstate commerce.  [This, by the way, is the very argument that the government is using to defend the Individual Mandate in the Patient Protection & Affordable Care Act, or Obamacare].

In simple terms, this is what the case boiled down to…  Farmer Filburn grew wheat that he intended only for his own use, either for his family or to feed his animals.  That wheat never “entered” the flow of commerce.  It never crossed a state line, let alone even a county line.  Ownership and control of property was one of the fundamental human liberties our Founders sought to protect from the reach of government.  In fact, government was understood to be morally obligated to protect it, just as its owner would be allowed to protect it in the absence of government.  For ownership of property to be complete, the “bundle of rights” associated with that property would include those to title, control, use, and ability to dispose.  Those who’ve studied property law will remember the notion that owners of property (outright ownership) are entitled to the full and most beneficial use of their property – of course subject to the rule that their use and enjoyment doesn’t burden another’s use and enjoyment of their property (nuisance, for example).  What the Supreme Court said in this case, in its convoluted reasoning, is that if Farmer Filburn hadn’t grown that extra wheat, then he would have gone to the market and purchased it. Then he would have been actively involved in commerce.  In other words, the Court was saying that the government can compel a person to become actively involved in the flow of commerce.  If that isn’t scary enough, ask yourself this: Why should the government require you to purchase from another what you can grow or produce yourself?

The fact is that the progressive Court had long considered the implications of the Commerce Clause and how broadly it should be interpreted. Consider how sharply the Court changed their views from year 1935 to 1942.  In 1935, in the case, Schecter Poultry Corp. v. United States, a constitutional challenge was presented to FDR’s National Industrial Recovery Act which empowered the President to implement industrial codes to regulate weekly employment hours, wages, and minimum ages of employees.  The Supreme Court struck the law down as exceeding the powers delegated to Congress and to the President.  Writing for the unanimous Court, Chief Justice Hughes said: “The delegation of legislative power sought to be made to the President by § 3 of the National Industrial Recovery Act of June 16, 1933, is unconstitutional.  Congress is not permitted by the Constitution to abdicate, or to transfer to others, the essential legislative functions with which it is vested. The Act itself is also unconstitutional because it exceeds the power of Congress to regulate interstate commerce and invades the power reserved exclusively to the States…  If the Commerce Clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government. Indeed, on such a theory, even the development of the State’s commercial facilities would be subject to federal control.”  [Schecter, pg 546].  Hughes prefaced the decision by noting:  ”Extraordinary conditions, such as an economic crisis, may call for extraordinary remedies, but they cannot create or enlarge constitutional power.”  This comment particularly irritated the President. If the high Court was going to strike down his New Deal legislation, then he would replace the “nine old men” of the Court whose view of the Constitution reflected the “horse and buggy days,” through legislation.  In fact, he proposed a bill which would require that for every Supreme Court justice who refused to step down when he reached the age of 70, one additional justice would be appointed.  (6 justices were age 70 or older at the time).  Debate over the bill was intense and it was eventually rejected.

In response to the Schecter decision, FDR uttered these words in a press release on May 31, 1935: “Are we going to take the hands of the federal government completely off any effort to adjust the growing of national crops, and go right straight back to the old principle that every farmer is lord of his own farm and can do anything he wants, raise anything, any old time, in any quantity, and sell any time he wants?”

In 1939, in the case Currin v. Wallce, the Supreme Court hinted that Congress’ power under the Commerce Clause is plenary or complete.  The Court further suggested that Congress could extend its power over virtually any area that might contribute to the “General Welfare.”

The Supreme Court continued to debate the proper interpretation of the Commerce Clause and the proper classification of “indirect” activities for purposes of the Congress’ reach with respect to interstate commerce.  It asked whether the Commerce Clause allows Congress to regulate only goods that move through interstate commerce or whether it allows for the regulation of production and the means of production as well.  Seeming to abandon the rule set down in Schecter and moving towards the expansive view reflected in Currin, the Wickard Court finally settled that debate.

After the Wickard decision, economic situations would determine the extent of federal regulation. The case shows he growing willingness of the Supreme Court through the years to lend support to congressional efforts by offering an expansive reading of the Commerce Clause.  (The Court also uses the two key clauses of the Fourteenth Amendment – the Equal Protection Clause and the Due Process Clause) in much the same way.

And as explained above, not only was the Supreme Court’s expansive reading of the Commerce Clause in Wickard an insult to the American people, but equally disturbing was its the position on an individual’s right to use, enjoy, and benefit from his or her own land.

(B).  Arizona has taken the lead in challenging the federal government on Immigration.  For Arizona, immigration is a matter of state security and safety.

1).  On April 23, 2010, Arizona passed S.B.1070, a broad and strict immigration measure which would make the failure to carry immigration documents a crime and give the police broad power to detain anyone suspected of being in the country illegally.

2).  The bill followed the cold-blooded shooting death of a local rancher by illegal drug smugglers

3).  AZ’s illegal immigrant population nearly doubled in less than a decade, with a huge increase in associated illegal violence.

4).  A similar bill was vetoed by the former AZ Governor, Janet Napolitano

5).  AZ accused the government of not enforcing federal immigration laws

6).  John Morton, Obama’s head of Immigration and Customs Enforcement (under Homeland Security), said his agency would likely not process suspected illegal immigrants referred to it under S.B.1070.

7).  Poll after poll shows that the citizens of Arizona and America support S.B. 1070 by at least a 2-1 margin

Stand Down with the Federal Government –

1).  On April 23, 2010, US Attorney General Eric Holder filed suit against Arizona to block S.B.1070

2).  He threatened to file a second lawsuit challenging that its provisions amount to unlawful “racial profiling.”  (depending how the first one plays out)

3).  The government intended to declare S.B.1070 invalid and to preliminarily and then permanently enjoin its enforcement.

4).  It asserted that S.B.1070 is preempted by federal law and therefore violates the Supremacy Clause of the United States Constitution.

5).  On July 28, 2010, Judge Susan Bolton found in favor of the government’s position and blocked most of the key provisions of S.B.1070

6).  On April 16, 2011, the federal Court of Appeals for the 9th Circuit affirmed the decision.  [the 9th Circuit is the most liberal of the 13 federal appellate courts and one of the most activist in the nation.  It held the Pledge of Allegiance to be unconstitutional]

7).  Governor Brewer intends to fight on and take the case to the Supreme Court under a States’ rights argument (10th Amendment)

The 9thCircuit Hands Down an Activist Decision Against the Rights of AZ  –

1).  The decision went as far as to cite the views of anti-American dictators as a justification for holding against S.B.1070

2).  Justice Richard Paez, who wrote the decision, argued that the law has “created actual foreign policy problems.”  Among the “problems” he cited was the disapproval of the Mexican government, the United Nations Human Rights commissioners, the government of Bolivia, and the Organization of American States. The UN Commission on Human Rights just happens to include such dictatorships such as Cuba and Saudi Arabia.  And the Organization of American States includes such members as Cuba and the socialist dictatorships of Bolivia and Venezuela.

3).  The United States has not had diplomatic relations with Cuba for more than fifty years. In 2008, Bolivian President Evo Morales said that all Latin American nations should expel American ambassadors and cheered on a mob who tried to burn down our embassy. He said, “I don’t mind being a permanent nightmare for the United States.”  Venezuela’s dictator Hugo Chavez has spewed so much anti-American rhetoric that even Barack Obama expelled their ambassador just three months ago. Chavez had called Bush the “devil” and Obama “Satan.”

4).  The idea that the S.B.1070 will affect our relationships with these countries is preposterous.

5).  Judge John Noonan wrote a concurring opinion against Arizona in which he argued that S.B.1070 would upset our relations with Mexico, which he called a “policy…of cordiality, friendship and cooperation.”  Really?

[Senator Russell Pearce, “9th Circuit Court of Appeals’ S.B.1070 Decision Demonstrates Contempt for Constitution,” Intellectual Conservative, April 16, 2011]

Repeal of the 17th Amendment  –

The 17th Amendment states:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.”

1).  The 17th Amendment altered the wording of Article I, Section 3, clause 1, which read: “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years, and each Senator Shall have one vote.”

2).  Originally, each Senator was elected by his state’s legislature to represent that state in the Senate.

This was intended to protect each state’s power within the federation established by the Constitution by having its own direct representation in the Congress.

3).  The amendment was adopted in 1913.

4).  The 17th Amendment was a slap in the face to the States and to States’ rights.

5).  Texas Governor and Presidential hopeful Rick Perry is talking about repealing the 17th Amendment and also there is talk that the Tea Party will try to force this issue

James Madison thought that the States should be active participants in the Federal Government.  He said: “Whenever power may be necessary for the national government, a certain portion must be necessarily left with the states, it is impossible for one power to pervade the extreme parts of the United States so as to  carry equal justice to them. The state legislatures also ought to have some means of defending themselves against the encroachments of the national government. In every other department we have studiously endeavored to provide for its self-defense.  Shall we leave the states alone un-provided with the means for this purpose?  And what better means can be provided than by giving them some share in, or rather make them a constituent part of, the national government?”

Since the enactment of the 17th Amendment, the states have been reduced from an equal l partner with the federal government to a common lobbyist, which has resulted with the loss of state sovereignty, loss of state rights, and a host of federal mandates some of which are funded and some which are not (requiring tremendous state resources the states don’t have).  Such mandates include the No Child Left Behind Act, Medicare, Medicaid, and Obamacare.

The Repeal Amendment  —

The Repeal Amendment, sponsored by Senator Mike Enzi (R-WY) and Rep. Bob Bishop (R-UT) and introduced on May 15, 2011, would basically give states a veto over Washington.  It is the brainchild of distinguished Georgetown Constitutional Law Professor Randy Barnett. The amendment states:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for the purpose that particularly describe the same provision or provisions of law or regulation to be appealed.“

The Amendment was inspired by Barnett’s April 2009 article in the Wall Street Journal, which described Constitutional remedies for taking our country back. The Amendment was publicly proposed for the first time on September 15, 2010.  Just two months later, it gained the support of prominent legislators in nine states: Virginia, Utah, New Jersey, Georgia, Texas, Minnesota, Florida, Indiana, and South Carolina. Virginia has led the way with support from Governor McDonnell, Attorney General Ken Cuccinelli, House of Delegates Speaker Bill Howell, and Lieutenant Governor/Senate President Bill Bolling, in addition to US Representative Eric Cantor.

Rep. Cantor explains the need for the Repeal Amendment:  “Cantor explains the need for the Repeal Amendment:  “Washington has grown far too large and has become far too intrusive, reaching into nearly every aspect of our lives.  In just the past few years, Washington has assumed more control over our economy and the private sector through excessive regulations and unprecedented mandates.  Our liberty and freedom has lessened as the size and scope of the federal government has exploded.  Massive expenditures like the stimulus, unconstitutional mandates like the takeover of health care, and intrusions into the private sector like the auto-bailouts have threatened the very core of the American free market.

Since the Repeal Amendment has been proposed, it has gotten a lot of attention.  On November 23rd, Professor Barnett and Virginia House Speaker Howell went on Fox Business News to discuss the proposal with Fox News’ Senior Legal Analyst, Judge Andrew Napolitano. Napolitano was ecstatic about the idea.  He said, “This sounds almost too good to be true, if it could happen. We wouldn’t have unfunded mandates; the Tenth Amendment would reign supreme; the states would be sovereign within their own borders…”  But he also shared some concerns, one of them being the difficulty in adding a constitutional amendment (which was the very intent of our Founders in adding Article V).

According to Article V of the U.S. Constitution, there are two ways it can be accomplished:

1).  Both Houses of Congress agree to propose an Amendment with a two-thirds majority vote.

2).  Two-thirds of state legislatures (34 states) pass a resolution to call for an Amendment Convention to vote on the amendment.

In both cases, the amendment must be ratified by three-fourths of the state legislatures (= 38 states).

Some of Napolitano’s other concerns include the uncertain nature of state Amendment Conventions and the willingness of Congress to vote against its own interests.  In his interview, the Judge asked: “If it turns out the states are successful in suing for an Amendment Convention, would it become a ‘runaway Convention’?” (by this, he means that once the states call such a convention, nothing is off the table. They can discuss anything).   He also asked whether Congress in fact would bring the Amendment to the floor of Congress being that it so boldly confronts their power.

In addressing the concern about Congress’ potential hostility, Delegate Howell responded that if such an amendment is requested by two-thirds of the states, Congress has no choice in the matter.  He acknowledged the influence that Tea Party groups have had on the attitudes of many in Congress, especially regarding fiscal conservatism and limited government.

Supporters of the Amendment Supporters are optimistic, saying the time has come for States to take back the power Congress has increasingly usurped.  And maybe, just maybe, they are right.

QUESTIONWhat ekse can the States  do?

–>  Nullification and peaceful secession are the only true means of returning to a system of government that respects rather than destroys individual liberty.  A return to an era of strong sovereign states is the answer to reigning in the size and control of the federal government.

A 2008 Zogby International poll revealed that 22% of Americans believed that “any state or region has the right to peaceably secede and become an independent republic.”  Some have argued for a constitutional right of secession and others have claimed for recognition of a natural right of revolution. Adopting a Constitutional amendment at this point in our history might seem unlikely because most citizens, through the indoctrination they receive in the public school system, believe the Civil War decided the issue of secession once and for all.  (it will not be tolerated).  In White v. Texas, the Supreme Court held that unilateral secession is not allowed but noted that revolution or consent of the states could lead to a successful secession.

First, let’s be clear about what the Constitution says or doesn’t say.  The power to “negate secession” or “prevent secession” is not a power, either expressly or implicitly, delegated to the federal government.  It is not a right prohibited to the States.  Therefore, under the 10th Amendment, States retain the right to secede and sever their bonds with other states to be governed under the dictates of the US Constitution and the federal government.  Questions of fundamental rights and constitutional law cannot be settled on a battlefield. The only thing that the Civil War proved was that the stronger Army defeated the weaker Army and exercised its spoils of victory to violate the Constitution and the natural rights of the defeated States.

Let’s review what happened with the Civil War – with a broad overview .  On May 27, 1861, the army of the United States of America invaded the sovereign state of Virginia, which had submitted its Declaration of Secession earlier that month, in a forceful effort to “negate” that secession.

Four years later, and with 620,000 Americans slaughtered, the United States defeated the Confederate States of America, forced the states back into the Union, and thus, negated the secession their secession. The government forced a series of “conditions” on the defeated states before they would be formally re-admitted to the Union, including ratification of the 14th Amendments, establishment of new state constitutions, execution of  oaths of allegiance to the Union, disqualification of former Confederate officials from office, and the guaranteeing black males the right to vote. President Andrew Johnson saw the Reconstruction Act as “absolute despotism,” a “bill of attainder against 9,000,000 people,” and vetoed it on March 2, 1867.  [Bill of Attainder = A legislative act that singles out an individual or group for punishment without a trial].  In his veto message, he stated that “such a power had not been wielded by any Monarch in England for more than five hundred years.”

The Civil War ended the immoral institution of slavery, but it left the South in economic ruins, set the stage for 12 years of oppressive military rule, and left a segment of our country still suffering from the bitter experience of trying to exert their independence.  While slavery was clearly on Lincoln’s mind, especially when he figured out he could use it to energize the abolitionist movement and incite slaves to fight for their freedom and therefore further the North’s position in the War, he had very little concern and respect for other fundamental liberties – the ones our Founders specifically listed in the Declaration of Independence as being secure in our new nation.  Freedom against unlawful detention and the right of habeas corpus and freedom from government confiscation of property are just a few.  Of course Lincoln showed the most callous disregard of all for the guarantee  ”That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness…”

[See Ex parte Milligan (1866) a case challenging one of Lincoln’s unlawful detentions.  Lambdin Milligan and four others were accused of planning to steal Union weapons and invade a prisoner-of-war camp containing Confederate soldiers.  They hoped that once the first prisoner of war camp was liberated,  the liberated soldiers would take up arms and help free other Confederate soldiers from their prisoner camps.  The plan was leaked and Milligan and the others were charged, found guilty, and sentenced to hang by a military court in 1864.  President Lincoln enacted a wartime statute suspending the privilege of a writ of habeas corpus in those cases where military, naval, and civil officers of the United States ‘hold persons in their custody either as prisoners of war, spies, or aiders and abettors of the enemy, . .”   Milligan, thus, was unable to challenge his detention and sentence.  Luckily, the execution date was not set until May 1865 and so once the War was over, Milligan was given a chance to challenge his denial of habeas corpus.

Although the Court held that Congress has the power to pass severe measures in time of war, this particular instance was unconstitutional.  Chief Justice Salmon Chase, writing for the majority, wrote: “Where peace exists the laws of peace must prevail.  What we do maintain is, that when the nation is involved in war, and some portions of the country are invaded, and all are exposed to invasion, it is within the power of Congress to determine in what states or district such great and imminent public danger exists as justifies the authorization of military tribunals for the trial of crimes and offences against the discipline or security of the army or against the public safety.”  In the end, the Court held that the prohibition against unlawful detention by the US Constitution is such a valued fundamental right and one which has the greatest potential to be abused in wartime, that such trials of civilians by presidentially-created military commissions are unconstitutional.  Martial law cannot exist where the civil courts are operating. In Indiana (where Milligan and the others were arrested), as well as in the rest of the Northern, the US Constitution was still upheld and recognized as supreme law and so civil courts were operating.

As a result of Lincoln’s suspension of habeas corpus and the resulting policy of arbitrary arrests, an estimated 13,000 civilians were seized and confined on the suspicion of disloyalty or of being sympathetic to the Southern cause]

The Civil War resulted in a tremendous expansion of the size and power of the federal government.  It gave us our first federal conscription law, and our first progressive income tax (to pay for the debt created by the war), for example.  It gave us the 14th Amendment (which would be used to neuter the 10th Amendment) and a whole host of Civil War legislation. Social reform was right down the road.  In his book Our Enemy (1950), Albert Jay Nock wrote:  “The doctrine of ‘reserved powers’ was contrived ex post facto (after the fact) as justification for his acts, but as far as the intent of the Constitution is concerned, it was obviously pure invention, In fact, a very good case could be made out for the assertion that Lincoln’s acts resulted in a permanent radical change in the entire system of constitutional ‘interpretation’ – that since his time ‘interpretations’ have not been interpretations of the Constitution, but merely of public policy….  A strict constructionist might indeed say that the Constitution died in 1861, and one would have to scratch one’s head pretty diligently to refute him.”

Since the Civil War, there have been two main legal developments which might appear to impact secession:  (1) the amendment of several state constitutions to prohibit secession and  (2) the passage of the 14th Amendment.  While under military occupation and control, the states of Virginia, North Carolina, South Carolina, Florida, Mississippi, and Arkansas each established new state constitutions which contain a clause prohibiting secession.  Once these states did so, federal military troops were withdrawn.

Legally, the clauses prohibiting secession cannot serve to invalidate a state’s right to secede from the Union.  There are several theories to support his:

(i)  First, the clauses were added under duress.  They were forced as a means of punishment and submission. Duress is a valid and recognized defense to contract enforcement.  This fundamental principle of contract law states that a contract made under duress is voidable at the election of the aggrieved party.

(ii)  Second of all, no contract can deny an inherent right of self-preservation.  For example, no contract can deny a person his right to seek any available treatment for a life-threatening illness or condition.

(iii)  These states mentioned above have the opportunity at any time to amend their constitutions and eliminate the secession clause.  If they choose not to do so, it doesn’t mean they are acknowledging that they no longer have the “right.”  It simply means that they are not choosing to “exercise” that right at the present time.   The right still exists.  It always has and always will.

(iv)  All states have equal rights in the Union.  The fact that other states have not relinquished their right to secede means that the Southern states are also recognized as having that right.

The 14th Amendment shouldn’t pose a problem since a State that secedes from the United States has no duty to recognize the US Constitution.  The problem might come in with Section 1 which reads: “…… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States…”  (The Privileges and Immunity Clause of the 14th Amendment).  If we were to ever have another President like Abraham Lincoln, he might use this Clause to re-establish the rights of the people to the privilege and immunities of the United States.

But the point to remember is that once the government exceeds its bounds, as established by The People under the Constitution, or assumes powers not delegated to it by the “consent of the governed,” then the government technically becomes void and non-binding on the States and the people.  We don’t need the Supreme Court to tell us its interpretation of the Constitution.  We have the very words and writings of the very men who drafted our Constitution and created our government.

Thomas Jefferson wrote: “The several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of the Constitution of the United States, and of certain amendments thereto, they constituted a general government for general purposes, delegated to that government certain powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whosoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no effect.”

So what does this all mean?  Should the States and American people consider repealing the 14th Amendment, or at least parts of it?   Personally, I would support such a repeal.  The 14th Amendment was passed to make sure that hostile states did not discriminate against the newly-freed blacks. It was passed so that they would be treated equally under the law and would enjoy all the privileges of US citizenship.  We live in a color-blind society today.  Racial equality has been reached, despite what Reverend Al Sharpton, Jesse Jackson, Maxine Waters, and other race-baiters like to argue.  Equal opportunity exists.  Equal protection exists.  And so, there is no more reason for the States to suffer under the 14th Amendment.  The 14th Amendment has taken a huge area of regulation away from the States on behalf of their citizens. The states have inherent police powers (to regulate for the safety, health, welfare, and morality of its citizens) which have been neutered by the 14th Amendment. Allowing the individual states to regulate locally provides a variety of solutions to common problems – a virtual free market of ideas.  Competition among states has the tendency to improve the quality of life for everyone.

Additionally, the 14th Amendment has provided the federal courts with an enormous opportunity for abuse.  In addition to the de facto grant of legislative and executive power to judges, the 14th Amendment includes a de jure grant of power to Congress. Section 5 reads:  “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.”  Conduct in one state is often imputed to the other states.  Since the Brown v. Board of Education decision(1954; decided under the Equal Protection clause of the 14th Amendment), equality before the law has shifted effortlessly into forced equality of outcome.

While we the people were being overwhelmed and distracted by a rapidly increasing government, a slew of progressive and activist Supreme Court decisions, and an enlarging entitlement mentality, government usurped our power.  The servant has become our master.

Nullification and peaceful secession are the only means of returning to a system of government that respects rather than destroys individual liberty.  But secession is a desperate solution and therefore should be a measure of last resort. Nullification, therefore, is the course that the States and the people should pursue.  A return to an era of strong sovereign states is the answer to reigning in the size and control of the federal government so that our system resembles the one envisioned by our Founders.  It is the only way to “restore” our nation from the fundamental transformation that been in place since the Civil War.  (A person “transforms” something that he isn’t happy with but “restores” some that has great value).  Our Founders came up with a unique and special formula to enhance and maximize individual liberty and the government has found a way to re-figure it.

States should, among other things, do the following:

1).  Support the Repeal Amendment

2).  Repeal the 17 Amendment

3).  Challenge federal laws and executive action that exceed the powers granted by the US Constitution

4).  Scrutinize acts of Congress and actively pass nullification bills (exempting its citizens from being subject to them)

5).  Decline federal funding.  (and for every State that adopts such a policy), then it should demand that its citizens be afforded a tax credit on their federal income tax because citizens of one state should not be funding projects for another state).

6).  Support a Constitutional amendment that requires that federal court judges to cite the Founding Fathers or Ratifying Documents to support the meaning, intention, and spirit of the Constitutional provision at issue.

7).  Repeal any clauses in their state constitutions prohibiting secession (Stand up for your rights !!)

The People should, among other things:

1).  Become educated about their Constitution and read what our Founders had to say about it

2).  Become engaged in the election process, especially in the vetting of candidates

3).  Elect candidates that support States’ rights (local and federal)

4).  Research all judges that are running for judicial positions and elect only those who are “strict constructionists”

4).  Challenge federal laws that exceed Congressional authority under the Constitution and invade the states’ lawful sphere of regulation.  [See Bond v. United States, 564 U.S. __ (2011);  Individuals have standing to challenge a federal statute that legislates beyond the federal government’s enumerated powers and interferes with the powers reserved to States.  Individuals have standing because the proper division of sovereign power between the States and the federal government (= federalism) serves to protect and secure individual liberty].

North Carolina, my home state, still has the secession prohibition clause in its state constitution:

North Carolina Constitution:  Article I, Sec. 4. Secession Prohibited. This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.

This clause is an insult because it bears the mark of punishment and shame. It reflects a defeated spirit and a defeatist attitude.  A proud state, a strong state doesn’t publicly announce to the world that it will forever blindly follow a tyrannical central government.

QUESTIONWhat is Agenda-21 and should the States be concerned?

–>  Agenda-21 is a massive land regulation initiative. Yes, the States should be concerned.  Agenda-21 will impose hugely burdensome and expensive regulations on private landowners to live sustainably with respect to natural resources and the hyped-up anti-global warming movement.  States should defend the rights of its citizens to own and enjoy their property (as long as they don’t burden the rights of others in doing so).

Agenda-21 will eventually impact private land development in every state in the United States. Agenda 21 is a UN initiative on sustainable land development, adopted by more than 178 Governments at the United Nations Conference on Environment and Development (UNCED) held in Rio de Janerio, Brazil, in June 1992 and then reaffirmed at the World Summit on Sustainable Development (WSSD) held in Johannesburg, South Africa in August-September 2002.  It is a comprehensive plan of action to be taken globally, nationally and locally by organizations of the United Nations, governments, and major groups in every area in which humans impact on the environment.  It will involve massive regulation and will be implemented through ICLEI, a network of local governments committed to sustainability. So far, there are 10 cities or counties alone in my state of North Carolina which have joined ICLEI to implement sustainability measures locally –  Asheville, Carrboro, Cary, Chapel Hill, Charlotte, Chatham County, Durham, Orange County, Raleigh, and Winston-Salem.

Add this new level of regulation on top of the Food Safety Bill, supported by our North Carolina’s own Senator Richard Burr (booo!!), which just granted the Food and Drug Administration (FDA) new powers (just what it needs) to regulate farm land and the farming industry. The Food Safety Bill will already do incredible harm to farming in NC.  Farmers and others to make a living off the land cannot absorb any more regulation and continue to survive?  What is private property worth when the means to control it, enjoy it, and use it for its maximum potential are destroyed by onerous government regulation?

As Ronald Reagan asserted in his “A Time For Choosing” speech in 1964: “The notion of ‘the full power of centralized government’ was the very thing the Founding Fathers sought to minimize. They knew that governments don’t control things. A government can’t control the economy without controlling people. And they know when a government sets out to do that, it must use force and coercion to achieve its purpose. They also knew that outside of its legitimate functions, government does nothing as well or as economically as the private sector of the economy.  Private property rights are so diluted that public interest is almost anything a few government planners decide it should be…. Now it doesn’t require expropriation or confiscation of private property or business to impose socialism on a people.  What does it mean whether you hold the deed or the title to your business or property if the government holds the power of life and death over that business or property?  And such power already exists. The government can find some charge to bring against any concern it chooses to prosecute.  Every businessman has his own tale of harassment. Somewhere a perversion has taken place. Our natural, unalienable rights are now considered to be a dispensation of government, and freedom has never been so fragile, so close to slipping from our grasp as it is at this moment. This is the issue.. Whether we believe in our capacity for self-government or whether we abandon the American Revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.”

People need to keep their ears open for initiatives in their counties that incorporate the typical buzz words: “sustainability,” “green,” “recycle,”  etc.

QUESTIONShould the States be concerned with the bloated size of the federal government?

–>   Yes.  The government was intended to be one of limited powers and responsibilities. The bulk of the powers were to remain with the people and the States, so that individuals could truly enjoy and benefit from their God-given liberties.  Currently, there are 473 government departments and agencies, many which are duplicative.  [See:]   The current trend is for the federal government to ignore the responsibilities it was initial vested with (such as Immigration and National Security) and to insinuate itself in all state and personal affairs.

According to Madison, the idea was to keep the power base close to the people.  The emphasis was on strong local self-government. The states would be responsible for internal affairs and the federal government would confine itself to those areas which could not be fairly or effectively handled by the states (such as raising an army, providing a Navy, regulating Commerce among nations and among the several states, raising revenue, regulating money, and establishing rules for Naturalization and Immigration).  Power closest to the people is almost most responsive to the people.

It is said that there is so much government regulation that at any given moment, each of us is violating one law or another.  It’s not because we simply can’t abide by all the laws (which perhaps we can’t), but it’s because the laws are so numerous and so volumnous that we simply can’t keep up.  John Locke warned us about allowing the government to regulate too much and to make too many laws.  When laws become too numerous and detailed, they can destroy liberty just as surely and effectively as having no law.

Thomas Jefferson said: “To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

QUESTIONShould the States be concerned about the growing “Nanny State” ? 

–>  Absolutely.  The government taxes individuals excessively – to fund big government and to “condition” and control states through federal grants and subsidies.  States accept government funding and its conditions because they can’t raise enough state funds to do everything it needs.  They can’t raise enough state funds because they know that individuals are already taxed excessively by the federal government and they can’t burden their residents with increased state taxation.  Money that is kept local is most easily controlled by the people for its most beneficial and highest uses.  Local politicians who control the money feel more accountable to the people.  Funding is less likely to be needed from the federal government which keeps them from being “commandeered” by the government to serve its purposes and advances its policies.

Early in the 20th century, the federal government adopted the mindset that the government should take care of those in our society who genuinely can’t do for themselves and those who temporarily fall behind.  They understood that a compassionate government should provide a safety net for its citizens.  Although the vision was well-intentioned, the temptation for abuse and fraud was not only felt by the people themselves but by government as well.  The “safety net” quickly turned into a “way of life” for to many people.  The “safety net” quickly became the new “American Dream” and it changed the character of the types of immigrants who come to our shores and across our borders.

Social Security was once considered a ‘right’ by American workers because it was their money, after all. The government withheld Social Security payments to keep in a “safe” fund for the individual once they retired.  It was a “safety net.”  If the person had no other means of income, at least he or she could collect the money the government ‘forced’ them to set aside.  But Social Security became a ‘right’ even to those who didn’t contribute. Then the government began to raid the people’s funds.  It no doubt used the money to provide other “entitlement” programs.

Soon we saw the “safety net” become an automatic “entitlement.”  And the programs grew.  And the people became more and more dependent on the government than they did on their own initiative, ambition, and resources.  The social pressure of success and contribution – the mentality that created this nation and helped it flourish – was gone. And just as little children become unruly when they are not shown discipline, Americans have become a morally and ethically weaker breed. The need for a good education is no longer an imperative.  The concepts of risk and sacrifice and innovation and hard work don’t equate as strongly with the notion of the “American Dream” as they used to. Stable families have been eroded because where young men and women once had to make good personal choices in their lives, government programs are easily available so that those choices don’t have to be made.  A woman doesn’t need a bread-winner any longer so she can stay home and raise well-mannered, productive, studious children. She can have children and the government will fund them AND raise them !!  The Nanny State has been created. The problem is that government funding doesn’t foot the entire bill.  The States pay a huge chunk into these programs.  And what do they get in return?  They get  dumbed down populace with little respect for rules and social norms and a generational mentality of dependence.. not to mention the increase in crime and social decay.  They become  a drain on the state rather than a contributor.

In his “A Time for Choosing” speech, Ronald Reagan talked about government’s role in social planning and wealth distribution. In addressing the mentality that lead to such social planning, he said: “We have so many people who can’t see a fat man standing beside a thin one without coming the conclusion the fat man got that way by taking advantage of the thin one. So they’re going to solve all the problems of human misery through government and government planning. Well, now, if government planning and welfare had the answer—and they’ve had almost 30 years of it—shouldn’t we expect government to read the score to us once in a while?  Shouldn’t they be telling us about the decline each year in the number of people needing help? The reduction in the need for public housing? But the reverse is true. Each year the need grows greater; the program grows greater.” Looking at the number of people on welfare who are obese and lazy, one today can ‘come to the conclusion that they got that way by taking advantage’ of those who aren’t.

At an event at the Ronald Reagan Library on August 24, Senator Marco Rubio said: “Though the vision was well intentioned, it was doomed to fail from the start. It was doomed to fail from the start first and foremost because it forgot that the strength of our nation begins with its people and that these programs actually weakened us as a people. You see, almost in forever, it was institutions and society that assumed the role of taking care of one another.  If someone was sick in your family, you took care of them. If a neighbor met misfortune, you took care of them. You saved for your retirement and your future because you had to.  We took these things upon ourselves and our communities and our families and our homes and our churches and our synagogues. But all that changed when the government began to assume those responsibilities. All of the sudden, for an increasing number of people in our nation, it was no longer necessary to worry about saving for security because that was the government’s job. For those who met misfortune, that wasn’t our obligation to take care of them, that was the government’s job. And as government crowded out the institutions in our society that did these things traditionally, it weakened our people in a way that undermined our ability to maintain our prosperity.

Program after program was crafted without any thought as to how they will be funded in future years or the impact it would have on future Americans. They were done with the best of intentions, but because it weakened our people and didn’t take account the simple math of not being able to spend more money than you have, it was destined to fail and brought us to the point at which we are at today.

Americans in the 20th Century built the richest, most prosperous nation in the history of the world.  And yet today we have built for ourselves a government that not even the richest and most prosperous nation in the face of the Earth can fund or afford to pay for. An extraordinary tragic accomplishment, if you can call it that.  And that is where we stand today. And so, if defining the proper role of government was one of the central issues of the Reagan era, it remains that now.”

Senator Rubio is right.  It is all about the proper role of government.  When government embraces those limited areas it was intended to be responsible for, and leaves the remaining matters to the States and to the People, then there will be true competition and prosperity.  And it is the States which need to take the lead and set that division of power and responsibility back to where our Founders intended.  The nation needs a massive re-adjustment and the States must take the lead.  They need to reign in the power of the federal government, for the sake of liberty and for the sake of our children.

Calvin Coolidge, the 30th President of the United States, once said: “To live under the American Constitution is the greatest political privilege that was ever accorded to the human race.”

We have inherited our freedoms at great cost from our forefathers.  Those precious freedoms were once well- protected under the our Constitution, thanks to a group of intelligent, forwarding-thinking and liberty-minded public servants. The question we must ask ourselves today is whether our freedoms are as well-protected as they need to be.  Secession is not the answer, but education, recognition, discussion, perseverance, and commitment are.  If we aren’t willing to do that, then our Constitution is worth nothing more than the piece of paper it was written on.

As Ronald Reagan warned: “You and I have a rendezvous with destiny.  We’ll preserve for our children this, the last best hope of man on earth, or we’ll sentence them to take the last step into a thousand years of darkness.”  


1).  Wickard v. Filburn, 317 U.S. 111 (1942)

2).  Texas v. White, 74 U.S. 700 (1869).  Referenced at: ]

3).  US Constitution Online.

4).  Chuck Braman, “The Political Philosophy of John Locke and Its Influence on the Founding Fathers and the Political Documents They Created,” 1996. Referenced at:]

5).  William Rawle, A View of the Constitution of the United States. Philadelphia: H.C. Carey and I. Lea, 1825.]

6).  “Texas Secession Facts,” Texas Secede!.  Referenced at

7).  Thomas Paine, “The Truth About Secession,” NoCompromiseMedia , June 25, 2009.  Referenced at: ]

8).  “Wickard v. Filburn,” Common Sense Americanism.  Referenced at:

9).  “Wickard v. Filburn – Supreme Court Extends Commerce Power To Production.”  Referenced at:

10).   (Primary Sources)

11).  Federal Directory of Departments and Agencies:

12).  “Lincoln on Secession,” The Real Abraham Lincoln.  Referenced at:

13).  James Ostrowski, “Was the Union Army’s Invasion of the Southern States a Lawful Act?,” Secession, State, and Liberty, New Brunswick, N.J.: Transaction Publishers, 1998).  Referenced at:

14).  Senator Russell Pearce, “9th Circuit Court of Appeals’ SB 1070 Decision Demonstrates Contempt for Constitution,” Intellectual Conservative, April 16, 2011.  Referenced at:

15).  James Simpson, “Breaking – Power to the People! Repeal Amendment Gaining Strength,” Emerging Corruption, November 27, 2010.  Referenced at:

16).  “Is, as Lincoln Said, The Union Perpetual?”, Secession University.  Referenced at:

17).  Schecter Poultry Corp. v. United States, 295 U.S. 495 (1935).  See Cornell University Law School.  Referenced at:

18).  Currin v. Wallce, 306 U.S. 1 (1939).

19).  Thomas Woods, The Politically Incorrect Guide to American History, 2004, Regnery Publishing, Washington DC.

20).  Marco Rubio, Speech at the Ronald Reagan Library, Aug. 24, 2011.

21).  Ex parte Milligan, 71 U.S. 71 (1866).

22).  Ronald Reagan, “A Time fod Choosing.”  Referenced at:

23).  Jim Ostrowski, “Secession.”   Referenced at:

24).  ”Middlebury Institute/Zogby Poll: One in Five Americans Believe States Have the Right to Secede,” Zogby International, July 23, 2008.

25).  Thomas J. DiLorenzo, “The Men Who Destroyed the Constitution,” Lew Rockwell. Referenced at:

26).  Gene Healy, “The Squalid 14th Amendment,” Lew Rockwell.  Referenced at:

27).  Andrew Napolitano, The Constitution in Exile, Thomas Nelson Publishing (April 18, 2006).

The Tea Party is Here to Stay

by Diane Rufino, July 29, 2011

It is said that the Tea Party movement started with a rant by Rick Santelli, CNBC correspondent, on the trading floor of the Chicago Mercantile Exchange on Feb. 19, 2009 but the truth is that it started long before that.

The Tea Party movement started over 200 years ago, on December 16, 1773, with a simple act of civil disobedience in rejection of a small tax on tea – “a 3 pence.”  On that evening, approximately 100 “radicals” from Boston, members of a secret organization of American Patriots called the Sons of Liberty, dressed up as Mohawk Indians, boarded three East India Company ships, and dumped 342 chests of tea into the Boston Harbor.  The Boston Tea Party would have as a direct consequence (albeit in 1775) the firing of the first shots of the Revolutionary War…. and then, our independence from a tyrannical government.

Just as John Adams commented that the American Revolution was in the hearts and minds of the colonists even before a drop of blood was spilled at Lexington – “The Revolution was in the minds and hearts of the people; a change in their religious sentiments of their duties and obligations. This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution” – our current (tax and spend) revolution has been in the hearts and minds of ordinary hardworking folks even before Barack Obama took office.

Conservative voters were already questioning why the government was bailing out banks  (Bush signed a $700 billion plan to bail out banks), why billions of dollars of their hard-earned tax money was  being spent on enlarging government programs, and why politicians were willingly saddling their children with government debt.

Then when Obama was inaugurated on Jan. 20, 2009, he quickly appointed people (czars) like Larry Summer and Tim Geithner to his team who were all seen as people who were part of the problem  rather than capable of offering solutions.  Stephanie Jasky, a paralegal from Detroit, Michigan, chatted: “We were hemorrhaging money.  I was looking for answers – I wanted to know what had happened. The more I looked the more it became clear to me that the problem was our government, that the government had become the criminal.” Jasky was one of those citizens who took up the idea of sending her elected officials in the US Congress tea bags as a form of protest. She loved the idea. She bought a box of tea bags and sent one to every member of Congress.  She said: “All these bailouts and stimulus packages — it was taking our money and spending it without our permission. Taxation without Representation.  Isn’t that what the Revolutionary War was all about?  Doesn’t anyone remember King George?”

On February 15, 2009, a young mother named Keli Carender, blogging under the name “Liberty Belle,” spread the word about a grass-roots protest she was organizing in Seattle to express outrage over the passage of the trillion-dollar Stimulus Bill (aka, “The American Recovery & Reinvestment Act”; aka, the “Porkulus” Bill; aka, the “Generational Theft Act of 2009″).   She was enraged that such a bill passed Congress and especially without much discussion or opposition by Republicans.  It was the first time she did any kind of political organizing.   She was simply a conservative mother who blogged and never envisioned herself jumping into any political arena.   Amazingly, she organized the event in a few days all on her own by reaching out on the Internet, contacting her local talk radio station, and talking to anyone who would listen.

Also in February, local radio host Leland Conway in Kentucky called on his listeners to send pork rinds to liberal NY Senator Chuck Schumer. Conway’s idea was motivated by Schumer’s arrogant statement that only the “chattering classes” – the middle class – cared about the “teeny, tiny” pork amendments in the Generational Theft Act.  In response to his radio plea, a mountain of 1,500 bags of pork rinds poured into the station and on February 16, they were shipped to Schumer.

On February 18, 500 fed-up taxpayers showed up in Mesa, AZ to protest President Obama’s plans to expand the government’s mortgage entitlement program.  (Think about what happened with Fannie Mae/Freddie Mac).

On February 19, ordinary citizen Amanda Grosserode e-mailed that she was organizing a tax protest in Overland Park, KS the following weekend.  More than 400 people showed up in freezing cold weather to protest Rep. Dennis Moore’s vote for the stimulus bill.  And also on that same day, CNBC’s Rick Santelli issued his now-famous rant over Obama’s plans for mortgage entitlement and the need for a Chicago “Tea Party.”  Santelli accused the Obama administration of “promoting bad behavior” and subsidizing mortgages to people who didn’t deserve them in the first place.   After all, there is no RIGHT in this country to own a home.  But Democrats are in the business of finding new rights and new entitlements.

Santelli gave a voice and even a passion to what the Tea Party movement would become….  a frustration with government and its policies of entitlement and fiscal irresponsibility.  Here are the words of that rant: RICK SANTELLI:  The government is promoting bad behavior…..  You know, the new administration’s big on computers and technology…   How about this, President and new administration?  Why don’t you put up a website to have people vote on the Internet as a referendum to see if we really want to subsidize the losers’ mortgages; or would we like to at least buy cars and buy houses in foreclosure and give them to people that might have a chance to actually prosper down the road, and reward people that could carry the water instead of drink the water?  This is America!  How many of you people want to pay for your neighbor’s mortgage that has an extra bathroom and can’t pay their bills?  Raise your hand.

(Whistling, Cheering.People booing Obama)

SANTELLI:  President Obama, are you listening?

RANDOM TRADER:  How ’bout we all stop paying our mortgage?

SANTELLI:  You know, Cuba used to have mansions and a relatively decent economy. They moved from the individual to the collective. Now, they’re driving ’54 Chevys, which is probably the last great car to come out of Detroit.

KERNEN:  Hey Rick, how about the notion that you can go down to 2% on the mortgage…

SANTELLI:  You could go down to -2%.  And they can’t afford the house.

JOE KERNEN:   So why are they in the house?  Why are we trying to keep them in the house?

SANTELLI:   We’re thinking of having a Chicago Tea Party in July.  All you capitalists that want to show up to Lake Michigan, I’m gonna start organizing.

(Whistling, cheering)

WILBUR ROSS:  Rick, I congratulate you on your new incarnation as a revolutionary leader.

SANTELLI:  Somebody needs one.  I’ll tell you what, if you read our Founding Fathers, people like Benjamin Franklin and Jefferson,… What we’re doing in this country now is making them roll over in their graves.

Perhaps Santelli was referring to a warning by James Madison: “The people of the U.S. owe their Independence and their liberty to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent. Let them exert the same wisdom, in watching against every evil lurking under plausible disguises, and growing up from small beginnings.”

For too long, Americans have not been watching.

Within 10 days of Santelli’s rant, on February 27, the first Tea Party rally was held in Washington, Chicago and other cities across the US.  The Tea Party movement and Tea Party phenomenon had been born.

Lest we forget what the Tea Party stands for and who itself makes up this informal group of grassroots “radicals,” consider how Mark Alexander, of the Patriot Post, summed it up in 2010.  He wrote:

“We are American Patriots, defenders of First Principles and Essential Liberty.

We are Soldiers, Sailors, Airmen, Marines, Coast Guardsmen and public servants standing in harm’s way at home and around the world, who are loyal, first and foremost, to our revered oath to “support and defend” our Constitution.

We are grassroots leaders and local, state and national officeholders who, likewise, honor our sacred oath.

We are mothers, fathers and other family members nurturing the next generation of young Patriots. We are farmers, craftsmen, tradesmen and industrial producers. We are small business owners, service providers and professionals in medicine and law. We are employees and employers. We are in ministry at home and missionaries abroad. We are students and professors at colleges and universities – often standing alone in such institutions for what is good and right.

We are consumers and taxpayers.   We are voters.

We are Patriot sons and daughters from all walks of life, heirs to the blessings of Liberty bequeathed to us at great personal cost by our Patriot forebearers, confirmed in the opinion that it is our duty to God and Country to extend that blessing to our posterity, and avowed upon our sacred honor to that end. We are vigilant, strong, prepared and faithful.

We are not defined by race, creed, ethnicity, religion, wealth, education or political affiliation, but by our devotion to our Creator, and the liberty He has entrusted to us, one and all.”

The Tea Party is not a political party.  It is not organized around a national platform and handed down for its members to follow.  Rather, it’s a bottoms-up, grassroots organization dictated by the concerns of taxpayers and other patriots who hold certain principles as non-negotiable.

“Those principles include, first and foremost, advocating for Essential Liberty, the restoration of constitutional limits on government and the judiciary, and the promotion of free enterprise, national defense, and traditional American values.”

And the Tea Party is definitely here to stay. References:

Michele Malkin, “Tax Day Tea Party Cheat Sheet:  How it All Started, ” April 15, 2009.  Referenced at:

Ed Pilkington, “How the Tea Party Began,” Oct. 5, 2010.  Referenced at:

Santelli’s Rant –

Mark Alexander, “The Tea Party Movement, ” The Patriot Post, June 24, 2010.  Referenced at:

Our Rich English History

 by Diane Rufino, June 24, 2011

Happy Anniversary America !!   This year, 2011, celebrates 218 years since the British signed the Treaty of Paris in 1783, formally abandoning any claims to the United States.

Dennis Prager, a conservative talk show host, gave this advice: “The greatest threat facing America is not Obama or his socialist programs.  The greatest threat, and I’ve felt this my entire life, is that we have not passed on what it means to be an American to this generation.  In fact, we haven’t passed on this message since the end of World War II.”

Mr. Prager is right.  We have taken so much for granted and allowed so much liberty to slip through our hands simply because we have forgotten what it means to be an American.  People all over the world would kill for the freedoms that we take for granted every minute of every day.  They would say “Such audacity Americans have ..  to have so much and to care so little to preserve it.”

What am I talking about?  Take this simple example.  The US Constitution gave Congress the power to regulate commerce among the several states. The reason was to prevent individual states from discriminating against the goods originating from another state and therefore maintain a free flow of goods throughout all the states. A simple grant of power to a “limited” federal government has now led to 41,000 federal regulations alone on a simple hamburger. These regulations stem from at least 200 laws. (as noted in a 1980 US News & World Report).  Just as the hamburger has become to be regulated so heavily, so are each of us living here in the United States being regulated heavily (unless you are an immigrant, and especially if you are an illegal, and even more especially, if you are a criminal illegal immigrant).  And this is by a government that was supposed to be so small that it was never to employ more federal workers than any single state and was supposed to protect those rights to “Life, Liberty, and the Pursuit of Happiness” promised in the Declaration of Independence.

We’ve come a long way since our founding, but unfortunately, it has been a path downward instead of upward…. a slippery slope downward to the level of nations that we fought so hard not to become like.  Our inalienable rights now have “conditions” and limits. Social pressure is responsible for most of that.  Aside from abolishing the great evil of slavery and recognizing that all men indeed are equal, we have moved backwards and not forwards with respect to freedom and liberty vis-a-vis our government.  Individuals are overburdened and over-regulated, and they have become cynical and despondent. And that only makes my point and Mr. Prager’s point stronger – that we have forgotten what it means to be an American.

My question is this:  Why aren’t our schools teaching our children what makes America so unique and special?   What makes America special isn’t because we have open borders or because we are so diverse or because of the Wall of Separation between Church and State.  It is because of our liberties –  how they are grounded and how they are protected.  What makes America so special is not anything our current leaders have done.  On the contrary, it has everything to do with the simplest of documents – our Constitution and Declaration of Independence, our Founding history, and our founding principles. I believe it is the duty of our schools to teach this to our children and to do so correctly and not from a revisionist perspective.  As Mr. Prager wrote in his article, “A Speech Every High School Principal Should Give”:  “We will have failed if any one of you graduates this school and does not consider him or herself inordinately lucky to be alive and to be an American.”

Every morning, school principals all over this country get on the loudspeakers and ask students to stand to recite the Pledge of Allegiance.  I’ve seen teachers sit and ignore the pledge.  I’ve seen students ignore it.  I’ve seen students joke that if the President doesn’t do it why should they.  If students are not able to appreciate why they should stand and repeat the pledge, then the school has immediately failed these students. It has failed to instill the appreciation that every citizen should have for this country and for everything each individual has just for being blessed to stand where they are standing.  Every word of the Pledge honors our history and should be appreciated.

“I pledge allegiance to the flag of the United States of America, and to the republic for which it stands, one nation under God, indivisible, with liberty and justice for all.”   There is so much meaning in this short sentence.

“pledge allegiance” –  to promise not to betray

the flag – the symbol of our country.  It symbolizes our strength and unity. It represents our story.  It represents everything we stand for, including our freedom and liberties.  It represents those extraordinary acts of courage and sacrifice that have been needed over the years to sustain individual liberties. It represents every man and woman who died for our country and represents every instance where our country and our servicemen have come to the aid of people who were oppressed.  Over a million Americans have died in many wars so that she can wave.  It is the freedom here that we enjoy – and often take for granted – that has inspired so many brave Americans over the years to fight for our nation’s preservation and to protect our way of life.  25,000 died in the Revolutionary War, 20,000 died in the War of 1812 against Britain, 623,026 died in the Civil War, 116, 708 died in WWI, 407, 316 died in WWII, 36, 914 died in the Korean War, 58, 169 died in the Vietnam War, and 5,900 have died to date in our War on Terror.  That is almost 1.3 million total. Mothers have lost sons and daughters, men and women have lost their spouses and soul mates, children have lost parents, families have lost brothers, sisters, aunts, and uncles, and communities have lost friends, neighbors, and classmates.

United States of America – Up until the ratification of the Constitution, and perhaps even longer than that, the individual states considered themselves as separate sovereign nations. They united for preservation. They united in order to ” secure the blessings of Liberty” for generations to come.

Republic – The first sound Republic in all history was the one created by the first genuine Constitution, which was adopted by the people (Commonwealth) of Massachusetts in 1780. It was the template for which our US Constitution was based and therefore, the US is the first genuine and soundly-based republic in the world.  Our nation is a republic and the first one established upon a Constitution protecting individual liberty. A “republic” on the other hand is where the general population elects representatives who then are constrained in their representation by the Constitution and other laws.  A republic is a nation ruled by law.  There is a degree of insulation between the people (who might try to rule in a frenzied mob style) and government rule.  A republican form of government has a very different purpose and an entirely different form, or system, of government than a pure democracy.  Its purpose is to control rule-making.  More specifically, its purpose is to control or restrain the majority.  It is designed to protect the minority from oppression by the majority.  It is designed to protect the individual’s (EVERY individual’s) God-given, unalienable rights and the liberties of people in general.  Our particular republican form of government has a separation of power because our Founders understood the inherent weakness and depravity of man.  They knew that people are basically weak, sinful and corruptible, and will pit one men against another other, making it difficult to pass laws and make changes that are fair to everyone.

One Nation – to remind us that we survived a Civil War, which tested the notion of whether any nation, so conceived in liberty, can endure.

“Under God” – to remind us of our religious heritage – the dependence of our people and our Government upon a supernatural being. In fact, The words “under God” were added in 1954 to clearly separate us from what were considered godless communist countries.

“Indivisible” – meaning that we will never again be broken up into individual states.

“with liberty and justice for all” –  Two of the greatest principles that America stands for.

“The establishment of our institutions,” wrote President Monroe, “forms the most important epoch that history hath recorded. They extend unexampled felicity to the whole body of our fellow-citizens, and are the admiration of other nations. To preserve and hand them down in their utmost purity to the remotest ages will require the existence and practice of virtues and talents equal to those which were displayed in acquiring them. It is ardently hoped and confidently believed that these will not be wanting.”   In other words, if we wish to preserve and hand down the institutions that protect our liberty, we must be educated and loyal.

In this era of world-wide social and political change, it serves us well to know the fundamentals of our Constitution which, in times of war and unrest, as well as in peace, has provided the American people with a more enduring and responsive government and a greater degree of prosperity than any other people have ever had.

Our school system teaches our students many important things – math, science, English, literature, languages, for example.  It also spends a lot of time teaching things that serve no other purpose other than to highlight individuality rather than commonality.  Such courses are the ones that focus on race and ethnicity.  The public school focuses too much on diversity rather than on the qualities that unite us as Americans.  Every year, for example, students learn the same exact things for Black History Month.  In fact, for two consecutive years, my daughter was assigned the very same Black History figure to write a report on.  My eldest daughter will graduate from high school after never studying our early history, our Founding Fathers, our Constitution, and Constitutional principles.  Such courses and such an overall public school curriculum undermines our nation’s motto – “E Pluribus Unum,” which means “from many, one.”  Our founding history is something that unites.  It teaches us about the country that we all share equally. It teaches about American values.

The story of America is one of liberty.  It is a beautiful story.  it is one which represents the culmination of man’s search for protected freedom – for the “invaluable blessings of liberty” and the “inalienable rights of mankind.”  This search of course ended with the Declaration of Independence and the Constitution, which were written by great men with brilliant minds who were determined to secure those blessings of liberty “for generations to come and millions yet unborn.”  [Anti-Federalist Papers, Brutus I].  So much of our future is tied to our understanding and respect of our past.

While the age-old search for liberty may have culminated with the birth of the United States, the Declaration of Independence and the Constitution weren’t the first of their kind.  Enshrined in these documents are the themes from some of the greatest charters for liberty – the Magna Carta and the English Bill of Rights of 1689.  The Magna Carta was a product of the Medieval Era, which was a very exciting time in English History.  Feudal laws, and then the Magna Carta itself, formed much of the basis of English law, called the English Common Law.  By the seventeenth century, England began to expand.  It was the first great age of the British empire and was characterized by commercial and colonial expansion in the West and the East, including the New World. There was also a great struggle for power at home between the Crown and Parliament.  It was in against this backdrop that such important documents as the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the English Bill of Rights were enacted by Parliament.  As the Common Law continued to evolve during this century, enriched by judicial decisions and constitutional enactments, the fundamental principles which they embodied were added to the Common Law heritage that “Englishmen” embraced in the colonies.

Just 560 years or so before Thomas Jefferson sat down to draft the Declaration of Independence, a group of barons assembled at a place called Runnymede, England (close to the place where Windsor Castle would later be built), to confront their despotic ruler, King John. These barons were owners or “lords” of northern estates in England.  King John had lost a lot of money the previous year in a war against King Philip to reclaim French lands he had inherited. He then attempted to rebuild his coffers by demanding that all barons who had not supported or joined his war with Philip to pay a fee (called “scutage” – which is a fee paid in lieu of military service).  The barons demanded that King John respect the Coronation Oath given by King Henry I in 1100 which promised to limit the king’s ability to obtain funds by taxation. But King John refused to honor this Oath and continued to demand scutage. The barons soon became rebellious and demanded that the king acknowledge a stipulation of their rights. The rights were listed in written form and initially referred to as the “Articles of the Barons.”  King John and the barons worked together to make some changes and final provisions, and on June 19, 1215, he signed the document and affixed his Seal.  This document then became known as the Magna Carta, or “Great Charter.”  (King John later renounced the charter, claiming that he was under duress when he signed it, but his son later reinstituted it). The Magna Carta introduced the Rule of Law.  It became a “guideline” (although it was considered the “Supreme Law” of the land at the time) for how the King was to regard his subjects.  The primary purpose of the Magna Carta was to force King John to recognize the supremacy of ancient liberties, to limit his ability to raise funds, and to reassert the principle of “due process.”  Of great significance to future generations was a minor wording change with respect to whom the great document was intended to protect. The term “any baron” was changed to “any freeman.”  Over time, and especially as the feudal era ended, it justified the application of the Charter’s provisions to a greater part of the population. While freemen were a minority in 13th-century England, the term would eventually include all English persons, just as “We the People” would come to apply to all Americans.

Winston Churchill stated in 1956: “Here is a law which is above the King and which even he must not break. This reaffirmation of a supreme law and its expression in a general charter is the great work of Magna Carta; and this alone justifies the respect in which men have held it.”

The author, Rudyard Kipling wrote:

“At Runnymeade, at Runnymeade                                                 Your rights were won at Runnymeade !                                                 No freeman shall be fined or bound,                                                 Or dispossessed of freehold ground,                                                 Except by lawful judgment found,                                                 And passed upon him by his peers.                                                 Forget not, after all these years,                                                 The Charter signed at Runnymeade.

To understand the Magna Carta, one must realize that England, at the time, was a feudal society.  In a feudal society, the king’s barons held their lands `in fee’ (feudum) from the king.  In return, the baron would declare an oath of loyalty and obedience, and would be obliged to provide him with a certain number of knights whenever they were needed for military service.  Since the land was held “on condition” to the king, the king could also impose additional rights, demands, or exactions (such as what would be required if there were no male heirs to fight, extra taxes, selling daughters in marriage, assuming guardianship of the land and confiscation of profits, and even demanding forfeiture).  The Magna Carta, therefore, through its 63 clauses, listed the barons’ rights, demanded limitations on the king’s abuse of power with respect to the feudum, and demanded rights of redress.  And though many of these clauses later became obsolete, were amended or deleted, the Charter nonetheless became the basis for English Common Law which went on to become the basis for American law. Some of the most important provisions were those of the right of habeas corpus (the due process right to challenge one’s detention or imprisonment) and the pronouncement that the Charter was to be the supreme law of the land… one that could not be one that could not be altered by the king or any other ruler (could not be altered by executive mandate or legislative acts).  These provisions were later incorporated into the US Constitution in the Fifth Amendment (Due Process clause) and in Article VI (the Supremacy Clause).

Why was the Magna Carta so significant in 1215?   That answer takes us to the Battle of Hastings in 1066 where King William (William the Conqueror) of Normandy (northern France) defeated Anglo-Saxon King Harold II for the throne of England. The result was that the invading Normans and their descendants replaced the Anglo-Saxons as the ruling class of England and stripped them of their rights and privileges.  Prior to the Norman Conquest, the Anglo-Saxons enjoyed certain freedoms.  Kings weren’t oppressive authoritarian figures. In fact, they often shared power with certain government officials called “Earls.”  But that all changed in 1066 when King Edward (Edward the Confessor) died without children – without an heir. The throne passed to an English Earl named Harold II, whose only claim was that he was friends with Edward and his wife.  When William II, Duke of Normandy, found out, he laid claim as the rightful heir to the throne. He was, in fact, Edward’s cousin. When Harold II refused to give up his claim to the throne, William took it by force.  Under the new ruler, government would become very different in England. The people lost their voice. The “king” was to be the principle authority figure and serve as the collective executive, judicial, and legislative branches of the government.  It was the Magna Carta which reasserted certain fundamental rights of the people and began to define the role of government with respect to the people.

The Petition of Right was passed by the English Parliament in May of 1628 and recognized by King Charles I the following month. It was enacted just prior to the English Civil War. The document is extremely important because it sets out specific liberties of the individual that the king is prohibited from infringing.  The Petition’s most notable provisions are those that state that taxes can be levied only by Parliament, that martial law may not be imposed in time of peace, and that prisoners must be able to challenge the legitimacy of their detentions through the writ of habeas corpus. Note that the ban on quartering of troops was a very sore issue with the colonists and was later addressed in the US Constitution with the Third Amendment.  The Habeas Corpus Act of 1679, passed by Parliament under the reign of Charles II, was a response to great public outcry against abusive and unlawful detention of persons. The Act provided that persons unlawfully detained cannot be ordered to be prosecuted before a court of law and reinforced the important individual right addressed by the Magna Carta.  Again, the right to be free from unlawful detention or imprisonment is found in the Fifth Amendment to our US Constitution.

The English Bill of Rights was the next evolutionary document.  Signed into law by King William III in 1689, it marked the next fundamental milestone in the progression of English society from a nation of subjects under the complete authority of a monarch to a nation of free citizens with inalienable rights.  Angered by a long series of abuses of liberty by King James II during his reign from 1685 to 1689, members of the English nobility (known as the “Immortal Seven”) sent a formal request or “invitation” to Holland’s William of Orange and his wife Mary, daughter of James II, to invade England and free them of their tyrant.  English nobility promised to support the invasion and did so, making it virtually a bloodless incursion.  William landed at in southwest England on November 5, 1688 with a large Dutch army and as he stepped ashore, he proclaimed: “the liberties of England and the Protestant religion I will maintain.”  Some of the abuses that King James II was guilty of include: suspending acts of Parliament, then disbanding Parliament (throwing the Great Seal into the River Thames), ignoring the Magna Carta and otherwise collecting taxes not authorized, interfering with popular elections, attempting to impose Catholicism on a staunchly Protestant nation (by persecuting Protestant officials and replacing them with Anglican ones), and repeatedly placing himself above duly enacted laws.

Shortly after William of Orange invaded England and ousted James, in January of 1689, Parliament became functional again and a Convention was then assembled in London to determine the succession of the English Crown.  It was at this Convention that members of Parliament drafted a Declaration of Rights and offered the throne of England jointly to William and Mary, who thereafter ruled jointly as King William III and Queen Mary. This Declaration was adapted to create a Bill of Rights – the English Bill of Rights – and was signed into law.  From that moment forward, it altered the balance of power between the sovereign and his subjects.

The Magna Carta and English Bill of Rights compelled limitations on government  and therefore were monumental in reasserting the rights of the people with respect to their government.  With each assault on the rights and dignities of citizens, and especially landowners, the English asserted their rights. And each time tyrant kings attempted to disregard the Magna Carta and prompted the English to re-assert their rights, they won greater and greater protection of their liberties. Fast forward to the American colonies. They too would have a tyrant king trample on their rights and dignities and they too would have to re-assert them.  King George III would trample on their English rights just as King James II had done only 100 years earlier.

As we all know, the Pilgrims landed on Plymouth Rock, a granite boulder at Plymouth Harbor (now about the size of a cat) in 1620. They left England so they could worship freely and establish a church of their choosing. This period of time is particularly noteworthy because although the Magna Carta began to lose its significance in the centuries following 1215, it was resurrected by Lord Coke in the early 17th century.  As Coke proclaimed: “Even kings must comply to common law.”  Lord Coke’s view of the law was particularly relevant to the American experience for it was during this period that the charters for the colonies were written. Each included the guarantee that those sailing for the New World and their heirs would have “all the rights and immunities of free and natural subjects.”  Understanding theses documents, we begin to see the makings of America.

The colonists, even though they left Britain to settle on new shores, they did so based on Charters granted by their mother country.  They considered themselves proud British subjects. The British mocked them and called them “Americans” which was a derogatory term, but nonetheless, the colonists, and even our Founding Fathers, considered themselves proud British subjects.  They came to America’s shores with the same protections of liberty that those in England enjoyed. In fact, when our founding Englishmen came to the “New World” to establish colonies, they brought with them charters guaranteeing that they and their heirs would “have and enjoy all liberties and immunities of free and natural subjects.”  As our forefathers developed legal codes for the colonies, many incorporated liberties guaranteed by Magna Carta and the 1689 English Bill of Rights directly into their own statutes.

At some point, Great Britain stopped seeing the colonists the same way the colonists saw themselves, and that began shortly after the French-Indian War. Britain had just waged that costly war against the French on behalf of the colonists (and to protect its own interests as well) and in order to offset the war debt, it passed a series of burdensome statutes on the colonies:  The Sugar Act (1764), the Currency Act (1764), The Stamp Act (1765), the Quartering Act (1765), the Declaratory Act (1766), the Townshend Revenue Acts (1767), the Tea Act (1773), the Coercive Acts (aka, the Intolerable Acts (1774), and more Quartering Acts (1774).

In 1764, Parliament passed the Sugar Act which increased the duties on imported sugar, textiles, coffee, wines, and indigo (blue dye).  The Currency Act prohibited the colonists from issuing any legal tender paper money.  (This act was potentially disastrous because it almost destabilized the economies of both the more industrialized North and the agricultural South).  A year later, Parliament passed the Quartering Act, which required colonists to house British troops and supply them with food, and the Stamp Act, which imposed the first direct tax on the American colonies. The Stamp Act marked the first time in the 150-year history of the colonies that Americans were required to pay tax not to their own local legislatures in America, but directly to England.  Under the Stamp Act, all printed materials, including; newspapers, pamphlets, bills, legal documents, licenses, insurance policies, legal writs, almanacs, and even playing cards would have to carry a stamp showing that required taxes had been paid. Most legal transactions in the colonies ceased because nearly all of the colonists refused to use the stamps on such material. They also objected to the Act’s provision that those who disobeyed could be tried in admiralty courts without a jury of their peers. Lord Coke’s influence on Americans showed clearly when the Massachusetts Assembly reacted by declaring the Stamp Act “against the Magna Carta and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void.”  [The National Archives].  In fact, the seal adopted by Massachusetts on the eve of the Revolution summed up the sentiment of its people; it showed a militiaman with sword in one hand and Magna Carta in the other. The colonists would have their rights and they would fight for them.

The British were serious about the Stamp Act.  The British appointed colonial businessmen to collect the taxes on behalf of England, but most refused to do the job out of fear of a growing opposition. In New York City, violence broke out as a mob burned the royal governor in effigy.  All over the colonies, angry mobs shouted: “Liberty, Property, and NO STAMPS !”

In October 1965, the Stamp Act Congress convened in New York City, with representatives from nine of the colonies – NY, NJ, Pennsylvania, Connecticut, Massachusetts, Rhode Island, Delaware, Maryland, and South Carolina. The Congress prepared a resolution to be sent to King George III and the English Parliament. Specifically, the conclusions of this Congress were embodied in four separate papers (or letters) which were sent out accordingly:  (1) A Declaration of Rights and Grievances; (2) a Petition to King George; (3) a Memorial and Petition to the House of Lords; and (4) a Petition to the House of Commons.  The first document was the most important. It proclaimed that in return for their allegiance to the Crown, the colonists were granted “the undoubted rights of Englishmen, that no taxes be imposed on them but with their own consent” and asked for the repeal of the Stamp Act and the Acts of 1764. The Declaration emphasized that this right of representation is affirmed as “an ancient and inalienable right  that cannot be infringed.”  Only colonial legislatures can tax colonial residents.  [Avery and Abbatt, A History of the United States and its People: From Their Earliest Records to the Present Time (Vol. 5), pp. 63-64]. To defend their objections, they turned to a defense argument  that Lord Coke used in 1609-1610 – ‘Superiority of the common law over acts of Parliament.’  In this argument, Coke claimed that “when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such an act void.”  Because the Stamp Act offended the concept of consensual taxation, the colonists believed it to be invalid.

In March 1766, Ben Franklin and others appeared before Parliament to argue the American case. There was much debate and Franklin warned of a likely revolution in the colonies if the Stamp Act was enforced by the British military, which had already sought authorization to begin quartering and enforcing the Act. (The colonies refused to give the authorization). Parliament then rescinded the bill.

But while the colonists enjoyed a temporary victory, the damage was done. The political climate was changing. The relationship with Britain had become too strained.  As John Adams would later write to Thomas Jefferson, “The Revolution was in the minds of the people, and this was effected, from 1760 to 1775, in the course of 15 years before a drop of blood was shed at Lexington.”   [National Archives]

On the same day that the Stamp Act was repealed, Parliament passed the Declaratory Act stating that it had total power to legislate any laws governing the colonies in all cases whatsoever.  In August, violence broke out in NY between British soldiers and armed colonists as a result of the refusal of New York colonists to comply with the Quartering Act.  In retaliation, King George suspended the NY legislature.

In 1767, Parliament passed the Townshend Revenue Acts, which imposed a new series of taxes on the colonists – on imports of such products as paper, tea, glass, lead and paints. Several months later, Samuel Adams began to circulate a letter calling for colonists to oppose taxation without representation and to begin to unite.  One by one, the states began to endorse this letter. They began to urge their citizens to arm themselves.  The more Parliament tried to raise revenue and suppress the growing unrest, the more the colonists demanded the charter rights they had brought with them a century and a half earlier.

On March 5, 1770, after a mob harassed British soldiers in Boston, the soldiers opened fire on them. This was known as the Boston Massacre and caused strong tensions with Britain.  Later that year, King George agreed to repeal the Townshend Acts on all items except for tea and he would not renew the Quartering Act.

In May 10, 1773,  Parliament passed the Tea Act, which placed a heavy import tax on tea and allowed the India Tea Company to have a monopoly to supply the colonies.  Several months later, three ships loaded with tea arrived in Boston Harbor. A large group of colonists in Boston got together and decided they would demand that the Royal Governor of Massachusetts send the ship back to England but when he got wind of this, he ordered the ships to stay tight and not to leave until the tea taxes were paid.  On December 16, colonists disguised themselves as Mohawk Indians, boarded the ships, and dumped all 342 containers of tea into the harbor. That was the infamous Boston Tea Party.

In retaliation for the destruction of the tea, an irate Parliament passed the first of a series of Coercive Acts (called “Intolerable Acts” by the colonists). The Boston Port Bill shut down all commercial shipping in Boston Harbor until Massachusetts paid the taxes owed on the tea dumped in the harbor and also reimbursed the East India Company for the loss of the tea. In May 1774, General Thomas Gage, commander of all British military forces in the colonies, arrived in Boston, became the new Royal Governor, ended colonial self-rule, and put Massachusetts under military rule. Britain sent more and more troops to subjugate the colonies and a new Quartering Act was enacted by Parliament.  At this same time, colonists began to demand an inter-colonial Congress to unite the colonies so they could effectively put pressure on Britain to repeal the Coercive Acts.

From September 5 -24, 1774, the First Continental Congress met in Philadelphia.  There were 56 delegates, representing every colony except Georgia. Attendants included Patrick Henry, George Washington, Samuel Adams, and John Hancock.  The Continental Congress immediately declared its opposition to the Coercive Acts, declaring that they would NOT be obeyed.  Furthermore, it asserted the rights of all colonists to “Life, Liberty, and Property.”  It authorized the formation of local militia, announced a boycott of English imports, placed an embargo on exports to Britain, and discontinued the slave trade.

On March 23, 1775,  Patrick Henry delivered a speech at the Virginia Convention against British rule, stating:

“I have but one lamp by which my feet are guided, and that is the lamp of experience. I know of no way of judging of the future but by the past….  Let us not deceive ourselves, sir. These (the acts imposed by King George and the British Parliament) are the implements of war and subjugation; the last arguments to which kings resort….  we have done everything that could be done to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne!  In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free– if we mean to preserve inviolate those inestimable privileges for which we have been so long contending–if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained–we must fight!   When shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?   Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery?  I know not what course others may take; but as for me, give me liberty or give me death!”

The following month, General Gage (aka, Governor of Massachusetts) was ordered by Britain to enforce the Coercive Acts and to suppress all “open rebellion” among the colonists using any force necessary.  On April 18, General Gage ordered 700 British soldiers to Concord to destroy the colonists’ weapons depot. That night, Paul Revere and William Dawes rode from Boston to warn colonists. Revere reached Lexington about midnight and warned Sam Adams and John Hancock who were hiding out there.  “One if by land and two if by sea.”  By dawn the following day, about 70 armed Massachusetts militiamen stood face-to-face to the advancing British guard on Lexington Green. An unauthorized shot was fired – “the shot heard around the world” – and thus began the American Revolution.

“The Revolution was effected before the War commenced, said John Adams. “The Revolution was in the minds and hearts of the people…..     This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.”

On May 10, 1775, the Second Continental Congress convened in Philadelphia, and John Hancock was elected as its president. On June 15, the Congress unanimously voted to appoint George Washington as General and Commander-in-Chief of the new Continental Army.

We were now in a war for our independence, for the rights of man and the right to govern as we saw fit.  The series of oppressive acts of Parliament and the refusal of King George to stick up for the rights of the colonists had taken their toll. The once proud British subjects now saw themselves as proud Americans. In order to encourage the fight for separation from Britain, the authors of our founding documents began making the case for independence. On January 9, 1776, Thomas Paine’s “Common Sense” was published in Philadelphia. The 50 page pamphlet was highly critical of King George III and attacked the concept of allegiance to a Monarchy.  Common Sense became an instant best-seller in America.  Paine wrote:

        “Some writers have so confounded society with government, as to leave little or no distinction between them; whereas they are not only different, but have different origins. Society is produced by our wants, and government by our wickedness; the former promotes our happiness positively by uniting our affections, the latter negatively by restraining our vices. The one encourages intercourse, the other creates distinctions. The first is a patron, the last a punisher. Society in every state is a blessing, but government even in its best state is but a necessary evil in its worst state an intolerable one…          In order to gain a clear and just idea of the design and end of government, let us suppose a small number of persons settled in some sequestered part of the earth, unconnected with the rest, they will then represent the first peopling of any country, or of the world. In this state of natural liberty, society will be their first thought. A thousand motives will excite them thereto, the strength of one man is so unequal to his wants, and his mind so unfitted for perpetual solitude, that he is soon obliged to seek assistance and relief of another, who in his turn requires the same. Four or five united would be able to raise a tolerable dwelling in the midst of a wilderness, but one man might labor out the common period of life without accomplishing any thing; when he had felled his timber he could not remove it, nor erect it after it was removed; hunger in the mean time would urge him from his work, and every different want call him a different way. Disease, nay even misfortune would be death, for though neither might be mortal, yet either would disable him from living, and reduce him to a state in which he might rather be said to perish than to die.         Thus necessity, like a gravitating power, would soon form our newly arrived emigrants into society, the reciprocal blessings of which, would supersede, and render the obligations of law and government unnecessary while they remained perfectly just to each other; but as nothing but heaven is impregnable to vice, it will unavoidably happen, that in proportion as they surmount the first difficulties of emigration, which bound them together in a common cause, they will begin to relax in their duty and attachment to each other; and this remissness, will point out the necessity, of establishing some form of government to supply the defect of moral virtue….         Here then is the origin and rise of government; namely, a mode rendered necessary by the inability of moral virtue to govern the world; here too is the design and end of government, viz., freedom and security. And however our eyes may be dazzled with snow, or our ears deceived by sound; however prejudice may warp our wills, or interest darken our understanding, the simple voice of nature and of reason will say, it is right.  I draw my idea of the form of government from a principle in nature, which no art can overturn, viz., that the more simple any thing is, the less liable it is to be disordered, and the easier repaired when disordered..  (With this, Paine criticizes allegiance to the Crown and points out faults with the English Constitution, which is uncodified; that is, it isn’t embodied in one document but rather encompasses several documents written over many years)         Britain is the parent country, say some. Then the more shame upon her conduct. Even brutes do not devour their young; nor savages make war upon their families; wherefore the assertion, if true, turns to her reproach; but it happens not to be true, or only partly so, and the phrase parent or mother country hath been jesuitically adopted by the king and his parasites, with a low papistical design of gaining an unfair bias on the credulous weakness of our minds. Europe, and not England, is the parent country of America. This new world hath been the asylum for the persecuted lovers off civil and religious liberty from every Part of Europe. Hither have they fled, not from the tender embraces of the mother, but from the cruelty of the monster; and it is so far true of England, that the same tyranny which drove the first emigrants from home pursues their descendants still.”         [Paine then urges for a “Continental Charter” or “Charter of the United States”]   “I observe that a charter is to be understood as a bond of solemn obligation, which the whole enters into, to support the right of every separate part, whether of religion, personal freedom, or property, A firm bargain and a right reckoning make long friends.         A government of our own is our natural right: And when a man seriously reflects on the precariousness of human affairs, he will become convinced, that it is in finitely wiser and safer, to form a constitution of our own in a cool deliberate manner….  We have every opportunity and every encouragement before us, to form the noblest, purest constitution on the face of the earth. We have it in our power to begin the world over again. A situation, similar to the present, hath not happened since the days of Noah until now. The birthday of a new world is at hand, and a race of men perhaps as numerous as all Europe contains, are to receive their portion of freedom from the event of a few months…… America shall make a stand, not for herself alone, but for the world.”     [Common Sense. (John Locke’s influence on Thomas Paine is very clear in Common Sense, especially with regards to the Natural rights to personal freedom and property and to the criticisms of the Monarchy)]

Also in 1776, William Pitt addressed the House of Commons in England and tried to explain the reason for the colonists’ “seditious spirit.”  He stated that in his opinion, Great Britain had no right to lay a tax on the colonies without their consent.  “The Americans,” he said, “are the subjects of this kingdom and equally entitled with yourselves to all the natural rights of mankind and the peculiar privileges of Englishmen – just as they are equally bound by its laws… The Americans are the sons not the bastards of England.”   [Avery and Abbatt, A History of the United States and its People: From Their Earliest Records to the Present Time (Vol. 5), pg. 70 ]

On March 12, 1776, North Carolina became the first state to make a formal recommendation that the states declare their independence from Great Britain. In ratifying the Halifax Resolves, the fourth provincial congress of North Carolina authorized her delegates to the Continental Congress to vote for independence (should a formal resolution be introduced, that is. The Halifax Resolves themselves fell short of actually authorizing NC delegates to introduce such as resolution of independence).

Just as a massive British war fleet arrived in New York Harbor, consisting of 30 battleships with 1200 cannon, 30,000 soldiers, 10,000 sailors, and 300 supply ships, Richard Henry Lee, a Virginia delegate to the Second Continental Congress, presented a formal resolution to the body  on June 7 calling for a declaration of independence from Britain. His resolution was simply written: “(1) Resolved, that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved; (2) That it is expedient forthwith to take the most effectual measures for forming foreign Alliances; and (3) That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.”

After introducing his resolution, Lee followed up with one of the most stirring and eloquent speeches ever delivered, either by himself or any other gentleman on the floor of Congress when he stated: “Why then, sir, why do we longer delay? Why still deliberate? Let this happy day give birth to an American Republic. Let her arise, not to devastate and to conquer, but to reestablish the reign of peace and of law. The eyes of Europe are fixed upon us: she demands of us a living example of freedom, that may exhibit a contrast in the felicity of the citizen to the ever increasing tyranny which desolates her polluted shores. She invites us to prepare an asylum, where the unhappy may find solace, and the persecuted repose….”.  [Scribe, “Richard Henry Lee…”]

On June 11, 1776, in response to the Lee Resolution, Congress appointed three concurrent committees:  one to draft a Declaration of Independence, a second to draw up a plan to help form foreign alliances, and a third to propose a plan of confederation. Lee was appointed to the committee to draft a Declaration of Independence but he was called home to Virginia because his wife had fallen ill.  His place was taken by his young protégé, Thomas Jefferson.

It is said that the task of drafting the Declaration should have fallen to Benjamin Franklin as the elder, more experienced statesman, but he was in poor health and he didn’t feel quite up to the task.  The task should then have fallen to John Adams, a brilliant and passionate writer, but he urged Thomas Jefferson to write it in his place.  Jefferson refused to accept until Adams begrudgingly pleaded with him: “You are 10 times the writer I am.”  Plus, Jefferson had just written “A Summary View of the Rights of British America” two years earlier (1774), which embraced his personal theory about self-governance and the rights of people who established colonies in new lands. It was written in hand-written form and was intended by Jefferson to be used as a set of instructions for the Virginia delegates to the first Continental Congress. Notice how he referred to America as “British America.”  In his Summary View, he described the usurpations of power and deviations from law committed by King George III and Parliament.  Jefferson was not present when the Virginia House read and addressed his notes, but his friends had his instructions published in pamphlet form, which eventually was circulated in London, as well as in Philadelphia and New York.  It was this work that helped to establish Jefferson, who otherwise was a poor speaker and orator, as a skillful, if radical, political writer.

In preparing to write the Declaration of Independence, our Charter of Individual Freedom, Jefferson, Adams, and Franklin searched for a historical precedent for asserting the people’s rightful liberties as against King George III and the British Parliament. They found it in the Magna Carta.  Most of the Magna Carta’s clauses were lists of long-standing, grievances against the King, and in addressing such grievances, the Charter became the basis for English Common Law and a guideline for how the King should regard his subjects. The violations of English Common Law in the American Colonies by King George provided Jefferson with ample argument in writing his declaration of independence from the monarchy.  Additionally, when Jefferson sought to explain the reason for separating from England because of a long series of intolerable abuses by a tyrant king, he looked to the English Bill of Rights of 1689 for inspiration.

And so Jefferson, along with suggestions from Adams, and eloquence from Franklin, went on to write our most brilliant Declaration of Independence:

“When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

            We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

  • He has refused He has refused his Assent to Laws, the most wholesome and necessary for the public good.
  • He has……  (continued list of grievances against King George III)

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

            Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

…….We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

After acknowledging that freedom and liberty are based on “self-evident truths, that governments are instituted among men and derive their powers from them, and that people have the right to abolish their government when it becomes destructive of its ends, Jefferson then went on in the Declaration of Independence to offer support for the colonies’ claim of separation.  The Declaration set out a list of grievances against King George in order to justify to Great Britain and before the rest of the world why the colonies were breaking their ties with the mother country.  Such grievances included:

  • He has refused his assent to laws, the most wholesome and necessary for the public good.
  • For taking away our charters, for abolishing our most valuable Laws, and altering fundamentally the  forms of our governments.
  • For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
  • For imposing taxes on us without our consent:
  • He has erected a multitude of new offices, and sent hither swarms of officers to harass our people
  • He has made judges dependent on his will alone for the tenure of their offices
  • For depriving us in many cases, of the benefit of trial by jury.

Jefferson wrote:  “In every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.”  For two years, Jefferson had wanted to label King George as a tyrant.  In his Summary View of the Rights of British America, he reminded Virginia’s delegates to the first Continental Congress how the colonists had repeatedly sought redress from the King.  “We were asking for rights, not favours !”  He instructed delegates that “our ancestors, before their emigration to America, were the free inhabitants of the British dominions in Europe, and possessed a right which nature has given to all men, of departing from the country in which chance, not choice, has placed them, on a quest for new habitations, and once there, establishing new societies, under such laws and regulations as to them shall seem most likely to promote.”   Jefferson believed that “British Americans” were sovereigns (from John Locke).  Whereby the colonists were once “subjects of the king,” once King George denied them the rights of Englishmen, they became independent sovereigns who became “citizens of their respective states.” (some sovereignty transferring from the individual to the collective body).  Note that for the very first time in recorded history, individuals were being recognized as being the holders of sovereign power and not rulers or governments.

56 men signed the Declaration of Independence. The first, largest, and most famous signature is that of John Hancock, President of the Continental Congress.  As he stated after signing his signature: “There, I guess King George will be able to read that.”  The youngest signer was Edward Rutledge of South Carolina, at age 26. Benjamin Franklin, at age 70, was the oldest. Two future presidents signed the document: John Adams and Thomas Jefferson.  Seven signers of the Declaration would go on to meet in Philadelphia in 1787 to help draft the Constitution –  Benjamin Franklin, James Wilson, Robert Morris, and George Clymer (all of Pennsylvania), Roger Sherman (of Connecticut), and Elbridge Gerry of Massachusetts.

The finished document was presented to the Second Continental Congress on June 28th. Thomas Jefferson, being a poor speaker, did not present the Declaration.  It was read to the Congress.  In general, it impressed the Assembly, but there were some reservations. The more eloquent Adams vigorously defended the work, which was finally adopted on July 2nd. That evening Adams wrote his wife Abigail a letter expressing  his thoughts on the new declaration, stating: “The second day of July 1776 will be the most memorable epoch in the history of America. I am apt to believe it will be celebrated by succeeding generations as the great anniversary festival.”

[Here is an interesting bit of historical trivia:  John Adams and Thomas Jefferson died on the same day – July 4, 1826. Jefferson, at his home in Virginia, passed away just a few hours before Adams did, at his home in Massachusetts.  Both of these great architects of the document that so profoundly helped to give birth to this our new Nation died 50 years to the day from the birth of the country they founded.]

[Also note that Richard Henry Lee was elected to the Constitutional Convention in Philadelphia in 1787, but he refused to attend.  He had been aware of Madison’s plans to draft a new Constitution (rather than fix the Articles of Confederation, as was the reason given for the Convention) but he was unconvinced that a new Constitution was needed to structure a more effective government.  In Lee’s words: “To say that a bad government must be established for fear of anarchy is really saying that we should kill ourselves for fear of dying. ”  After the new Constitution was drafted, Lee fought against its ratification. He believed the new Constitution called for a strong central government at the expense of strong individual States.  He feared it would weaken states’ rights and powers.  He also distrusted the document because it lacked a Bill of Rights.  He felt that the combination of these factors – the creation of a strong central government which would have the power to do what it likes against individuals, without any form of guaranteed Rights (Bill of Rights) for its citizens and without strong States to protect them – would eventually put them back in the hands of a tyrant.  In fact, Lee published a series of articles entitled “Letters from the Federal Farmer,” which were part of the Anti-Federalist Papers.  The Anti-Federalist Papers were a series of letters, essays, and articles which criticized the proposed Constitution drafted in Philadelphia in 1787. They elaborated in detail on its perceived faults and inadequacies. They “Letters from the Federal Farmer” were published in New York in the ‘Poughkeepsie Country Journal’ from November 1787 through January 1788. The first five of these articles were also republished as a pamphlet in New York and circulated widely. In addition to this pamphlet, in 1788 Lee published an additional thirteen “Letters from the Federal Farmer” which went into even more detail.  It was in response to the Anti-Federalist Papers that James Madison, Alexander Hamilton, and lawyer John Jay wrote the Federalist Papers were written, and it is with the dialogue between the two that we are able today to understand how our Founders explained the Constitution and its purpose].

The Declaration of Independence is our nation’s most cherished symbol of liberty and Jefferson’s most enduring legacy.  Drafted in simple terms, yet with magnificent eloquence, Jefferson expressed the convictions in the minds and hearts of the American people. The political philosophy of the Declaration was not new; as explained earlier, its ideals of individual liberty had already been embraced by England’s treasured documents. Its ideals of individual liberty were also embraced on a more fundamental level, as articulated by the ancient Roman lawyer and statesman, Marcus Tullius Cicero (106-43 B.C.) and then by English philosopher, John Locke (1632-1704).  This was the concept of Natural Law and the acknowledgement that all men are endowed with certain fundamental rights from our Creator, which are essential to our humanity and morality, and to our ordered and purposeful existence.  When Jefferson wrote that freedom and liberty are based on “self-evident truths,” he was precisely referring to Natural Law.

What is Natural Law?  Well, one day Cicero went walking and was trying to imagine what an ideal Rome would be like.  It would have to be ruled by virtuous men, he reasoned.  How would it be governed?  As the foremost lawyer of his day, he was concerned with law.  He wondered where laws came from.  He came to conclude that law, that which distinguishes good from bad and which discourages and punishes the latter, did not originate from man’s mind alone.  That is, law was not a matter of written statutes but was a matter deeply and fundamentally ingrained in the human spirit.  Cicero reasoned as follows:

1).  There is an order to the universe:  Creator – Universe – People – Governments.  There is a Creator who created the universe then created people. People, in turn, form into communities, and in order to keep their communities ordered, they establish local governments.  Finally, local governments give rise to central governments.

2).  Humans, like the Earth and the universe itself, were created by a higher power (a Creator; a God)

3).  This higher power which created the universe also endowed humans with a bit of its own divinity (that is, He gave us the powers of speech, intelligent thought, reason, and wisdom).

4).  As a result of this “spark of divinity,” humans are and should be (forever) linked to their Creator and should honor this relationship.

5). Because humans share reason with this higher power, and because this higher power is presumed to be benevolent, it follows that humans, when employing reason correctly, will also be benevolent.

6).  Reason and benevolence (termed “right reason”) is therefore the foundation of law.  When this is applied in a society, it is JUSTICE.

7).  Natural Law is timeless;  It is valid for all nations for all times.

8).  It operates best when men are virtuous and honorable.  It fails when men are greedy and depraved.

In other words, Natural Law, the bedrock principle of our founding documents, states that our rights come from God and not from any government.  John Locke took the concept of Natural Law one step further and applied it to government.  According to Locke, people (not rulers or governments) are sovereign.  Individuals have sovereign rights which no government can take away.  As such, government is morally obliged to serve people, namely by protecting life, liberty, and property, and to do so with limited powers and applying the principle of checks and balances so as to be sure to government remained honest and focused or beholden to its goals. This is the bedrock principle of Locke’s view of government.  He explained that natural law tradition could be observed with the ancient Jews and that rulers, when properly constrained, would legitimately serve justly because there are moral laws that apply to everyone.

As Locke wrote in the two volumes of his Treatise on Government (1689 and 1690), private property is absolutely essential for liberty. He referred not only to real property but also to intellectual property. “Every man has a property in his own person. This no body has any right to but himself. The labour of his body, and the work of his hands, we may say, are properly his,” he wrote.  Locke believed people legitimately turn common property into private property by mixing their labor with it, their intellect, their personality, their ambition, their business skills (and other intangible human qualities) and improving it.  In other words, he believed that property is a series of transformations.  Man has a property right in himself and his skills which is then transformed into money or bartering power, which is then eventually transformed into private property (real and chattel).

Luckily, Jefferson, and our other Founders, were extremely well-read and well-versed in the philosophies explaining government and individual liberty. 

Thomas Jefferson completed his draft of the Declaration of Independence in just one day.  Only seventeen days later, on June 28, Jefferson’s document was presented to the Congress, with a few changes made by Adams and Franklin. On July 2, twelve of thirteen colonial delegations voted to support of Lee’s resolution for independence – with NY abstaining. On July 4, the Congress formally endorsed Jefferson’s Declaration and copies were then sent to all of the colonies.

The actual signing of the Declaration of Independence occurred on August 2, when 56 members of Congress placed their names on the historic document. They signed this Declaration even though we were still at War with Britain and unlikely to win. They signed this document even though they knew that if the war for independence was not won, they could be tried for treason by England and executed.

56 delegates signed the document which would lay the foundation for our new nation.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”  The Declaration of Independence is the first national document in history acknowledging that fundamental rights are endowed upon man from a Creator.  America’s independence was not only of worldwide significance because a new nation was founded on the shores of the Atlantic, in the New World, but because a new nation, the very first of its kind, was founded ‘under God.’

Many make light of this phrase and its significance, and certainly atheist groups may try to ignore or minimize it.  It is not a statement of theology, but a statement of the ordering of rights and liberty.  This one sentence in the Declaration of Independence is the very cornerstone of our Constitution, our system of government, and our national foundation.  Try reading the Declaration of Independence without the references to God and see if it has any real meaning. “We hold these truths to be self evident, that all men are created equal, that they are endowed with certain unalienable rights, that among these are life liberty and the pursuit of happiness….”  Where do our rights come from?   How are all men endowed with rights?  What is that process?  Without the acknowledgement that they come from a higher being, a Creator, then the natural interpretation would be that they come from government.  And if the government gives rights, then it can take them away.

Abraham Lincoln was eternally impressed with the Declaration. He said: “Let us revere the Declaration of Independence…… Let us re-adopt the Declaration of Independence, and with it the practices and policy which harmonize with it.”  As Harry Jaffa wrote in his book, New Birth of Freedom: “Lincoln did not appeal to the Declaration of Independence merely because it was our first and foremost founding document.  It was, he said, the immortal emblem of man’s humanity and the father of all moral principle because it incorporated a rational, non-arbitrary moral and political standard. The equality of man and man was a necessary inference from the inequality of man and beast — and of man and God.  No one possessed of a civilized conscience can fail to feel this sympathy.”

In the summer of 1858, Lincoln addressed a crowd and spoke about the Declaration of Independence.  He said, in part:

“…The Declaration was formed by the representatives of American liberty from thirteen States of the confederacy — twelve of which were slaveholding communities. We need not discuss the way or the reason of their becoming slaveholding communities. It is sufficient for our purpose that all of them greatly deplored the evil and that they placed a provision in the Constitution which they supposed would gradually remove the disease by cutting off its source. This was the abolition of the slave trade. So general was conviction — the public determination — to abolish the African slave trade, that the provision which I have referred to as being placed in the Constitution, declared that it should not be abolished prior to the year 1808. A constitutional provision was necessary to prevent the people, through Congress, from putting a stop to the traffic immediately at the close of the war. Now, if slavery had been a good thing, would the Fathers of the Republic have taken a step calculated to diminish its beneficent influences among themselves, and snatch the boon wholly from their posterity? These communities, by their representatives in old Independence Hall, said to the whole world of men: ‘We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty and the pursuit of happiness.’ This was their majestic interpretation of the economy of the Universe. This was their lofty, and wise, and noble understanding of the justice of the Creator to His creatures. [Applause.] Yes, gentlemen, to all His creatures, to the whole great family of man. In their enlightened belief, nothing stamped with the Divine image and likeness was sent into the world to be trodden on, and degraded, and imbruted by its fellows. They grasped not only the whole race of man then living, but they reached forward and seized upon the farthest posterity. The erected a beacon to guide their children and their children’s children, and the countless myriads who should inhabit the earth in other ages. Wise statesmen as they were, they knew the tendency of prosperity to breed tyrants, and so they established these great self-evident truths, that when in the distant future some man, some faction, some interest, should set up the doctrine that none but rich men, or none but white men, were entitled to life, liberty and pursuit of happiness, their posterity might look up again to the Declaration of Independence and take courage to renew the battle which their fathers began — so that truth, and justice, and mercy, and all the humane and Christian virtues might not be extinguished from the land; so that no man would hereafter dare to limit and circumscribe the great principles on which the temple of liberty was being built.” [The Collected Works of Abraham Lincoln, pp. 544-546].

Who were these 56 men who signed the Declaration?   Twenty-four were lawyers and jurists. Eleven were merchants, and nine were farmers and large plantation owners.  They weren’t rabble-rousers. They were soft-spoken men of means and education. They had security, but they valued liberty more.  They signed the Declaration of Independence knowing full well that the penalty would be death if they were captured.  Standing tall and unwavering, they pledged: “For the support of the declaration, with firm reliance on the protection of the divine providence, we mutually pledge to each other, our lives, our fortunes and our sacred honor.”

Not many people know that the sentence for treason in those days was brutal beyond imagination. They would hang the traitor to the point of death, then revive him in order to kill him again.  They would then disembowel the traitor and then draw and quarter him.

Five signers were captured by the British as traitors and tortured (although none were killed outright by the British).  9 died of wounds suffered in the War, and 12 lost all their property.  Many had their family members captured, kidnapped, and/or killed.  Francis Lewis, for example, had his home and properties destroyed. The enemy jailed his wife, and she died within a few months. John Hart was driven from his wife’s bedside as she was dying. Their 13 children fled for their lives. His fields and his gristmill were laid to waste. For more than a year he lived in forests and caves, returning to find his wife dead and his children vanished. A few weeks later he died from exhaustion and a broken heart.

On October 19, 1781, Lord Cornwallis surrendered to General George Washington at Yorktown to end the war of our Independence. The following year the Treaty of Paris was signed to officially end the war.  The United States was born.

The next step was to figure out a way to hold us together as a union (“a more perfect union”), keep us strong, and yet honor those reasons that the settlers came to America’s shores in the first place.  And so, on May 25, 1787, 55 delegates from all of the states (except Connecticut), met in Philadelphia to draft a Constitution that would accomplish these goals.

The Constitutional Convention (also known as the Philadelphia Convention) took place from May 25 to September 17, 1787, in Philadelphia, Pennsylvania.  Its purpose was to address problems in governing the United States of America under the Articles of Confederation following independence from Great Britain. The Convention was originally intended to amend the Articles of Confederation to make it more effective in dealing with issues common to all the states and acting on their behalf.  Apparently, the intention of certain delegates, namely James Madison and Alexander Hamilton, was not to amend the Articles but rather to create a new government altogether. The delegates persuaded a very sick and debilitated George Washington to act as the President of the convention and to preside over it after several attempts to organize such a meeting had failed to spark sufficient interest.

The states sent some of their finest minds to the Convention, including James Madison, Benjamin Franklin, George Washington, Alexander Hamilton, Gouverneur Morris, and George Mason.  These are the men we credit for giving us our new nation, as so perfectly conceived and designed. A few of our most important Founders, and our most brilliant political minds, were not present at the Convention. Thomas Jefferson, one of our most prolific and well-read Founders, was in France during the Convention, acting as Minister to that country.  John Adams was also abroad on official duty for the newly-independent nation, as Minister to Great Britain. Patrick Henry was also absent; he refused to go because he “smelt a rat in Philadelphia, tending toward the monarchy.”  He was likely referring to Alexander Hamilton, who strongly admired the British monarchy. (Hamilton  would later side strongly with the Federalists and in fact, become the predominant writer of the Federalist Papers).  Also absent were Richard Henry Lee, Samuel Adams, Thomas Paine, and John Hancock.

Delegates included those who fit into three general types: those who admired the monarchy and wanted our new system of government to be designed after the British system (monarchists), those who wanted power centralized in a strong central government, with a “consolidation” of the states and their power (nationalists), and those who wanted a federal government, one of limited powers, where the union is respected as a confederacy of sovereign states such that the states would remain sovereign and strong (federalists).  Alexander Hamilton was the most vocal proponent of the monarchist view, and likely the only one at the Convention and James Madison was the most vocal proponent of the nationalist view.  That would explain why Madison’s original plan was to create a central government with greater and stronger powers than the government established under the Articles of Confederation.  In fact, he arrived at the Convention with a plan that he was simply hoping to “sell” to the other delegates. Luckily that wasn’t the case.  And luckily for freedom-loving individuals, it was the Federalists who won the day at the Convention and it was Federalist principles upon which the Constitution was based.  Our Founders didn’t want to trade one form of tyranny for another – that is, in the form of big government.  In the Federalist Papers No. 39, James Madison acknowledged the Federalist position when he wrote: ” in relation to the extent of its powers…. the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”

Almost immediately, it was understood that our nation would need to be a republic rather than a true democracy.  It would be a nation of laws and not a nation of men.  It would be ruled by supreme law and not the mob.  In 1780, seven years before the Constitution was drafted, Massachusetts put in its Constitution two very important principles that would be later embraced in the US Constitution – the concept of separation of powers and the rule of law.  As it stated in the constitution governing the Commonwealth of Massachusetts: “In the government of this commonwealth the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers, or either of them; the judicial shall never exercise the legislative and executive powers, or either of them — to the end that it may be a government of laws and not of men.”

As a very old and very tired Benjamin Franklin was leaving the building where, after four months of hard work, the Constitution had been completed and signed, a lady asked him what kind of government the convention had created.  The very wise Franklin replied; “A Republic, ma’am if you can keep it.”

When the delegates left Philadelphia on September 17, not all members were happy with the final document.  Three high profile delegates refused to sign it:  George Mason (Virginia), Edmund Randolph (Virginia), and George Mason (Virginia), and Elbridge Gerry (Massachusetts).  They were opposed to the draft on several grounds.  They wanted slavery to be abolished in the newly-independent nation, they believed the federal government had too much power, they believed the government would exert too much power over the states and burden their sovereignty, and most of all they believed that the Constitution allowed for too much abuse by the federal government..  that it would easily grow to “become destructive of the ends” for which it was designed to serve.

The Convention might have wrapped up on September 17, 1787, but the battle for ratification was just beginning.

The delegates left the Convention in 1787 and returned home, knowing the real task was still ahead of them – selling their document to the individual states for ratification.  It would take another 4 years for the Constitution to be adopted. The individual states now would have to review the Constitution and decide whether to ratify and adopt it, thereby agreeing to be bound by its provisions.  When the Convention finished its work, it did not include a Bill of Rights in the final version of the Constitution. Several members, notably George Mason, were very disappointed by this decision and refused to sign the document over the issue. They believed that the new Constitution provided insufficiently bridled federal power. Those who argued that the Constitution did not need such a Bill of Rights (ie, the Federalists) rationalized that it wasn’t necessary.  After all, the Constitution did not give the new federal government the ability to restrict inherent rights, so no list of those rights was necessary. Others worried that if the rights were listed, they would invariably forget some and the list would ever be incomplete. And still others argued that the states each had their own constitutions (some even with a Bill of Rights), and that rights were best protected at a state level.  [Note that Alexander Hamilton addressed these reasons in the Federalist Papers No. 84].

Within 10 days after the Constitutional Convention wrapped up and the delegates returned home, a letter was printed in the New York Journal urging the people of that state to reject the new compact. The author of the letter used the pseudonym “Cato”, although many believed that it was their own Governor – Governor George Clinton.

According to Article VII of the Constitution, conventions in nine states had to ratify the document in order for it to become effective and binding. Some states were highly in favor of the new Constitution and ratified it quickly.  Those states were Delaware, Pennsylvania, and New Jersey; they ratified within three months. Georgia and Connecticut ratified one month later (January 1788).  But then the ratification began to heat up.  The remaining states weren’t as captivated with the Constitution as the earlier ones.  Massachusetts, New York, and Virginia, key states both in terms of population and stature (they also sent some of the most important and influential delegates to the Convention) thought the Constitution concentrated too much power in a federal government and would likely not ratify.  Debates in Massachusetts were heated, and only after assurances were given that their fears were misguided and that a Bill of Rights would be added, the state ratified. Given such assurances, other states followed – Maryland, South Carolina, and New Hampshire.  This brought the total to the magical number of nine and the Constitution, on June 21, 1788, went into effect.  The nine states were officially united and bound by the charter.

New York and Virginia still remained and it was highly doubtful that they would ratify and that the new Constitution would survive without the approval of these states. The battle now went into high gear.  Early in the ratification process, proponents of the Constitution took the name “Federalists.”  Their goal was to correct the shortcomings of the Articles of Confederation and that necessarily meant supporting a federal government with centralized functions.  (But of limited, clearly-defined functions).  Ironically, however, those who would oppose the Constitution because they wanted a more purely federal system (greater States’ rights, as Amendments 1-10 would later provide), were forced to take the name “Anti-Federalists.”  They wanted it to be known that they ‘opposed’ the Federalists.

It was clear at the time that a negative vote by either of two key states — New York or Virginia — could destroy the whole plan for the new Constitution because of their size and power.  Both New York and Virginia delegates were sharply divided in their opinions of the Constitution and New York’s Governor, George Clinton, had already made it known that he opposed its ratification.  The Anti-Federalists held considerable political power at the time and leaders such as Clinton and Virginia’s George Mason, sat firmly in that camp.

In response to the speeches and letters of the Anti-Federalists, and in response to the tenuous situation posed by New York and Virginia, the Federalists wrote their own letters.  Alexander Hamilton of New York, James Madison of Virginia, and John Jay (also of NY) wrote a series of letters under the shared pseudonym “Publius” in which they explained and defended the Constitution.  Their purpose was to persuade the New York convention to ratify the proposed Constitution but even more, they wanted to specifically answer the charges of the Anti-Federalists who were concerned that the new Constitution would take too much power from the states and the people and concentrate them in a central government. Their letters were published “to the people of New York” but were later collected into a volume called the Federalist Papers.  With respect to the authors of the Federalist Papers, whatever their differences, the message was unilateral and clear: survival as a respected nation required the transfer of important, though limited and clearly enumerated, powers to the central government. This would be done without destroying the identity or autonomy of the separate states.

[Note that the Federalist Papers are viewed as the ultimate authority on the intent and interpretation of the Constitution. They were absolutely instrumental in selling the Constitution to the states. To this day (although not to members of our government or to the Justices of the Supreme Court), the Federalist Papers remain as a classic commentary on American constitutional law and the principles of government.  This series has come to form the backbone of our national interpretation of the Constitution].

Of all the issues that the Anti-Federalists gave for rejecting the new Constitution, the lack of a Bill of Rights was the most compelling for many people and many states.  In fact, George Mason and the others returned to their home States to lobby against the ratification of the Constitution until a Bill of Rights was added. Although the Constitution was eventually ratified, a clear message had been delivered: there was strong sentiment demanding the inclusion of a Bill of Rights.  In a letter dated December 20, 1787 to Madison, Thomas Jefferson called the omission of a Bill of Rights a major mistake.  He wrote:  ”A Bill of Rights is what the people are entitled to against every government, and what no just government should refuse, or rest on inference.”   Jefferson and Madison both argued that a declaration of rights would help establish the government, and especially the judiciary, as “guardians” of  individual rights.

As the progression for state ratification of the Constitution continued, reports from June 2-25, 1788 show clearly that in the state of Virginia, Patrick Henry, George Mason, and Edmund Randolph led the fight for the Bill of Rights.  Up until this point, James Madison continued to oppose such a bill.  Henry’s passionate speeches of June 5 and June 7 resulted in Virginia’s motion that a Bill of Rights be added to the Constitution (after all, Virginia’s Constitution had one); and on June 25, the Virginia Convention selected George Mason to chair a committee to prepare a proposed Bill of Rights, with Patrick Henry and John Randolph as members.  The proposed Bill of Rights, written mainly by George Mason, by the Virginia Ratifying Convention would form the basis of what would become the US Bill of Rights.

New York and Virginia, and in fact, all thirteen states eventually ratified the Constitution. Virginia ratified in June 1788 and New York ratified the following month. The Constitution went into effect on March 3, 1789 and George Washington was elected our first President on April 30. The states ratified it in reliance on the promise to respect state sovereignty — the keep power closest to the people.  As Hamilton acknowledged in the Federalist Papers No. 31:  “The State governments, by their original constitutions, are invested with complete sovereignty…..  As in republics, strength is always on the side of the people, and as there are weighty reasons to induce a belief that the State governments will commonly possess most influence over them…   (We must) confine our attention wholly to the nature and extent of the powers as they are delineated in the Constitution. Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scales in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the general and the State governments.”

The first Congress under the Constitution had a lot to accomplish.  It had many new powers not available to the original Congress under the Articles of Confederation, and every state had interests it wanted to protect. James Madison, seen by many as the Father of the Constitution, had won a seat in the House of Representatives, running partly on a platform that included, of all things, addition of a Bill of Rights. It was Jefferson and Mason who succeeded in finally convincing him of the necessity. The truth of the matter was that Madison understood the grim political reality that without one, it was unlikely the new Constitution would receive widespread public acceptance.  Once he won a seat in the House, he formally withdrew his opposition and began work on the amendments (Bill of Rights) that the states were demanding.

On June 8, 1789, Madison presented his draft of the amendments to the Constitution in order to get the discussion moving in Congress.  Madison drafted the amendments drawing on the ideas put forth in the Virginia Declaration of Rights, which were written by George Mason.  From June to September, both houses of Congress debated these amendments, along with additional ones presented by the individual states.  Rights were enumerated, removed, modified, and tweaked.  Eventually, both houses agreed on twelve articles of amendment and sent them to the states. Two years later, on December 15, 1791, ten of these original twelve were ratified by the states and they became a part of the Constitution as the Bill of Rights.  (By custom, the amendments were added to the end of the original document, rather than inserted in the text, as Madison had envisioned.)

As Joe Wolverton II wrote in The New American magazine: “It can be said that from the ashes of the Articles of Confederation a phoenix arose in the form of a mighty eagle, emblem of the new American Republic. The Convention of 1787 took the weaknesses of the Articles and transformed them into the strengths of a new Constitution.”

Just as the English Bill of Rights did before it, just about every right listed in the Bill of Rights was a response to something the British government had done to the colonists (British subjects).  For example, the first amendment was in response to oppression based on religion. The third amendment was in response to the Quartering Act.  And the Due Process clause of the fifth amendment was in response to repeated instances of confiscation without compensation.  Our Founders recognized the fact that to list all the fundamental rights held by individuals would be an exercise in futility, they included the Ninth Amendment, lest the Constitution be construed to acknowledge only a handful of rights that government can’t regulate and deny – “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.”

There were 55 individuals directly involved in framing the Constitution at the Constitutional Convention, and an additional ninety in the first federal Congress that framed the First Amendment and Bill of Rights.  Allowing for the overlap of nineteen individuals who were both at the Constitutional Convention and a part of the first Congress, there were 126 individual participants in the framing of the Constitution and the Bill of Rights.

The Constitutional Convention of 1787 produced the most enduring written Constitution ever created by human hands.  As Ben Franklin noted in a speech on that final day urging all delegates to sign the document and to do so immediately, the Constitution may have its faults, but it is possible that no better document could have been created.  It is a documented created for We the People, so we can be assured of our rights with respect to our government…  just as the English accomplished with their Magna Carta and their English Bill of Rights.  The Magna Carta and the English Bill of Rights sought to protect against tyranny in England and our U.S. Constitution and Bill of Rights serve the same purpose – to safeguard the individual freedoms of all Americans against arbitrary, self-serving government.  On March 30, 1789, the Constitution, at last, became the “the supreme Law of the Land” – just as Magna Carta had been deemed superior to other statutes.  In 1215, when King John confirmed Magna Carta with his seal, he acknowledged the concept that is now firmly-embedded in the fabric of all free nations – that no man, not even the King – is above the law.  And the US Constitution stands above all other documents in the scope of the individual rights that are respected and protected.  John Adams summed it up this way: “We are a government of laws, and not of men.”

Unlike the Magna Carta and English Bill of Rights which lists and establishes the rights of the individual with respect to government, the Constitution actually requires that the PRIMARY RESPONSIBILITY OF GOVERNMENT is the protection of individual rights.  Our Founders took what the British had achieved and secured the rights of the individual even more judiciously. The designed the Constitution specifically to put into practice the fundamental principle of the Declaration of Independence: that the people form their governments and grant to them only “just powers” – limited powers – in order to secure their God-given, unalienable rights.  And just like the English had done before them, our Founders established the Constitution as our nation’s charter of individual freedom with an express provision making it the supreme law of the land.

The Constitution is the foundation of our nation. It guarantees our liberty.  It does not give us liberty. Our liberty comes from our humanity and our bond with our Creator.  Rather, it guarantees and protects our liberty.  (This is an important distinction). With the Bill of Rights and Declaration of Independence, it constitutes the charter of our freedom.  For people who cherish their liberty and its roots, it is imperative to understand how the Declaration of Independence and the Constitution fit together.  First, the Declaration proclaims to the world that in the United States we acknowledge that there is a God – a “Creator” – who supersedes any government and whose intention it is that all men are to live free and to reap the benefits of such freedom. If all men are bestowed with innate liberties, then all men must be on equal footing and therefore are equal. The Declaration then states: “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..”  This statement outlines the very purpose of our Constitution —  “To secure our rights.”  (To secure the rights that God has bestowed upon us).  And finally comes our obligation to protect this very special arrangement — “governments are instituted among Men, deriving their just powers from the consent of the governed.”  The federal government is a creation of We the People.  It gets its “just” powers from us.  The dictionary defines “just” as “morally right and fair.”  If we aren’t “just,” then our government will not be “just.”  Our Republic is simple yet magnificent in design.  As human beings, we have been gifted a magnificent brain and reasoning powers (gifts that have still not “evolved” in other species) and the freedoms to develop those gifts to the fullest.  Our lives are to be defined by how well we develop our gifts and how ambitious we are in furthering those pursuits.  Our government is charged with protecting our freedoms so that we can enjoy Life and pursue Happiness (which includes property and intellectual property, or career).  To make sure that our government does just that, our Founders tied the government intimately with those who have the greatest interest in liberty – “We the People.”  We are the keepers of the government.  We are the watchdogs of our own liberties.  We send the people who run government, we determine its character, we determine its policies, we determine whether it runs as it should, we determine whether it adheres to our Constitution, and we determine whether it follows that one true formula that can assure that our liberties will be protected and our country will stand the test of time.  As Patrick Henry told us: “The Constitution is not an instrument for the government to restrain the people;  It is an instrument for the people to restrain the government – lest it comes to dominate our lives and interests.”  Ayn Rand, novelist and philosopher, also understood the relationship. She wrote: “The US Constitution is a limitation on the government, not on private individuals… It does not prescribe the conduct of private individuals, only the conduct of the government… It is not a charter for government power, but a charter of the citizen’s protection against the government.”

Our nation was founded on several principles of government (see the section on “Our Founding Principles”) and three basic fundamental freedoms – “Life, Liberty, and Property (ie, “the Pursuit of Happiness”).  These are the three which form the foundation for all our protected freedoms and liberties.  As Justice Sutherland (Supreme Court, 1921-38) explained: “The three great rights are bound together as to be essentially one right. To give a man his life, but deny him his liberty, is to take from him all that makes his life worth living.  To give him his liberty, but take from him the property which is the fruit and badge of his liberty, is to still leave him a slave.”  Our Founding Patriots did not seek independence because of stifling taxation or any excessive restriction of liberty.  Indeed, the tax burden on American colonists was not even close to the tax burden on subjects in England, and it was far less than our burden today.  In 1776, taxes in the colonies were the lowest in the civilized world.  Rather, as the British subjects they considered themselves to be, they believed they had a right to representation in the British Parliament. The English Bill of Rights 1689 had forbidden the imposition of taxes without the consent of Parliament and since the colonists had no representation in Parliament, the taxes that the King had continued to impose on the colonists violated their guaranteed rights as Englishmen.  Hence, “No Taxation Without Representation” and the Boston Tea Party became the battle cry for independence.  Our early colonists quickly and instinctly understood when their rights as Englishmen were violated.  And they refused to tolerate the abuse.  How many Americans would recognize abuses by our own federal government?

A people who don’t know their history and their foundations will not know when the Constitution ceases to restrain government and begins to restrain citizens. Thomas Jefferson said, ”Whenever the people are well-informed, they can be trusted with their own government.”  When they are not well-informed, then they cannot expect to keep their freedoms, for they will not know when the government is slowly taking them away.  So, in fact, a people who are not educated properly in their nation’s history and heritage, pose a great threat to individual liberty as we know it here in the United States.

Perhaps Jefferson knew that we would fail to educate and fail to hold those American values given to us dear to our heart and mind and the government would s the gifts and responsibilities that make us uniquely “Americans.”  Perhaps that is why right up front, in the second paragraph of the Declaration of Independence, he gave us this advice:  “Whenever the government becomes destructive of the ends for which the Declaration of Independence was created and ratified, the people have the right to alter it or abolish it and to form a new government to properly and fairly secure their safety and pursuit of happiness.”

“If there be a principle that ought not to be questioned within the United States, it is that every man has a right to abolish an old government and establish a new one. This principle is not only recorded in every public archive, written in every American heart, and sealed with the blood of American martyrs, but is the only lawful tenure by which the United States hold their existence as a nation.”  James Madison, referred to as the “Father of the Constitution” and author of 28 of the 85 Federalist Papers, wrote this.

Let us not forget that the Constitution was written for those in whose name it was cast: We the People.  It is an agreement or contract – NOT between We the People and government (the government didn’t sign the Constitution), but rather an agreement amongst the states on behalf of the people – setting out how much power would be transferred to the government.  And it is also LAW.  The legal framework set up in the Constitution, for the protection of individual rights, is the SUPREME LAW of the land (Article V).   It is a short document –  and remarkably straightforward.  Our Founders intended it to be studied in American schools and to be read in the home.  They envisioned a nation of people who knew their Constitution, their charter of freedom, and knew how their government worked and how it rested on the service of good, moral, educated, and ethical people. They expected people to understand all this and step up and serve their country… not as career politicians, but as a civic duty.  They never intended that we would need judges and justices to interpret it for us.  It wasn’t required that we have law degrees to understand it.  The Constitution was never supposed to come under the exclusive dominion of the Supreme Court who would ignore its simple common sense meaning and would fail to see the forest from the trees. It was meant for you and I to understand.

The most important thing to remember about the Constitution is what Patrick Henry told us: “The Constitution is not an instrument for the government to restrain the people;  It is an instrument for the people to restrain the government – lest it comes to dominate our lives and interests.”

Our proud English history is a story of a human struggle, beginning over a 1000 years ago, to limit government and demand that certain rights are so fundamental to the existence of individuals that government must respect them.  Our schools, and even learned citizens, do a great disservice to their students and fellow Americans by not teaching this.

As we see the direct impact of the Magna Carta and English Bill of Rights in our founding documents, and as we appreciate the overwhelming passion our early colonists felt for the fundamental liberties that Englishmen enjoyed but which they felt were being denied, leading to our independence, we clearly understand that American history IS England’s history. The story of America is a continuation of man’s establishment of sovereign rights with respect to government and with respect to a tyrant. It is a continuation of man’s determination to limit government and therefore to limit the intrusion on individual liberty. Perhaps Supreme Court Justice David Davis said it best, in Ex Parte Milligan [71 U.S. 2 (1866)]:  “The founders of our government were familiar with the history of that struggle; and secured in a written constitution every right which the people had wrested from power during a contest of ages…..Time has proven the discernment of our ancestors; for even these provisions , expressed in such plain English words, that it would seem the ingenuity of man could not evade them, are now, after the lapse of more than seventy years, sought to be avoided. Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril unless established by irrepealable law.  The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times , and under all circumstances.”            

Our children should be taught about how long and hard people fought for the freedom they enjoy today.  Our children should be taught the historical context and events that led to the creation of our limited government with its checks and balances. They should learn how our founding documents define what the government can and cannot do, and why this is so. They should understand why they are blessed to live in a republic so soundly-designed and why the Rule of Law is so important. And they should appreciate why our Constitution so aggressively provides for the protection of life, liberty, and property, protects against unjust punishment and government confiscation, and encourages the rights of conscience and expression.

As George Washington instructed:  “A primary object should be the education of our youth in the science of government.  In a republic, what species of knowledge can be equally important?  And what duty more pressing than communicating it to those who are to be the future guardians of the liberties of the country.”   Likewise, Thomas Jefferson advised: “Every government degenerates when trusted to the rulers of the people alone.  The people themselves, therefore, are its only safe depositories.  And to render even them safe, their minds must be improved to a certain degrees.”  Taking the floor at Virginia’s ratifying convention, Governor Edmund Randolph reasoned that “if the government is to be binding on the People,” wouldn’t the People feel compelled to remain educated and diligent regarding the Constitution.  Andrew Klavan, of PJTV’s “The Culture,” told us: “Many people we trust with our government turn out to be just the sort of power-hungry, corrupt, low-lives from whom the Founding wig-wearers were trying to protect us.  The freedom we enjoy today is the exception in history, not the rule.  Grow complacent in its strength, ignorant of its foundation, or careless of the rules of its sustainment, and it will be lost to what James Madison called ‘the gradual silent encroachment of those in power.’ ”

The Constitutional Convention was an extraordinary undertaking.  It was an attempt by our Founding Fathers to determine “whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”  (Alexander Hamilton, in the Federalist Papers No. 1).

Likewise, this country is referred to as the great American “experiment.”  Why an experiment?  Because we still don’t know what kind of nation our unique “constitutional formula”  will produce.  Our nation continues to evolve. Yet sadly, it does so with a different breed of America citizen.  It does so with a population who doesn’t embrace and cherish liberty like our forefathers did.  In short, we still don’t know whether a nation so conceived in liberty will long endure.

When the delegates to the Constitutional Convention met in that small, hot, stuffy room at the Pennsylvania State House in Philadelphia (now known as “Independence Hall”), there was a chair that George Washington as the president of the Convention sat in which had a carving of the sun and its rays centered at its top.  Later, Benjamin Franklin  would remark that during the Convention, he often wondered if the carving signified a sunrise or sunset for the new country.  According to James Madison, Franklin finally figured it out.  He told Madison: “Now at length I have the happiness to know that it is a rising and not a setting Sun.”

Would he say the same if he could see this country today?

As we celebrate this Independence Day, let us do so in remembrance of the sacrifices and anticipations of a free nation.  And while we were able to separate our allegiance to England, a nation that abused the rights of the early colonists, let us also remember the rich history we share with her.  Let us remember again what it truly means to be an “American.”

“Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed onto them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”      —  Ronald Reagan

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