NULLIFICATION: A Concept Whose Time Has Come

        by Diane Rufino

[ I have put together a powerpoint presentation that coincides with this paper.  If anyone is interested in it to help educate on this topic, please let me know ]

It gives me great pleasure to write about Nullification and to entertain its usefulness.  Nullification is a doctrine articulated by Thomas Jefferson and it just so happens that he is my favorite Founding Father.

Nullification is as much a Jeffersonian doctrine as the doctrine that says that all individuals are endowed the alienable rights of Life, Liberty, and the Pursuit of Happiness, and that governments, instituted among Men and deriving their just powers from the consent of the governed, are responsible, above all else, to protect those rights.

As I said, Thomas Jefferson is my favorite founding father.  He, above all the others perhaps, researched all the possible government philosophies, ancient and modern, so that he could not only make the case for secession from Great Britain but also to pave the way for Madison and the others at the Constitutional Convention to draft a Constitution for a government scheme that in every design feature, provision, phrase, and word, sought to limit government to limited areas and to enlarge and protect individual liberty. His Summary View of the Rights of British America, his Declaration of Independence, his Virginia state constitution, his Statute for Religious Freedom, his Virginia Declaration of Rights, and his many letters to James Madison all provided ample principles upon which our freedoms lie.

President John F. Kennedy hosted a dinner party in 1962 honoring Nobel Prize winners during which he commented: “I think this is the most extraordinary collection of talent and human knowledge that has ever been gathered at the White House, with the possible exception of when Thomas Jefferson dined alone.”

Many people over the years have tried to explain what they think the US Constitution means, including President Obama.  And those interpretations have usually sided with the government’s belief that it can do whatever it wants.  And that’s why we’re in the constitutional crisis that we are today.  Unfortunately, because of a lack of proper education and a willful determination not to read the writings of our Founders, we have representatives in all ranks of state government who support the government’s position.  We have state officials who believe they have no responsibility to second-guess the federal government or police its actions. They don’t believe states have any obligation or power to stand up to the federal government.  Maybe they believe the issue of States’s rights died on the battlefields of the Civil War.   But Jefferson has told us differently.  His remedy to keep the government in check has been part of our history since 1798.

President Obama and such departments like the US Department of Justice like to bully the states and send the message that they dare not go against the federal government.  But when Thomas Jefferson declares that the power to limit the size and scope of government rightfully belongs to the states, you don’t need to get a second opinion.  You don’t get any higher authority than that on the intent and meaning of the Constitution or founding government principles.

And so, this states’ remedy of Nullification, because it is articulated by Thomas Jefferson and supported so solidly by founding principles, must be a meaningful way to address the many constitutional violations committed by the federal government – all three branches.

To Nullify –

“To Nullify” means: –  to make legally null and void;  to invalidate.   (Webster’s dictionary) –  to render inoperative, as if to nullify a contract.   (dictionary.com)

Nullification is a States’ Rights doctrine that applies to the laws and actions of the federal government.  So from thid definition, we can see that Nullification has something to do with invalidating federal law.  We can also see that if a violation of the Constitution is egregious enough, it can invalidate the agreement among states that holds our Union together…  That would be the extreme case.

Why is this Concept important? 

–  Our Founders labored and debated extensively over how to establish a nation governed by a limited federal government, and they did so, by drafting a constitution creating a government of limited and defined powers, establishing a system of dual sovereign powers, separating responsibilities among separte branches, and including an elaborate system of checks and balances.

Their unique, special government formula can be summed up as follows:   Limited government = Maximum Individual Liberty

–  But one question remained:  What can be done if the government violates the very Constitution which defines it?  What protections are available for the people?  

In fact, that question became very urgent in 1796 when the government enacted the Alien and Sedition Acts and attempted to quash free speech.

Thomas Jefferson articulated the most effective option – Nullification, or as he called it, “the Rightful Remedy.”  Jefferson believed it was up to the States, the parties who created the federal government and who retained the bulk of sovereign power and who are most responsive to the concerns and interests of the People, to stand up to the government.  James Madison articulated a very similar option, which he termed “interposition.”

What Exactly is Nullification?  

–  Nullification is a states‘ rights doctrine that says that a state can and must refuse to recognize and enforce a federal law that assumes power not delegated by the US Constitution.

–  Nullification as a term was introduced by Thomas Jefferson in 1798 when he drafted the Kentucky Resolves to articulate the reason for the state  to oppose an unconstitutional federal law – the Alien and Sedition Acts.

–  Nullification is consistent with founding (Jeffersonian) principles.

–  Nullification begins with the central premise that a federal law that exceeds the power granted in the Constitution violates the Constitution and is therefore no law at all.  It is void and has no effect.  It has no force of law. It is unenforceable.  That is because it is based on invalid constitutional authority.  [Laws need to be based on legal authority, and in fact, that is the very purpose of a constitution.  If laws are not based on proper authority, then they are improper and illegal. They are null and void and therefore unenforceable.  This is the concept at the core of nullification].

—  But Nullification goes one step further!!  

The doctrine states that if a law is unconstitutional and therefore void and has no legal effect, it is up to the states, the parties to the federal compact (see later), to declare it so and thus refuse to enforce it.

The government will always try to enlarge and concentrate its power.  It would be foolish to wait for the federal government, or a branch thereof (such as the federal courts), to condemn its own law or censure its own conduct.   [Remember that this was the great concern of the Anti-Federalists.  They were skeptical that the government created by the Constitution of 1787 would tend to concentrate power.  They were skeptical that it would try to take powers from the States, eventually neutering them and creating a national government. They wrote the Anti-Federalist Papers to try to warn the States about the dangers in adopting the Constitution and to prevent them from ratifying it.  And then we know what happened.  Alexander Hamilton, James Madison, and John Jay wrote a series of 85 essays answering the skeptics, providing assurances, and explaining the language and intent of the Constitution].

–  Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and  interpretation of the Constitution.  But why should the Court, or any federal court for that matter, be such a final arbiter?  They are, after all, a branch of the federal government.  How can the federal courts truly be expected to be a fair umpire for the States?    (Madison and Hamilton addressed this same concern in the Federalist Papers.  That’s why the Supreme Court was only intended to “give its opinion” and offer “advice” as to the constitutionality of federal law.  It was to guide Congress and the Executive so they could remain loyal and restrained in their powers.  It was intended to be a weak branch)

Nullification provides the necessary “shield” between the people of a state and an unconstitutional law or policy (even judicial decision) from the federal government.

Jefferson termed it “The Rightful Remedy.”

Interposition:  A Doctrine Very Close to Nullification

–  James Madison articulated a states’ rights’ remedy which is very similar option, and he called it ”Interposition.”

–  This doctrine was introduced in the Virginia Resolves of 1798

–  According to this doctrine, the powers of the federal government are limited by the plain sense and intention of the Constitution – as defined by the States.  When the government exceeds those powers, the States have the right and the duty to INTERPOSE for the sake of the People and to “arrest the evil.”

“To Interpose” means  –  to intervene between two parties;  to insert between one thing and another  (Webster’s dictionary)

Why Nullification?

–  To maintain Constitutional limits –  To preserve the balance of power between the States and the federal government –  To limit the size and scope of the federal government, thereby enlarging individual liberty and protecting against government tyranny

EXAMPLE of Nullification:  The National Defense Authorization Act (NDAA) –

The nullification of the NDAA is a very recent example.

The NDAA defines the whole world, including the United States itself, as a battlefield in the War on Terror.  (Note that “terror” is an ideology or a tactic and NOT a country or defined enemy).  The NDAA gives the President the power to target American citizens as “belligerents” and detain them indefinitely.  He has the power to suspend Habeas corpus (and other rights protected by the Bill of Rights) simply by labeling the person as an “enemy.”  Abraham Lincoln did this during the Civil War.

[Note that after the Civil War ended, one of the Northerners detained indefinitely by Lincoln, Milligan, challenged the violation of habeas corpus.  It went to the Supreme Court.  Ex parte Milligan.  The Supreme Court said that Lincoln’s detention of American citizens (ie, “northerners”) was unconstitutional.  The Court said that it matters not what the person did but simply who he is.  If he is an American citizen, he is protected by the Bill of Rights no matter what.  The proper remedy for someone who fights against the country or “aids and abets” the enemy is treason (Article III).   The Court, during its progressive era – under FDR, turned that decision on its head, which is a discussion I made in my earlier article: “Nullification and the NDAA”].

VIRGINIA recognized the evil contained in the NDAA and decided to use Nullification to declare and address its unconstitutionality.

How exactly does the NDAA offend or violate the Constitution?

First, only Congress can suspend Habeas corpus, and only in limited circumstances; otherwise the power is expressly PROHIBITED to Congress.  In Article I, Section 9 (Powers Prohibited to Congress), clause 2, we find:   “The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.”

Second, should an American wage war against the United States or give material aid or comfort to the enemy (meaning that War has been declared), the rightful course of action – and the one that the Constitution expressly provides – is an action in TREASON.

SECTION 3. Clause 1 (the Treason clause) states:  ”Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open court.”

Virginia used Nullification to stand up against the constitutionality of the NDAA. Virginia’s NDAA Nullification Act (H.B. 1160) was introduced in the VA legislature on January 16, 2012 and after a few rounds of modifications between the state house and senate, it passed in April.  With H.B. 1160, Virginia has declared that with the National Defense Authorization Act (NDAA), the federal government has assumed powers not delegated to it under the Constitution and what the bill does is to “Prevent any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency or the armed forces of the United States in the investigation, prosecution, or detainment of a United States citizen.”   The bill takes effect on July 1st.

Think about the significance of the bill.  It declares that the bill exceeds the power of the federal government and therefore it does not have the force of supreme law.  The states do not have to comply.  But it also goes one step further.  It nullifies the Supreme Court decisions that allow the Executive to classify American citizens as “enemy combatants” so that they are not entitled to the protections of the Bill of Rights.

On the other hand, H.B. 1160 is not a true or full nullification bill. A true nullification bill would warn the government that no federal official will be permitted to exercise jurisdiction in the state of Virginia to enforce the NDAA unless it gets permission from the applicable state sheriff.

Nullification is the Rightful Remedy – the rightful state remedy – to limit the size and scope of the federal government.  It is the constitutional remedy, under our system of dual sovereignty (embodied in the Tenth Amendment), the most powerful of checks and balances, to keep the government to its constitutional limits and within constitutional boundaries.

The Constitution either means what it says, or it doesn’t mean anything at all.  The federal government must honor and obey the Constitution, just like the states and the citizens of this country are obligated to do, or our system of government begins to fall apart.

If we allow the federal government to impose even one unconstitutional law then we destroy the Constitution one piece at a time.

Both Thomas Jefferson and James Madison warned: “If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power.”

What are the bases of Nullification?

—  The “Federal” Design of our government (We are a “Federation” of states)

—  Dual Sovereignty

—  Tenth Amendment

—  The “Compact Theory” of the Union

—  US Constitution, The Supremacy Clause  (Article VI, Section 2)

—  The Supreme Court decision in Marbury v. Madison (1803)

Our Federal System: 

–  Federation of sovereign states –  Dual Sovereignty –  Division of Power –  Implies that the “common” government should serve the states

As everyone knows, we are a FEDERAL government and not a NATIONAL government.  A “federal” government implies that we are a federation of sovereign states which has delegated or transferred some its authority to a government to serve, maintain, and support the union.  A federal system is one in which sovereign powers are divided between a common government and the governments of the individual states.

So here we see the basis for our system of Dual Sovereignty.  In those limited areas where the Constitution gr ants the federal government power to regulate, the federal government is supreme and sovereign.  But in all remaining areas, power is RESERVED to the States and therefore they are supreme and sovereign.

A federal system implies a government that “serves” the individual states. (In early documents, you will see that the states refer to the federal government as an “agent” of the states).

The Tenth Amendment: 

“Federalism” is widely regarded as one of America’s most valuable contributions to political science. It is the constitutional division of powers between the national and state governments – one which provides the most powerful of all checks and balances on the government of the people.  It is the foundation upon which our individual rights remain most firmly secured.

James Madison, “the Father of the Constitution,” explained the constitutional division of powers this way, in Federalist Papers No. 45: “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce.. The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”  Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole.  The one is the domestic, the other the foreign branch of the same government.”

The principle of Federalism was incorporated into the Constitution through the Tenth Amendment, which states: “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.”  It is similar to an earlier provision of the Articles of Confederation which asserted: “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.”

The “Compact Theory” of the Union

Nullification is also based on “Compact Theory” (also referred to as the “Compact Theory of the Union” or the “Compact Theory of Federalism”)

Compact means contract, or agreement.  They essentially all mean the same.  Compacts, like contracts, bind parties to a set of conditions and responsibilities. In all contracts, each party suffers some detriment but also enjoys some benefits.  The states suffer a detriment by having to delegate some of their sovereign power to the federal government on responsibilities such as security, commerce, relations with foreign countries, and currency. They enjoy a benefit by having a common government serve their interests in security and regulation of commerce among states, for example. 

The Compact Theory was discussed even before the states ratified the Constitution.  Both Thomas Jefferson and James Madison wrote separately to propose that the Constitution be based on this principle. Under the Compact Theory of Federalism, the United States is made up of a voluntary union of States that agreed to a set of conditions on how they will be organized and governed.  They agreed to cede some of their authority in order to join the union, but that the states did not and could not, ultimately, surrender their sovereign rights. Under this theory, states can determine if the federal government has violated its agreements because they are the rightful parties who understand the terms and intent of the compact.  The federal government was a CREATION of the compact and NOT a party to it.  The compact theory states that our federal government was formed through an agreement by all of the states.

Also, as with all contracts and agreements, the federal compact is limited by its language and by the intent when it was entered into.  It is only legally enforceable under such conditions.  In other words, the government is only legal for the specific purpose it was ratified for and under the precise terms (except for amendments properly adopted through the Article V amendment process).  The Constitution is a contact between the individual states which they can dissolve. And this was precisely what Thomas Jefferson referred to in his Declaration of Independence when he wrote the words:

“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 effect 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.”

The Compact Theory was explained and emphasized by Thomas Jefferson in the series of resolutions he wrote which would become the Kentucky Resolves of 1798, which we’ll go into detail in a bit.

Now, you don’t have to take my word that the Union was based on the Law of Compact. You don’t have to take my explanation as an attorney.  Just go back and read what our Founders wrote, look at the wording used in the States’ ratifying Convention.  And also look at the documents such as the Declarations of Secession” submitted by the Southern states when they seceded from the Union. You’ll see their understanding of the Constitution.

They used the terms “compact” and “agent” (meaning the federal government was intended to be an agent of the states).

It is not for us to redefine those foundations.  And it is certainly not for the federal government to do so.  Again, the federal government wasn’t even a party to the compact; it was the creation.

South Carolina’s Declaration of Causes of Secession (“Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union”) adopted on December 24, 1860, provides a nice summary of the establishment of our country:

“[With the Declaration of Independence of 1776] was established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.

      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.

        If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

         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 May 23, 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.

         We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: 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.”

***  As we’ll see later, South Carolina’s “Articles of Secession” is based heavily on Jefferson’s “Kentucky Resolves.”

South Carolina’s Declaration of Causes goes on to emphasize that stipulations in the Constitution were so material to the compact that without them, the compact itself would never have been made.

Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that document/agreement will be changed or interpreted in the future?  No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and  interpretation of the Constitution.  But why should the Court, or any federal court for that matter, be such a final arbiter?  They are, after all, a branch of the federal government. How can such courts truly be expected to be a fair umpire for the States, especially when it was the States themselves, the parties to the compact (contract), which understood and meaning and intent of the Constitution and the purpose for the federal government. The foundational point upon which nullification rests is that the federal government cannot and must not be permitted to hold a monopoly on constitutional interpretation.  If the federal government has the exclusive right to evaluate the extent of its own powers, it will continue to grow, regardless of elections, the separation of powers, and all the other limits and checks and balances built into our system of government. This is precisely what Thomas Jefferson and James Madison warned about when they crafted the Kentucky Resolves of 1798 and Virginia Resolves of 1798.

The Supremacy Clause 

The Supremacy Clause of the US Constitution expressly embodies the core principle of Nullification.  The Supremacy Clause (Article VI, Section 2) reads:  “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made under the authority of the United States, shall be the Supreme law of the land; and the judges in every state shall be bound thereby…. “

The Supremacy Clause does NOT say and does NOT mean that “All laws passed by the Federal Government are the supreme law of the land.”

The Supremacy Clause means that Constitution is the supreme law of the land, and only laws passed according to legal authority granted by the Constitution are to be considered supreme law.  Laws passed outside the scope of such powers are null and void and can be disregarded.

The undisciplined view that the government is protected in all that it does by the Supremacy Clause is one of the biggest obstacles to Nullification.  We have to help root out this ignorance.

But you don’t have to take my word for this interpretation.  Just look at what our Founders wrote at the time the Constitution was drafted:

–  “If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct.  The laws are enacted pursuant to the powers entrusted to it by its constitution.  But it will not follow from this doctrine that acts which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land.  These will be merely acts of usurpation, and will deserve to be treated as such….”    (Alexander Hamilton, Federalist Papers No. 33)

–  “There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid.”   (Alexander Hamilton, Federalist Papers No. 78)

–  “Clearly, a federal law which is contrary to the Constitution is no law at all; it is null, void, invalid. And a Supreme Court decision, which is not a ‘law,’ has no ‘supremacy,’ even if it is faithfully interpreting the Constitution. So it is the height of absurdity to claim that a Supreme Court decision that manifestly violates the Constitution is the ‘supreme law of the land.’”   (William Jasper, editor of “The New American, an affiliate of the John Birch Society)

Marbury v. Madison (1803):

 

In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), Chief Justice John Marshall wrote:

“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric had been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.

This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?  (In other words, the Constitution is NOT a “living document.”)  The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or, that the legislature may alter the Constitution by an ordinary act.

Between these alternatives there is no middle ground. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law: if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.

Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void. “

SUMMARY:

In summary, the concept of Nullification is indeed a founding doctrine.  It is a States’ Rights Remedy (termed the “Rightful Remedy”) inherent in the states’ reserved powers under the Tenth Amendment, founded in the Compact Theory of Federalism, articulated clearly in the Supremacy Clause, and incumbent upon them under our system of dual sovereignty.  Nullification is the “Rightful Remedy” –  the Rightful States’ Remedy – to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution.

What Nullification is NOT –

–  It was NOT invented by advocates of slavery to perpetuate the institution. –  It was NOT used as a test run for a stand-off between the North and South. –  It was NOT used to instigate secession. –  It is NOT a racist doctrine

The Civil War unfortunately changed our thinking in this country, and it, along with the Civil Rights era and the Civil Rights 14th Amendment, affected how we are taught history and how we are taught to view the federal government.  Most of us have been taught that the idea of nullification, like secession, is unconstitutional; and that it’s a discredited, racist political doctrine.  We are taught that the federal government is supreme in everything that it does and the states are subordinate entities that must obey all federal laws and programs and policies. We’re told that ideas like nullification and secession died at Appomattox, Virginia in 1865 when the North defeated the South.  After all, Abraham Lincoln, the first President to believe he had the power as President to suspend the Bill of Rights for ordinary individuals and to declare that the Union was intended to be perpetual and therefore the right of self-preservation and self-determination articulated in the Declaration of Independence –  ”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, 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” –  no longer applies to Americans.

But Nullification and State Sovereignty and even the right of Secession did not die when the South conceded defeat to the Union Army at Appomattox.

But many states believe that.  Take North Carolina, for example.  Article I, Section 4 of the NC Constitution (titled: “Secession Prohibited”) declares that North Carolina shall “ever remain a member of the Union” and that it has NO RIGHT as a state to secede or dissolve the Union.  Talk about state submission!!  It’s memorialized right in the state constitution.  This section needs to go.  No group of sovereign individuals needs to be defined as being blind servants to a central government.

So again, we have to help change that mindset.  Imagine that our President is Adolf Hitler and ask yourself: “What would you hope would happen” in this country.  Would you hope that the states blindly follow whatever policies he puts in place?  What if he did here what he did in Germany and passed the Enabling Act, which suspended the peoples’ rights of speech, press, and assembly?  What if he nationalized the church?  What if he enacted a policy of stripping certain citizens of their property and citizenship?  And then proceeded to round them up and put them in detention or death camps…. because after all, at that point they wouldn’t be entitled to any rights that the laws protect.  Would you want your state officials to say: “It’s not our job to second guess the federal government?”   Or would you hope and pray that your state would stand up, assert its sovereignty, and protect you and fellow citizens from harm?

When was Nullification Used in our History? 

1).  1796 – The Alien & Sedition Act

2).  1832 – The “Abominable” Tariffs of 1828 and 1832  (leading to “The Nullification Crisis”)

3).  1854 – Nullification of the Fugitive Slave Law of 1850 by the Wisconsin Supreme Court

4).  2007 – Montana passed the “Real ID Nullification” Bill

5).  2008 – Montana passed a resolution in anticipation of the District of Columbia v. Heller decision (2nd amendment)

6.  2012 – Virginia passed an NDAA Nullification Bill  (effective July 1st)

1796 – ALIEN & SEDITION ACT:

When John Adams was elected president in 1796, tensions were very strained between the United States and France. It quickly escalated to the Quasi War (as it was called; an undeclared war) which would last until 1800.  During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. [The Naturalization Act, the Alien Friends Act, the Alien Enemies Act, and the Sedition Act].  It was the Sedition Act which caused the greatest concern to the Republicans of the day and they challenged it on constitutional grounds.  The Act established fines and jail time for “any person who shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.”

Convictions began to follow.  Many honorable men were silenced under the Sedition Act, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers and newspaper editors, whose livelihoods were built on the critical analyses of government.  As one convicted writer, Thomas Cooper, wrote about the impact of the convictions and subsequent trials: Americans “may learn some useful lessons… they will hold their tongues and restrain their pens on the subject of politics.”

The Sedition Act immediately sent up constitutional red flags to many of our Founders, although it appeared to be partisan in nature.  Congress, dominated by Federalists, pointed to the “General Welfare” and “Necessary and Proper” clauses of the US Constitution for justification to pass these pieces of legislation. The President, John Adams, was a Federalist, and seemed to have no problem with the law.  The Vice President, Thomas Jefferson, was a Republican, and he had a big problem with it.  Even though the Act did not protect him (it protected the President and members of Congress only), it was his opinion that the protections of free speech apply most aggressively for political speech. He believed that when one enters politics, he should expect public criticism.

Jefferson pondered what remedies could be taken against this overtly unconstitutional act, including:  (1) Judicial Review;  (2) Nullification (he called the Sedition Act “a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image”); and  (3) Secession (which he believed was a state’s inherent and natural right, stemming from the principles of self-government and self-determination).  All three, he believed, were viable options.  He felt secession was extreme and judicial review untrustworthy.  The Supreme Court at the time was packed with Federalists and already Jefferson was suspicious of its ability to correctly interpret the Constitution of our Founders. The Court was already looking to the elastic clauses as sources of extra federal power instead of the qualifiers that they were intended to be.  Jefferson was sure it would uphold the constitutionality of the Alien and Sedition Acts. But more importantly, Jefferson saw the Supreme Court as part of the problem. For one, it was itself a branch of the federal government and thus not an impartial arbiter.  As he reasoned, the Supreme Court was a branch of the institution which engaged in a power struggle with the states. Secondly, it was comprised of human beings, who like the rest of mankind, are subject to passions, ambitions, allegiances, whims, and depravities. As he wrote:

“To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”

Thomas Jefferson and James Madison then began a series of correspondence throughout 1798 over their joint concern over the Alien and Sedition Acts, their discussions over the proper state response, and for the future of the constitutional republic.  Jefferson drafted a series of resolutions that addressed several things, including the following: (1) it described the nature of the federal union; (2) it condemned the Alien and Sedition Acts as gross violations of the Constitution; and (3) it considered the proper response to be taken by the states.  In fact, both men drafted separate resolutions.

Jefferson’s resolutions articulated his entire theory of the federal union and therefore explain the nature of our newly-established independent nation.  (ie, It was an exposition of “Jeffersonian” principles). “Every State has a natural right in cases not within the compact (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits. Without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them,” he wrote.  He gave a copy of his resolutions to his friend and neighbor, Wilson Cary Nicholas, who was a member of the Virginia Senate, who also shared them with John Breckinridge, a member of the Kentucky legislature and who just happened to be passing through Virginia at the time. These resolutions, with some modifications, would become Kentucky’s official position on the legitimacy of the Alien & Sedition Acts. They were called “The Kentucky Resolves of 1798,” and they stated, in part:

1.  Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United states, and of amendments thereto, they constituted a general government for specific purposes – delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force;  that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party:  that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

About that same time, James Madison submitted his resolution to the Virginia legislature.  It was called “The Virginia Resolves of 1798.”  In that document, he articulated a specific term for the responsibility that a state has when the federal government oversteps its constitutional bounds.  That term was “Interposition.” The Virginia Resolves of 1798 read, in part:

       Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers)…

The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness…

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…

That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy…..

***  The “certain general phrases” that Madison was referring to are the elastic clauses of the Constitution –  the “Necessary & Proper” clause and the “General Welfare” clause.  I don’t believe they attempted to enlarge the “Commerce” clause at that time.

Jefferson and Madison believed that the other states in the Union would hold the same position and would adopt their resolutions.  But they didn’t.  In fact, in some states, Nullification and Interposition were not well-received at all.  But then again, we have to remember that there was an ideological divide between the Federalists (who seemed willing to sell out the promises made in the state ratification conventions and concentrate power in the federal government) and those, like Jefferson and Madison, who believed in strict interpretation and strict adherence.  In November 1799, the Kentucky legislature approved follow-up resolutions to those of the previous year, for the purpose of addressing the comments of those states who had not received Jefferson’s resolutions favorably.  It was in the Kentucky Resolutions of 1799 that the word “Nullification” was used for the first time in an official document to describe Jefferson’s states’ rights’ remedy:

       Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution:  That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY:  That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST.

Recall the title of this presentation:  “Nullification:  A Concept Whose Time Has Come.”  I would submit that the reason that Nullification wasn’t roundly received by the states at this time – at the end of the 18th century -was because its time just hadn’t come.

THE NULLIFICATION CRISIS of 1832:

In 1824, a high protective tariff was proposed.  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. (The South in fact suspected the tariff was put in place for this very purpose – to benefit Northern industry).

All in all, the South suffered most of the losses from the tariff policy and the North reaped most of the gains and the South accused the government of not being concerned with Southern interests.  In short, the South was impoverished and declining in prosperity while the North was becoming wealthy and very prosperous and the South believed the federal government was allowing it to happen and in fact, escalating the trend because it was  pro-North and anti-South.  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.

Sentiments and protest against the “Tariff of Abominations” were particularly strong in South Carolina.  In December 1828, John Calhoun, South Carolina’s prominent intelligent and political leader, wrote an essay, secretly, entitled “South Carolina Exposition and Protest.”  It was published anonymously. In it, Calhoun criticized the concept of a protective tariff, arguing that tariffs should only be used to raise revenue, not to artificially boost business in certain regions of the nation. He called South Carolinians “serfs of the system” and urged that it was the state’s duty to interpose and “arrest the progress of evil.”  (Madison’s words from The Virginia Resolves of 1798).  Calhoun asserted that the states had a constitutional right to nullify any federal government actions they considered unconstitutional. (Calhoun called it a “veto”).  In part, the essay read:

“No government based on the naked principle that the majority ought to govern, however true the maxim in its proper sense and under proper restrictions, ever preserved its liberty, even for a single generation.  The history of all has been the same, injustice, violence and anarchy, succeeded by the government of one, or a few, under which the people seek refuge, from the more oppressive despotism of the majority. Only those governments only which provide checks, which limit and restrain within proper bounds the power of the majority, have had a prolonged existence, and been distinguished for virtue, power and happiness.  Constitutional government and the government of the majority are utterly incompatible, it being the sole purpose of a constitution to impose limitations and checks upon the majority.  An unchecked majority is a despotism…..

After due forbearance on the part of the State, that it will be her sacred duty to interpose her veto; a duty to herself, to the Union, to present, and to future generations, and to the cause of liberty over the world, to arrest the progress of a power, which, if not arrested, must in its consequences, corrupt the public morals, and destroy the liberty of the country.

To avert these calamities, to restore the Constitution to its original purity, and to allay the differences which have been unhappily produced between various States, and between the States and General Government, we solemnly appeal to the justice and good feeling of those States heretofore opposed to us…”

In 1828, Andrew Jackson was elected president. His vice-president was John Calhoun.  Jackson, who is considered the father of the Democratic Party, was a strong supporter of a strong federal government. He did not know that Calhoun was a supporter of Nullification and States’ Rights and in fact, he didn’t find out about Calhoun’s “South Carolina Exposition and Protest” until 1831.  Also in 1831, Calhoun took the opportunity  in as president of the Senate (his role as VP) to offer his opinion to the body as to the proper relationship between the federal government and states:  “Stripped of all its covering, the naked question is, whether ours is a federal or a consolidated government; a constitutional or absolute one; a government resting ultimately on the solid basis of the sovereignty of the States, or on the unrestrained will of a majority; a form of government, as in all other unlimited ones, in which injustice, violence, and force must ultimately prevail.”

It was surprise that there was an ideological falling-out between Jackson and Calhoun.  In fact, it soon became known that Jackson would not ask him to be in running mate in the upcoming 1832 election.  Martin Van Buren would be the choice.  By mid 1831, Calhoun resigned his position as vice-president and returned to South Carolina where he planned to challenge the tariff.  On July 26, he delivered a powerful address – called the Fort Hill Address – on the topic of Interposition.

In 1832, Congress passed another tariff which was also protective in nature and also harmful to the South’s interests.  Calhoun’s determination became stronger.

In November 1832, Andrew Jackson was re-elected.  Upon learning of the election results, a convention of the delegates of the people of South Carolina was called, with Mr. Hayes as its president, and at its conclusion was put forth an Ordinance of Nullification. The exact title read: “An Ordinance to Nullify Certain Acts of Congress of the United States Purporting to be Laws Laying Duties and Imposts on the Importation of Foreign Commodities.”  After the convention convened, the state legislature elected Hayes as Governor of the commonwealth.  He resigned his Senate seat to assume the position. Calhoun was selected to replace Haynes. The Ordinance of Nullification forbade all authorities (state and federal) within the borders of South Carolina to enforce the payment of duties imposed by the tariff laws and stated that no case based on law or equity, decided in the courts of South Carolina and touching on the authority of the Ordinance or the validity of the acts of the legislature for giving effect to it, would be permitted to be appealed to the Supreme Court of the United States.  The exact words of the Ordinance read:

And we, the people of South Carolina, to the end that it may be fully understood by the Government of the United States, and the people of the co-States, that we are determined to maintain this, our Ordinance and Declaration, at every hazard, Do further Declare that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider the passage by Congress, of any act… to coerce the State, shut up her ports, destroy or harass her commerce, or to enforce the acts hereby declared null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union: and that the people of this state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate Government, and do all other acts and things which sovereign and independent States may of right do….

The Ordinance of Nullification reached President Jackson on December 1st and on the 10th, he issued a proclamation to the people of South Carolina – The Nullification Proclamation.  He warned that they should use their better judgment and denounce the Ordinance.  The Proclamation stated that states and municipalities are forbidden from nullifying federal laws because the federal government was the supreme power in the United States.  Jackson repudiated the idea that any state could “annul a law of the United States, arguing that nullification was “incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.”  Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861.  Webster said nullification amounts to defiance to the US Constitution and on the US House floor proclaimed that the Union is inseparable. Lincoln proclaimed the Union to be perpetual and therefore secession was an act of overt anarchy which the federal government could not tolerate.

Andrew Jackson denounced the idea that a state could “annul a law of the United States.”  Jackson was a nationalist.  He believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. He also believed that the Constitution had been established among the “people of the United States” in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.

In retaliation to the actions of South Carolina, Congress passed the Force Bill which gave the President the power to use military force to subordinate states and force them to obey all federal laws. President Jackson immediately sent US Navy warships to Charleston Harbor.

Congress then scrambled to introduce a “Compromise Tariff Bill” which would phase the tariff rate back to acceptable rates within 10 years.  Calhoun, who was then a SC Senator, voted for the bill. The state of South Carolina then rescinded its nullification of the tariffs and thus the crisis which threatened military force and even secession was averted.  But out of principle, South Carolina went on record to nullify the Force Bill.

But the compromise wouldn’t last, for Lincoln ran on a platform in 1860 to raise the tariff to its 1832 rate.

Although the crisis was avoided, President Jackson continued to distrust South Carolina and the other southern states.  To him, it wasn’t about the preservation of Liberty. He believed their goal was the destruction of the Union and the destruction of the government. He was in favor of a supreme federal government and the southern states were not.  He believed the tariff issue was merely a ruse to undermine the government’s supremacy. In fact, he publicly espoused these views.  He warned his countrymen that slavery would be the next “pretense” used by the “conspirators” (as he called the southern states) to destroy the nation.

The South, however, continued to express the opinion that slavery would ultimately be abolished. The Southern states generally felt that slavery was only to be regarded as a “choice of two evils” – an “unfortunate inheritance” to be “endured so long as it must be endured,” and “to be abolished just as soon as it could be done so safely.”

In 1832, it could be argued that Nullification was used successfully. The South wanted to abolish the tariffs which were harming its economy and the compromise bill of 1832 addressed that problem.  It was never the position of South Carolina at that time to dissolve its bonds with the other states.  John Calhoun stressed that South Carolina never wanted or intended to break away from the Union.  Rather, he advanced the position of state interposition as a way for the country to address its problems so that extreme measures like secession could be avoided.  Unfortunately, because Calhoun just happened to be a strong proponent of slavery and a white supremacist, he has been looked upon as the instigator or “father” of secession.  Nullification and interposition have been associated with the efforts to perpetuate slavery.  Yet the issue was the conduct of the government which served to advance the interests of the North at the expense of the South.  The South believed the government, as a common agent, was supposed to look after each state’s interests equally.

Other southern states did not pursue nullification as South Carolina did, even though they too were harmed by the tariffs.  I submit that again, the time was not quite right for Nullification.  The country was splintering over the issue of slavery at the time.  It was probably very hard for states to appreciate the value of nullification and interposition in advancing state sovereignty, rather than simply advancing slavery.

NULLIFICATION OF THE FUGITIVE SLAVE LAW in 1854:   ***  This is a story that the government most certainly doesn’t want taught in schools.

In 1850, Congress made a series of compromises to the South in order to hold the Union together against the divisive issue of slavery. This was known as the Compromise of 1850.  Since the preservation of the Union (Northern control of the South’s economy), rather than the abolition of slavery was foremost in the minds of influential Republican bankers, manufacturers and heads of corporations, this compromise made perfect sense.

Part of this compromise was the passage of more stringent fugitive slave legislation that compelled citizens of all states to assist federal marshals and their deputies with the apprehension of suspected runaway slaves and brought all trials involving alleged fugitive slaves under federal jurisdiction. It included large fines for anyone who aided a slave in their escape, even by simply giving them food or shelter. The act also suspended habeas corpus and the right to a trial by jury for suspected slaves, and made their testimony non-admissible in court. The written testimony of the alleged slave’s master, on the other hand, which could be presented to the court by slave hunters, was given preferential treatment.

Joshua Glover was a slave in Missouri who managed to escape from his master. In 1854, with the help of the Underground Railroad, he made his way north, all the way to Wisconsin. There he found work at a mill in Racine, a community in which anti-slavery sentiment ran high. Unfortunately for Glover, his former master, B.S. Garland eventually managed to find out where Glover had taken up residence.

Accompanied by two US Marshals, the three of them took Glover by surprise. In spite of his resistance, Glover was subdued with a club and handcuffed. Thrown into a wagon, he was surreptitiously transported to Milwaukee, where he was thrown in jail. Glover’s abduction was discovered somehow or another, however, and in no time one hundred or so men landed by boat in Milwaukee.

The men marched towards the courthouse, which was adjacent to the jail, and crowds of people began to join their ranks or follow along as spectators. An abolitionist named Sherman Booth rallied the supporters of the citizen army shouting:  “All freemen who are opposed to being made slaves or slave-catchers turn out to a meeting in the courthouse square at 2 o’clock!”

When the meeting at the courthouse adjourned, those who had assembled eventually resolved that Joshua Glover was entitled to at least two things: A writ of habeas corpus and a trial by jury. A local judge concurred and delivered the writ to the US Marshals at the jail. As might be expected, the federal officers rejected the writ as invalid because of what?  –  The Supremacy Clause. …  because of the blind understanding that federal law trumps state judicial action.

In fearless defiance, the abolitionists broke down the doors of the jail and freed Joshua Glover. In an act that probably would have filled Sheriff Apaio with joy, had he been there, the Racine County Sheriff arrested Glover’s former slave master and the two US Marshals who had kidnapped him. They were charged with assault and put jail. In the meantime, the Underground Railroad assisted Joshua Glover as he crossed the border into Canada.

Also, Booth and two other men were arrested and indicted by a grand jury for violating the Fugitive Slave Law. Booth maintained that he had never incited the crowd to liberate Glover or that had helped Glover escape.

The case ultimately went to the Wisconsin Supreme Court which found Booth NOT GUILTY.  Speaking not only for Wisconsin, but of all the states, the judge (Judge Smith) said that they would never accept the idea that:

“..an officer of the United States, armed with process to arrest a fugitive from service, is clothed with entire immunity from state authority; to commit whatever crime or outrage against the laws of the state; that their own high prerogative writ of habeas corpus shall be annulled, their authority defied, their officers resisted, the process of their own courts condemned, their territory invaded by federal force, the houses of their citizens searched, the sanctuary or their homes invaded, their streets and public places made the scenes of tumultuous and armed violence, and state sovereignty violated.  Such shall not become the degradation of Wisconsin, without meeting as stern a resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and maintaining the dignity and sovereignty of their state.”

In other words, the Wisconsin state supreme court took the position that the Fugitive Slave Law was unconstitutional because it violated the rights of the states under the Tenth Amendment.  States, or its officers and agents, could not be coerced by the federal government into denying fundamental human rights to slaves who have escaped.

The United States Supreme court eventually reversed the decision of the Wisconsin Supreme Court, and Booth and one other man accused of helping to liberate Joshua Glover were found guilty.  Both spent only a few months in jail and had to pay some fines.  But the state of Wisconsin did not back down from its opinion of the Fugitive Slave Law or its belief that as a state, it had no obligation to cooperate with federal agents.

As it turned out, Wisconsin, Connecticut, Rhode Island, Massachusetts, Michigan, Maine, and Kansas all went on to pass nullification legislation designed to neutralize federal enforcement of the Fugitive Slave Act of 1850.

2007 – MONTANA PASSED the “REAL ID NULLIFICATION” BILL – 

On February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, “the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state.”

The Real ID Act of 2005 imposed federal requirements on state drivers’ licenses and therefore posed the threat of turning our state driver’s licenses into a genuine national identity card and impose new burdens on everyone, and especially state governments. At least 25 states have passed laws or resolutions so they won’t participate in the program and Congress has introduced bills to repeal it.

I use this particular example in 2007 to show that states are defying the federal government and using the word “Nullification” in protective actions from their legislatures.

MONTANA PASSES RESOLUTION in ANTICIPATION OF SUPREME COURT’S DISTRICT OF COLUMBIA v. HELLER DECISION

Here is something else you didn’t learn in school or hear on the news.

Back in 2008, the Supreme Court heard the landmark case District of Columbia v. Heller which was the first time in seventy years that the high Court heard a case regarding the central meaning of the Second Amendment and its relation to gun control laws.  The District of Columbia passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger locked.  A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government claimed the 2nd Amendment only applies to militias, such as the National Guard, and is not an individual right.  The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed and then the case went to the Supreme Court.

After the Court heard oral arguments and while it was deliberating, the Montana State Legislature passed a resolution – H.J. 26 – asserting its state sovereignty and announcing that if the Supreme Court didn’t uphold the 2nd Amendment as an individual right to have and bear arms, then the state of Montana would consider it a fatal breach of the Compact and therefore it would nullify and void its bonds with fellow states. In other words, it threatened secession if the Supreme Court took away gun rights.

The Montana Resolution was introduced on February 17, 2009, by MT Rep. Mike More, as H.J. 26.  Montana thus joins the recent wave of fiery state sovereignty resolutions. And as with the New Hampshire Resolution, the Montana resolution borrows heavily from Jefferson’s Kentucky Resolutions of 1798, and then lists particular acts that would nullify the Constitution and void the compact by which Montana became a state – that is a threat to secede if the feds step too far.  Here is an excerpt:

(21)  That any act by the Congress of the United States, Executive Order of the President of the United States, or Judicial Order of the United States that assumes a power not delegated by the federal Constitution and Bill of Rights diminishing the liberty of this state or its citizens constitutes a Nullification of the federal Constitution and Bill of Rights by the government of the United States, which would also breach Montana’s “Compact With the United States.”

Acts that would cause a nullification and a breach include but are not limited to:

(a) establishing martial law or a state of emergency within a state without the consent of the legislature of that state;

(b) requiring involuntary servitude or governmental service other than a draft during a declared war or pursuant to or as an alternative to incarceration after due process of law;

(c) requiring involuntary servitude or governmental service of persons under the age of 18 other than pursuant to or as an alternative to incarceration after due process of law;

(d) surrendering any power delegated or not delegated to any corporation or foreign government;

(e) any act regarding religion, further limitations on freedom of political speech, or further limitations on freedom of the press; or

(f) any act regarding the right to keep and bear arms or further limitations on the right to bear arms, including any restrictions on the type or number of firearms or the amount or type of ammunition any law-abiding citizen may purchase, own, or possess.

(22)  That if any act of Congress becomes law or if an Executive Order or Judicial Order is put into force related to the reservations expressed in this resolution, Montana’s “Compact With the United States” is breached and all powers previously delegated to the United States by the federal Constitution and Bill of Rights revert to the states individually.

New Hampshire introduced a similar resolution asserting its sovereignty.  On March 2009, it introduced a resolution titled: “A Resolution affirming States’ Rights Based on Jeffersonian Principles.”   As with the Montana Resolution, the NH resolution borrowed language heavily from Jefferson’s Kentucky Resolves of 1798 and listed those acts of the federal government which would cause a fatal breach of the compact holding the state in the Union.  It failed to pass by only a few votes.

Virginia’s NDAA Nullification Bill Takes Effect July 1st (2012)

Virginia passed an NDAA Nullification bill – H.B. 1160 – to protect Virginians from the enforcement of the NDAA, and Governor Bob McDonnell signed in into law (effective July 1st)

Other states are submitting or passing nullification resolutions or bills in their legislatures.  Additionally, county board of commissioners and even local Sheriff’s departments are passing such resolutions.  The NDAA is clearly worthy of being called an “Intolerable Act” – a title given to those acts of King George to suppress the colonies into submission to England.

Nullification: A Concept Whose Time Has Come

Perhaps the time has finally come for Nullification to become the remedy to fix our government and re-establish the proper scheme and the principles on which our country was based.

As of August 4, 2010, at least 40 states have declared their sovereignty with 10th Amendment Resolutions.  Rep. Glen Bradley of North Carolina introduced a similar resolution (House Resolution 34) but it currently sits in the Judiciary Committee (where bills “go to die.”)

We are in a constitutional crisis, there can be no doubt.  One can even argue that we no longer have a legal government.  Too bad more Americans weren’t paying attention in 2009, when Obama gave us a glimpse of his plans for this country.  Addressing an audience at Georgetown University, he talked about his vision of America’s future that is “far different than our troubled economic past….’   He talked about his new ‘foundation’ and the task he faced of re-building this country, according to the policies that his administration designed. He used such words as “reform” and “transform.” He talked about needing “new legal authority” to make the changes necessary. He said that the Reagan model (that is, of limited government) was not a sustainable model for long-term prosperity.”   In other words, the Constitution was not a workable model and it would have to go.  That’s been his plan.  He’s been trying to kill the Constitution ever since.

We feel the effects of a country that is no longer ruled by a government that abides by constitutionally limited authority.  We feel it personally, in areas we hold dear such as privacy, the right to manage our own healthcare, the right of religious conscience, the right to be safe from the harmful effects of uncontrolled immigration, and the right to be secure from unwarranted government surveillance programs. The thought of drones patrolling our nation’s skies is something we could have never imagined.

Aside from the creation of the Federal Reserve (a cartel of private bankers who control the supply of money in this country and therefore the state of the economy; in violation of Article I, Section 8), the election of Senators by popular vote rather than by the state legislature (in violation of our doctrine of Dual Sovereignty), the progressive income tax (in violation of Article I, Section 9; the 16th amendment was never legally ratified), the use of executive orders (to get around the rule-making authority and process of Congress), and liberal Supreme Court decisions (Swann v. Charlotte-Mecklenburg Board of Education (1971), which forced busing on public school systems to achieve racial quotas, and the “Affirmative Action” decisions which “authorized discrimination to end discrimination” in violation of the 14th Amendment; Roe v. Wade (1973) which puts the right of a woman to control her fertility over the Life and Liberty rights of the unborn; Everson v. Board of Education of the Township of Ewing (1947) which introduced the term “Wall of Separation” and instructed that “The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.”; Hamdi v. Rumsfeld (2004) which held that although the language that Congress used in the Authorization of Use of Military Force (AUMF) allows American citizens to be detained in a narrow set of circumstances – for example, if identified as an “enemy combatant” – detainees must have a chance to challenge that detention), there are numerous other violations that have turned the our constitutional principles of separation of powers and checks and balances on their heads and have taken us outside the realm of constitutional governance.

Here are just some recent violations:

1).  The Patriot Act.  Just six weeks after the terrorist attacks of September 11, 2001, Congress adopted the Patriot Act.  Enacted with the best intentions and in response to a serious threat, the Patriot Act passed under intense time pressure and without serious debate.  Certainly, our government needs tools to prevent terrorism. And to the extent laws unduly tied the hands of those who protect us, those laws needed to be amended.  But as so often happens in time of crisis, the pendulum swung too far. The Patriot Act didn’t just encourage information sharing so intelligence agencies could “connect the dots” to prevent the next attack.  The Act gave the Executive Branch broad discretionary powers that are not needed in the fight against terrorism and serve only to infringe on Americans’ fundamental liberties.  The Patriot Act has served to usher in a new era of Domestic Spying.  The NDAA (see below), which identified the “whole world” as a battlefield in this War on Terror, has hinted that there is no foreseeable end to this “war.”  (There is also no identifiable “enemy” as well, since “terror” is a tactic; an ideology).  Since there is no time frame and no geographical boundaries, the Patriot Act is simply the necessary starting point for more aggressive “tools” to go after “really bad guys.”

2).  Czars. Article II, Section 2 grants the president authority to appoint “inferior” officers, but those managers may not have any regulatory, legislative or law-making powers; such powers are reserved to the legislative branch.  Today’s “czars” have the power of cabinet members without having to go through a vetting process or the confirmation process prescribed for cabinet members. Czars are unelected and untouchable political decision-makers — in violation of Article 1, Section 1 (“All legislative powers shall be vested in a Congress of the United States.”)

3).  The Individual Mandate. The individual Mandate is a requirement that every American purchase health insurance, on penalty of civil fine. The individual mandate is unprecedented and exceeds Congress’s power to regulate interstate commerce. If it is allowed to stand, Congress will be able to impose any kind of economic mandate as part of any kind of national regulatory scheme. The present administration has interpreted the Commerce Clause to be another blank check of authority over commerce, industry, activities, and human conduct.  It has interpreted it to be a license to compel people into the stream of commerce when it serves the government’s purpose.

4).  Showdown with the Church.  Under the President’s new healthcare initiative, churches must violate their teachings and rights of religious conscience, in violation of the First Amendment, by paying for contraceptive services and even the morning-after abortion pill.  The Catholic Church is so threatened by the conduct of the Obama administration that it called a Conference of Catholic Bishops to discuss what they need to do and they have declared a two-week period entitled “Fortnight for Religious Freedom” (June 21-July 4th) for churchgoers and believers to pray for our rights of religious conscience and to continue to exercise that right as we pray, witness, educate ourselves and others as to its meaning, and re-evaluate its value in our lives as citizens and its value to our communities. On July 4th, the church bells will sound loudly for religious freedom.

The government has used the “Wall of Separation” as grounds for its healthcare initiative.  The “Wall of Separation” is a legal fiction, created by a progressive Supreme Court, embodied by a “living constitution” and not the Constitution given to us by our Founders.  [Note:  The letter written by Thomas Jefferson to the Danbury Baptists read: “Believing with you that religion is a matter which lies solely between Man and his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between Church and State.”    It is abundantly clear from the letter that the very prohibition against legislation creating an official church is itself the “wall of separation.”  There appears no other obligation on the part of government.  I never could understand why Justice Hugo Black, who wrote the infamous decision in Everson v. Board of Education of the Township of Ewing (1947), chose to cite Jefferson’s letter to the Danbury Baptists, which was written in 1802, for legal authority rather than his “Virginia Bill for Religious Liberty” (1777) which would be adopted by the Virginia legislature (in 1786; becoming known as the Virginia Statute for Religious Freedom), because it was that Bill and Statute which would become our First Amendment.  That would make more legal sense than a letter, which can easily be taken out of context.  Letters are not proper legal authority.  Statutes and bills are proper authority because there are records on file with the legislatures when they are discussed and debated.

5).  Targeted Killing of American Citizens.  By the President’s hand, and using information that only he and his Executive “team” have had access to, three American citizens have been assassinated without the benefit of having been charged with a crime or seeing the evidence against them.

6).  Immigration.  The President is refusing to execute the immigration laws, which are a fundamental responsibility of the federal government (Article I, Section 8, clause 4).  And worse, when individual states have attempted to deal with the crime and other negative effects caused by uncontrolled immigration and the inactivity of government, the US DOJ has filed lawsuits to block their efforts and declare their laws unconstitutional.

7).   Exemption of a Class of Persons from Federal Immigration Laws.  The President recently announced that a class of illegal immigrants – those who are young and getting an education – will be exempt from being deported and can remain in the country for at least 2 years.  He declared this exemption by memorandum (or by press conference?).  Only Congress has the constitutional authority to regulate immigration and naturalization. In fact, it only has authority to “establish uniform rules.”  The Executive cannot make laws.

8).  The NDAA.  (The courts are implicated in this as well).  This bill permits the Executive to do an end-run around the Constitution and label Americans as “enemy combatants” so that their fundamental rights under the Bill of Rights can be indefinitely suspended.  The Constitution directs that the rightful remedy is Treason, which would still give the person his day in court.  Under the NDAA, the President can order the following on any American he and his team can make up evidence against: indefinite detention, imprisonment, torture, and even assassination.

9).  Drones.  It has been estimated that there will be thousands of drones patrolling the skies by 2014 and working intimately with local law enforcement agencies. The drones will have the sensitivity to find marijuana plants growing in peoples’ backyards.  Individuals in the United States have the freedom under the 4th Amendment to be free from unwarranted government searches and seizures.

10).  Second Amendment.  It is no secret that the Obama administration and other Democratic administrations favor gun control laws.  Gun control laws violate the second amendment.  We are very close to losing this fundamental individual right – this right which is intended to “enforce” all the other rights protected by the Bill of Rights.  As explained earlier, back in 2008, the Supreme Court heard the landmark case District of Columbia v. Heller, which was the first time in seventy years that the high Court justices agreed to hear a case regarding the central meaning of the Second Amendment and its relation to gun control laws.  The District of Columbia had passed legislation barring the registration of handguns, requiring licenses for all pistols, and mandating that all legal firearms must be kept unloaded and disassembled or trigger-locked.  A group of private gun-owners brought suit claiming the laws violated their Second Amendment right to bear arms. The government’s position was that the Second Amendment is not an individual right and only applies to militias, such as the National Guard. The federal district court in DC sided with the government and upheld the federal ban on private gun ownership. The Court of Appeals reversed and then the case went to the Supreme Court.  The Supreme Court, in a close 5-4 decision (with Justice Kennedy voting with the conservative block), held that the Second Amendment protects an individual right to possess a firearm unconnected with service in a militia and to use that firearm for traditionally lawful purposes, such as self-defense within the home. It found support for that interpretation in the clause’s history, including in the discussions made at the state ratifying conventions.  The liberal members of the Court wrote a dissenting opinion stating that that the Second Amendment only protects the rights of individuals to bear arms as part of a well-regulated state militia, not for other purposes even if they are lawful.  Justice Ginsberg has gone on public record urging proponents of gun-control laws to bring the issue back to the Court “after President Obama has had a chance to appoint new justices in his second term” so that they can “get it right this time.”

I think the time has come.  Our republic demands it.

Clearly, nullification is growing and being applied.  One only has to google “Nullification” to see how popular it is becoming.  Thomas Woods has a Nullification tour every year, there are radio shows which talk about it (Nullify Now), and there are local efforts to educate people.  Recently, nullification has been used to nullify Real ID, federal wildlife laws, the NDAA, federal gun laws, medical marijuana laws, Cap and Trade, federal legal tender laws, and Obamacare.

States have passed or introduced “Firearms Freedom” bills (which says that as long as guns are made and retained within the state, they are outside the reach of the government’s commerce clause powers) and “Sheriffs First” legislation, which would make it a state crime for any federal agent to make an arrest, search, or seizure within the state without first getting the advanced, written permission of the elected county sheriff of the county in which the event is to take place.  (Arizona has passed such a law and Tennessee and New Hampshire have each introduced one. Montana failed to pass theirs. Rep. Glen Bradley has introduced such a bill in the NC Legislature).  Other efforts include State Sovereignty Resolutions, which assert state sovereignty under the Tenth Amendment and list offenses by the federal government which they consider so serious as to dissolve their bonds with the Union, “Bring the Guard Home” Resolutions, which assert that the Constitution does not provide for deploying state militia (now called the National Guard) outside the country and therefore those troops must be brought home, and Federal Tax Funds legislation, which would require that all federal taxes come first to the state’s Department of Revenue where a panel of legislators would assess the constitutionality of the Federal Budget and then forward to the federal government a percentage of the federal tax dollars that are Constitutionally-justified  (the remainder of those tax dollars would either be kept for the state or returned to the people be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people).  And finally, other states just simply are refusing to cooperate or recognize the legitimacy of federal policies (such as the DOJ blocking Voter ID laws or demanding, as it has with Florida, to stop going thru its voter rolls and purging them of ineligible voters).

On June 12, 2012, the Justice Department filed suit against Florida to block its effort to purge its voter rolls of non-U.S. citizens and to stop further attempts before the November election.  Governor Rick Scott said Florida will refuse to comply.  He defended the purge as an effort to protect Florida citizens from having their votes diluted by those ineligible to vote. He points to data compiled by comparing drivers’ license records with voter registration records which showed that as many as 182,000 registered voters may not be legal US citizens.  Holder claims the purge unfairly targets illegal Latino residents.

Florida is filing suit now against the US Department of Homeland Security, claiming the federal government is frustrating their efforts and denying the state access to a database that would allow it to verify the citizenship of registered voters. By law, the government has to allow states access to the database.

Conclusion:

Nullification is a doctrine whose time has finally come.  Why do I say that?  Because at least forty (40) states currently recognize Nullification as a viable state remedy and are using it in some way to push back against the federal government.  These states include:  AZ, AL, AK, AR, CA, CO, GA, HI, ID, IN, KS, LA, ME, MI, MN, MO, MT, ND, NH, NV, OK, PA, SC, SD, TN, TX, UT, WA, and WY.  Unfortunately, my state of North Carolina is not on that list.

The future of our republic depends on whether we can put aside political and ideological differences and reel in the power and the scope of of the federal government.

Recommended Reading:
Thomas Woods, “Nullification: How to Resist Federal Tyranny in the 21st      Century” (2010).
Thomas Jefferson, The Kentucky Resolves of 1798
Thomas Jefferson, The Kentucky Resolves of 1799
James Madison, The Virginia Resolves of 1798
James Madison, The Virginia General Assembly Report of 1800
John Calhoun’s Fort Hill Address, July 26, 1831
Diane Rufino, “Nullification and the National Defense Authorization Act (NDAA)”

APPENDIX:   Current Nullification Efforts:
–  10th Amendment Resolutions
–  1oth Amendment Bills
–  Firearm Freedom Act
–  Medical Marijuana Act
–  REAL ID Nullification bills
–  Healthcare Freedom legislation
–  NDAA Nullification resolutions or bills
–  Bring the Guard Home laws
–  Cap and Trade Nullification resolutions or bills
–  Constitutional Tender laws
–  Federal Tax Funds Act
–  Sheriffs First legislation
–  nullification of federal gun laws
–  nullification of regulation of intrastate commerce

Potential Future Efforts:
–  Health Care Nullification
–  Patriot Act
–  No Child Left Behind
–  State-Initiated Constitutional Amendments

What These Efforts Are:

10th Amendment Resolutions:  10th Amendment Resolutions are often referred to as “State Sovereignty” Resolutions.  They are non-binding resolutions and do not carry the force of law. Instead, they are intended to be a statement of the legislature of the state. They play an important role, however. If you owned an apartment building and had a tenant not paying rent, you wouldn’t show up with an empty truck to kick them out without first serving notice. That’s how we view these Resolutions – as serving “notice and demand” to the Federal Government to “cease and desist any and all activities outside the scope of their constitutionally-delegated powers.” Follow-up, of course, is a must.

10th Amendment Bills: Unlike the many 10th Amendment Resolutions that have been introduced around the country since 2008, these “10th Amendment” or “State Sovereignty” bills are proposals for binding legislation. They include language to affirm the sovereignty of the people of the state and to create a commission or a committee to review the Constitutionality of acts emanating from the federal government.

Firearms Freedom Act: Originally introduced and passed in Montana, the FFA declares that any firearms made and retained in-state are beyond the authority of Congress under its constitutional power to regulate commerce among the states. The FFA is primarily a Tenth Amendment challenge to the powers of Congress under the “commerce clause,” with firearms as the object.

Medical Marijuana Laws: An honest reading of the Constitution with an original understanding of the Founders and Ratifiers makes it quite clear that the federal government has no constitutional authority to override state laws on marijuana. All three branches of the federal government, however, have interpreted (and re-interpreted) the commerce clause of the Constitution to authorize them to engage in this activity, even though there’s supposedly no “legal” commerce in the plant. At best, these arguments are dubious; at worst an intentional attack on the Constitution and your liberty.

REAL ID Act:  Led by Maine in early 2007, 25 states over the past 2 years have passed resolutions and binding laws denouncing and refusing the implement the Bush-era law which many expressed concerns about privacy, funding and more. While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void.

Health Care Freedom Act: The Health Care Freedom Act is considered in states as either a bill or a state constitutional amendment – effectively prohibiting the enactment of any new government-run healthcare programs within the state. While many of the bills have language similar to true nullification legislation, many of them are promoted solely as a vehicle to drive a federal court battle – which is not nullification in its true sense.

Bring the Guard Home: Under the Constitution, the militia (now called the National Guard) may only be called into duty by the federal government in three specific situations. According to Article I, Section 8; Clause 15, the Congress is given the power to pass laws for “calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions.” The militia was intended by the Founders and Ratifiers to be defense force and nothing more. Deployments outside the country were not considered, and neither were internal deployments in pursuance of powers that were not delegated to the federal government. Congress has passed numerous laws in the past 100 years giving the federal government additional authority not mentioned in the Constitution. But, without amendment, altering the enumerated powers by legislative fiat is, in and of itself, unconstitutional. Campaigns in states around the country are working to reassert the authority of governors over guard troops.

Constitutional Tender: The United States Constitution declares, in Article I, Section 10, “No State shall… make any Thing but gold and silver Coin a Tender in Payment of Debts.” Constitutional Tender laws seek to nullify federal legal tender laws in the state by authorizing payment in gold and silver or a paper note backed 100% by gold or silver,

Cap and Trade: Cap and Trade is often claimed to be authorized under the Commerce Clause of the Constitution. At best, this is a highly dubious claim. This interstate regulation of “commerce” did not include agriculture, manufacturing, mining, or land use. Nor did it include activities that merely “substantially affected” commerce.

State Sovereignty and Federal Tax Funds Act: Such laws would require that all federal taxes come first to the state’s Department of Revenue. A panel of legislators would assay the Constitutional appropriateness of the Federal Budget, and then forward to the federal government a percentage of the federal tax dollars that are delineated as legal and Constitutionally-justified. The remainder of those dollars would be assigned to budgetary items that are currently funded through federal allocations and grants or returned to the people of the state.

Sheriffs First Legislation: A “Sheriffs First” bill would make it a state crime for any federal agent to make an arrest, search, or seizure within the state without first getting the advanced, written permission of the elected county sheriff of the county in which the event is to take place.

Federal Gun Laws Nullification: As codified in law with the 2nd Amendment, the People did not delegate the power to regulate or control the ownership of firearms to the federal government. And, as the 10th Amendment makes clear, all powers not delegated to the federal government are reserved to the States or to the People themselves.

Nullification of Federal Intrastate Commerce Regulation: As understood at the time of the founding, the regulation of commerce was meant to empower Congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines. These bills attempt to reassert this original meaning of the commerce clause over wide areas of policy and effectively nullify federal laws and regulations that violate such limitations by regulating commerce and other activities that are solely intrastate.

References: Diane Rufino, “Nullification and the NDAA,” May 31, 2012.  Referenced at:  http://forloveofgodandcountry.wordpress.com

Diane Rufino, “What is the Significance of the Constitution and Can Nullification Save It?” February 2012.  Referenced at:  http://forlovegodandcountry.wordpress.com

“South Carolina Exposition and Protest,” Civil War Documents.  Referenced at:  http://www.sewanee.edu/faculty/Willis/Civil_War/documents/SCExposition.html

John C. Calhoun, “Fort Hill Address: On the Relations of the States and the Federal Government,” in the book: Union and Liberty: The Political Philosophy of John C. Calhoun, ed. Ross M. Lenace (Indianapolis: Liberty Fund, 1992).  Referenced at The Online Library of Liberty.:  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=683&chapter=107120&layout=html&Itemid=27

Tenth Amendment Center.  Referenced at:  http://www.lewrockwell.com/rep/10-amendment-nullification-movement.html

Derek Sheriff, “The Untold History of Nullification: Resisting Slavery,” The Tenth Amendment Center.  Referenced at:  http://tenthamendmentcenter.com/2010/02/10/the-untold-history-of-nullification/

Robert Hawes, “Nullification Revisited,” Campaign for Liberty, April 4, 2009.  Referenced at:  http://www.campaignforliberty.com/article.php?view=57

Stewart Rhodes, “Montana Introduces Resolution Asserting State Sovereignty and Threatening Secession,”  February 17, 2009.  Referenced at:  http://stewart-rhodes.blogspot.com/

District of Columbia v. Heller, 554 U.S. 579 (2008).

Text of Montana Resolution H.J. 26 –  http://stewart-rhodes.blogspot.com/2009/02/montana-house-joint-resolution-no-26.html

http://statesstand.ning.com/

“Justice Department Sues Florida Over Purging Voter Rolls as Expected, FOX News, June 12, 2012. Referenced at: http://www.foxnews.com/politics/2012/06/12/justice-department-sues-florida-over-purging-voter-rolls-as-expected/#ixzz1xgKZpohu

Jefferson’s Letter to the Danbury Baptists.  Referenced at:  http://www.loc.gov/loc/lcib/9806/danpost.html

Voter ID Laws are About Confidence & Integrity

         by Diane Rufino

What is the purpose of laws?  John Locke taught us that the primary role of government is to protect the sovereign rights of man, namely his Life, Liberty, and Property.  “The end of law is not to abolish or restrain, but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others…”   In other words, laws derive from the laws of nature, particularly human nature.  Laws serve the good in man and punish the evil.  Laws protect the good members of society and therefore encourage such conforming behavior, while punishing and deterring bad conduct.  Therefore, the good of society is served and rightful expectations are rewarded.  Citizens agree to abide by laws with the implied understanding that laws are instituted to protect them and their general liberty interests, as our republic itself is designed.

As we move farther away from the urgent liberty concerns of the Revolutionary War and even the second World War, as we care less and less about how secure our freedoms are, as we care less and less about the warnings our Founding Fathers left for us, and we begin to care more about our high standard of living and our comfort, we see the consequences of that transition…..  envy, irresponsibility, crime, and corruption.

Of course, we all know that we still have a federal system here in the United States, which means that we are a federation of sovereign states with a ‘common’ government which is vested with certain powers to serve those states.  As such, we have a system of Dual Sovereignty.  In those limited areas where the federal government is expressly permitted to legislate, it is supreme and sovereign, and in all other areas, the States themselves are supreme and sovereign. The States, as sovereign entities, have the responsibility to govern itself for the good of its people.  The Free Dictionary defines: “Sovereignty is the power of a state to do everything necessary to govern itself, such as making, executing, and applying laws…”

James Madison, in Federalist No. 45, described the powers reserved to the states so they can govern themselves and their people: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”

The power to regulate and manage the election process is a state power. The power to assure accurate voter records in a state power.

In the developing conscience of human rights, state sovereignty has also come to mean that a state has the sovereign right to “protect” the rights of its citizens.

Unfortunately, when laws become too numerous and detailed, they can destroy liberty just as surely and effectively as having no law.  But sometimes that becomes necessary.  Sometimes, when enough people can’t conform their conduct under the laws and the rights of others suffer, then additional laws and regulations become necessary. We saw this with the Civil Rights Fourteenth amendment, the 1965 Civil Rights legislation, forced integration and bussing, and things like curfews.  Look at the Castle Doctrine, which provides property-owners with greater protection should they happen to shoot a trespasser with evil intent who breaks into their home. With violent crime so clearly on the rise, this law empowers innocent citizens to defend their family and property.  It says that persons should not have to risk the safety of their loved ones by waiting until the last possible moment to discern the intent of someone who has broken into their home.  While the doctrine might result in the death of a trespasser and therefore seem an unfair piece of legislation, it is necessary to safeguard the legitimate rights each person has in self-protection and in protection of his family and property.  Look at the judicially-mandated (racial) desegregation plans that many counties in the South still must adhere to in 2012.  Parents wonder why they can’t have community-based schooling so that class sizes will be smaller, represent their communities, and be more responsive to neighborhood interests and concerns.  These seemingly important concerns are outweighed by the need to have classes achieve racial quotas because of our history of racial intolerance.  Sometimes we just have to look at the totality of the circumstances to understand why we need certain laws and regulations.

Voter ID laws are one such law.

I live in North Carolina and we are currently engaged in a straight Democratic – Republican struggle over a Voter ID law.  Here is where we currently stand.  A Voter ID bill (HB 351 – “Restore Confidence in Government”) was passed last year in both the House and Senate.  It received overwhelming popular support.  But when it went before NC Governor Perdue, she vetoed it.  When the House attempted to over-ride the veto, Democrats refused to cross party lines and therefore, the bill could not be resuscitated.  And there it still stands…  in limbo. North Carolinians recently learned that the Republican leadership might sell the people of the state out by watering down the bill and making its identification provisions essentially meaningless in order that Democrats will sign on.  Although the state legislature knows the will of the people and has heard them loud and clear, they are intent on moving forward with this compromise bill.  Apparently, a bad bill is better than no bill at all.

According to Susan Myrick, a writer for the Civitas Institute, although the compromise has not yet been revealed, the House Republican leadership is determined to search out new language that would meet the approval of at least four Democrats. Four is the magic number in order to be able to over-ride Governor Perdue’s veto.

The cost to gain these four Democratic votes is high, for the new language will have to weaken HB 351 to the point where it would concede the intent of the law and provide very little assurance that voters will prove their identity before voting.  As Myrick has noted, House Speaker Thom Tillis (R-Mecklenburg) has conceded in interviews that the compromise bill will probably contain some of the same provisions provided in a short-lived 2011 compromise to HB 351 which would allow NC voters to use utility bills, bank statements and voter registration cards as acceptable forms of identification. It would also allow voters who did not have any form of ID to show that their signature matched the signature on their voter registration.  (Precinct officials would be the ones to determine whether signatures matched).  I don’t see well at all without my reading glasses.  And sometimes I don’t even see well enough with them on.  I wonder if precinct officials have the same problem.

In order to get only four Democrat votes, North Carolina will have to give up any notion of having a meaningful Voter ID bill in place for November, the election that is lining up to be the dirtiest, most ruthless election of our history.  Ms. Myrick sums up the sentiment of NC voters well in her comment: “It is safe to say that anyone who votes for a voter ID bill that includes any of these elements is not a supporter of true voter photo ID.”

At present, thirty states have laws in place that will require all voters to show some form of identification at the polls this November. That number could rise to thirty-two.  While Mississippi and Wisconsin have enacted Voter ID laws, they have not yet been implemented.  In Mississippi’s case, the strict “Photo ID Amendment” passed by citizen initiative in November 2011 requires both enabling legislation and pre-clearance under Section 5 of the Voting Rights Act before it can be implemented. In Wisconsin’s case, the state’s new strict Photo ID law was passed by the legislature in 2011 and was in effect briefly in the early part of this year until it was declared unconstitutional by a state judge on March 12, 2012.  The state is barred from enforcing the law unless an appeal overturns the March 12 ruling.

Alabama, South Carolina, and Texas all have Voter ID laws on the books but passed more stringent laws in 2011.  Alabama’s new Voter ID law has a 2014 effective date and requires Section 5 pre-clearance, and both Texas and South Carolina were denied pre-clearance for their new Voter ID laws by the U.S. Justice Department.

Of the 32 Voter ID laws that have been enacted, half of them require the voter to produce a photo ID while the other half provide that non-photo forms of ID are acceptable.

So far, North Carolina has no voter identification law.

I know opponents of Voter ID laws believe, or just simply buy into the hype, that requiring a valid identification to vote will somehow disenfranchise certain individuals by denying them the opportunity to vote.  During the debate in 2011 for HB 351, black advocacy groups such as the NAACP claimed that if NC passes such a bill, minority voters will be denied the right to vote. They continue to impress that view upon the House Democrats.  They feed racial paranoia that white establishment is forever looking for ways to keep the black population suppressed. They believe, as Rep. John Lewis (D-Ga) said on MSNBC’s “Hardball” with Chris Matthews, that “voting should be as easy as getting a glass of fresh water.”  To them, any scheme other than that amounts to a poll tax and reinstates Jim Crow.  It impacts and disenfranchises minority voters.

When the bill was being debated last year, Reverend William Barber of the NAACP addressed a crowd at the “Rally Against the Photo ID Bill” in the NC Legislature on April 13.  He told the crowd:  “On April 13, 1963, Reverend Martin Luther King was in a Birmingham jail trying the move the country forward.  And now the radical Republicans in this legislature are trying to take us backwards.”  And yet there are no instances of blacks being denied the right to vote in North Carolina.  Reverend Barber knows full well that the bill is aimed at protecting a process and is not motivated by any racial animus or any intent at all to disenfranchise a single voter.  North Carolina is home equally to people of all colors and ethnicities.

North Carolina’s Voter ID law, HB 351, like so many other state Voter ID laws, is neutral on its face and contains proper default provisions included.  The bill is clear on its face that no person shall be denied the opportunity to vote legally.  The goal of the bill is stated in its title – “Restore Confidence in Government.”  It is not “Voter Disenfranchisement.” It is hard-pressed to see how any voter will honestly be prevented from voting.  The only thing the bill really does is prevent someone from voting using another’s identity. Voter fraud destroys the integrity of that system and undermines the confidence of voters in the system which allows them to participate in their government and which ultimately protects their rights and interests.

The real issue is not voter disenfranchisement but voter nullification. Each illegal and fraudulent vote cancels out the vote of a legal one. The overwhelming number of NC citizens conducts themselves everyday according to the law and they expect that politics should play no part in the process to pass good, common-sense laws for the good of decent, law-abiding citizens. As Justice John Paul Stevens noted in the 2008 US Supreme Court decision – Crawford v. Marion County Election Board, 553 U.S. 171 – which upheld the constitutionality of Indiana’s tough ID law, “requiring a photo ID imposes a minimum burden on voters’ rights, which is justified by state interests.”  I would urge the members of the NC General Assembly to note the significance of Justice Stevens’ decision.  Stevens was one of the more liberal members of the Court yet he recognized fundamental conservative principles and their relationship to one another. It would seem that liberals and conservatives can, in fact, come together on common ground for important issues affecting the concerns of citizens and political processes, without compromising core principles.

In Crawford, Justice Kennedy reflected on the balance of interests that Voter ID laws touch on: The individual’s right to vote and a state’s legitimate interest in managing elections and ensuring their fairness and integrity.  In order for our democratic republic to function and thrive, elections must be free of fraud.  Safeguarding election integrity, therefore, is among the primary functions of state government.  Kennedy wrote: “States have a valid interest in participating in a nationwide effort to improve and modernize election procedures criticized as antiquated and inefficient. They also have an interest in preventing voter fraud in response to the problem of voter registration rolls with a large number of names of persons who are either deceased or no longer live in the state. Such fraud has occurred in many parts of the country.  Indiana’s own experience with voter fraud in a 2003 mayoral primary demonstrates a real risk that voter fraud could affect a close election’s outcome. There is no question about the legitimacy or importance of a State’s interest in counting only eligible voters’ votes. Finally, a State’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic process.”  Kennedy then turned to the potential burden to eligible voters who might lack a photo identification card.  He noted that Indiana’s law provides for free ID cards to those who can show that they can’t afford them, as well as provides for ‘provisional ballots.’  He wrote that because the state provides free cards, “the inconvenience of going to the Bureau of Motor Vehicles, gathering required documents, and posing for a photograph does not qualify as a substantial burden on most voters’ right to vote, or represent a significant increase over the usual burdens of voting. The severity of the somewhat heavier burden that may be placed on a limited number of persons – e.g., elderly persons born out-of-state, who may have difficulty obtaining a birth certificate – is mitigated by the fact that eligible voters without photo identification may cast provisional ballots that will be counted if they execute the required affidavit at the circuit court clerk’s office.  Even assuming that the burden may not be justified as to a few voters, that conclusion is by no means sufficient to establish petitioners’ right to the relief they seek” (which is the invalidation of Voter ID law).

While the case addressed Indiana’s reasons for enacting its Voter ID law, the threat of fraud affecting the outcomes of local elections is very real here in North Carolina.  We’ve all seen elections that have been won or lost by a few votes.  On November 2, 2010, incumbent Washington County Sheriff James Ross won his race against David Hassell by only 4 votes.  There were allegations of voter fraud, with four votes cast in the name of individuals who were deceased, and of voter intimidation, which involved a nursing home in the area for disabled and handicapped persons – the Roanoke Development Center. The Center, as it turned out, was operated by Dr. Zebedee Taylor, the Chairman of the Washington County Democratic Party, and allegations supported by actual testimony showed that residents were intimidated by workers into voting for the democratic ticket (“or you will lose your medical benefits and then what will you do?”).  “The votes cast on behalf of the eleven handicapped voters by unauthorized person or persons did not reflect the expressed choice or the will of the voters.”  On February 25, 2011, the State Board of Elections acknowledged that there were sufficient irregularities to taint the results of the election and ordered a new election. There were prosecutions in the event and no convictions.  In fact, there wasn’t even any media attention.

When I recently brought that bit of information up, as well as the news of at least four persons in Wake County indicted for voter fraud, a blogger responded that “no one cares about the inconsequential few voter irregularities in a two-bit sheriff race.”  Tell that to the citizens of Washington County who are legal citizens and legally entitled to have their votes counted.

Re-do elections cost the state money, erode confidence in the election process, and erode confidence and trust in state officials.

The truth is that when groups sue to block photo ID laws in court, they can’t seem to produce real-world examples of people who have actually been denied the right to vote under such laws. Yet the US Justice Department doesn’t care.  Apparently it is the only law-enforcement agency that doesn’t care about that pesky little thing called “evidence.”  The Justice Department has filed lawsuits against Texas and South Carolina to frustrate attempts by election officials in those states to implement common-sense voter integrity initiatives such as voter ID laws.  And now, of course, they are attempting to block Florida in its attempt to clean up its voter rolls (remove noncitizens) to ensure that they are “accurate and current.”

According to recent opinion polls, 74-75% of Americans – including majorities of Hispanics and African-Americans – support a photo ID requirement for voting.  Also significantly, 52-55% of voters who identify themselves as Democrats support the requirement. In North Carolina, 74% of citizens support the Voter ID bill, with 52% of Democrats believing it is necessary.

The fact is that voter fraud exists. Average, well-intentioned voters understand that in this age of groups like ACORN and mass voter fraud, it is simply common sense to require a person to produce an ID at the polls. Average voters understand how easy it is for people to pretend they are someone else and therefore vote illegally and vote multiple times. This is especially so when voters know (or are informed) that voter rolls/voter files are not routinely purged of those residents who have died or moved.  We’ve seen in states like Alabama, Missouri, South Dakota, Texas, Mississippi, Kentucky, and Indiana that voter rolls exceed the number of citizens/population (living people) in that state.  To reference Haley Joel Osment, the young boy in the Bruce Willis movie “The Sixth Sense”:  “We see Dead People.. everywhere…. and they’re voting!”   So why don’t state legislatures or the US Department of Justice see them?

A recent study by the Pew Research Center found at least 1.8 million dead people are still registered to vote.

As Brian Williams explained: “There is some disturbing news about the state of this nation’s voting system in this upcoming presidential election year. The Pew Research Center says one in eight voter registrations in this nation is inaccurate, a quarter of eligible voters are not registered at all, 1.8 million dead people in this country are indeed still registered to vote.  The study says the problems here are not due to fraud, but they stem from disorganized and antiquated systems that could use some help from technology.”   But antiquated systems provide the opportunity to commit fraud.  Investigative journalism has shown repeatedly just how easy it is to obtain a ballot by giving the name of a dead person who is still on the rolls. The nice thing about dead people is that they don’t complain or protest if someone votes in their place.

One reason that the average voter, across both party lines and across all ethnicities, supports a photo ID voter law is that they know you can’t function in the modern world without showing ID.  You can’t cash a check, pay by check, buy beer or cigarettes, get married, get on a plane, register for school, enter any federal building, or even rent a video without being asked for one. You can’t even enter the Governor’s Mansion in Raleigh or  meet with Eric Holder in DC without producing one.  If it’s important enough to secure the safety of public officials, why shouldn’t it be important enough to secure the integrity of the voting process.

Instances of fraud never benefit the party that promotes Voter ID laws.  It’s always the group that fights exhaustively to block such laws. Why is that?  To law-abiding and well-intentioned citizens, it seems to beg the question: “Do they want the right to vote or do they want the right to vote illegally?”  One NC House representative explained to me why Democrats voted 100% by party to defeat NC’s Voter ID bill (H.B. 531): “They know how they are elected.”

In April – May, for the primary election early voting period, I worked the one-stop voting sites for 13 days.  I worked the most heavily trafficked site until it closed each day at 5:00 and then drove down the road to work the site that stayed open until 7:00. On primary election day, I worked my precinct for 12 hours, until closing. Voter ID was on everyone’s minds.  Many voters made it known that they supported a voter ID.  I can’t provide an exact figure for how many people told me that when they went in to vote, they intentionally pulled out their ID to show the poll officials but it was a lot.  When the officials commented that an ID was not necessary, many said that they wanted to show it anyway to PROVE they are the person they claim to be. A few ladies told me that when the officials told them an ID was not necessary, they questioned them in detail as to how they can be sure the person voting is the real deal. The answer in all instances was the same: “We can’t.”  A member of the Republican Women’s group told me that when she went in to vote, several people took out their driver’s licenses. Upon seeing that, the rest of the people in the room did the same.  And yet another woman went into the polling location I was working and gave a fake name – a common name.  When the official scrolled the names on the computer, the voter pointed to the screen and said – just to make a point: “That’s who I want to vote as today.”  She, of course, proceeded to vote legally, but she wanted to show the officials just how easy it is to vote as someone else, especially early in the early voting period.

The experience at the polls reminded me of something I had read earlier in the month of April. Filmmaker

James O’Keefe went to DC to document just how easy it is to commit voter fraud and why Voter ID requirements are important. In particular, he wanted to make this point for US Attorney General Eric Holder who continues to make a full-time career at blocking states’ voter ID laws and rigging the voting system to favor Democrats’ efforts.  O’Keefe sent one of his assistants to the Nebraska Avenue polling place in Washington DC where Attorney General Holder has been registered for the last 29 years, equipped with a hidden camera.  He easily documented his encounter with an election worker:

Assistant:  “Do you have an Eric Holder, 50th Street? Poll worker: “Let me see here.” Assistant:  “Xxxx 50th Street.” Poll Worker:  “Let’s see, Holder, Hol-t-e-r, or Hold-d-e-r?” Assistant:  “H-o-l-d-e-r.” Poll Worker:  “D-e-r. Okay.” Assistant:  “That’s the name.” Assistant:  “I do.  Xxxx 50th Street NW.  Okay.  [Puts check next to name, indicating someone has shown up to vote.]   Will you sign there….” Assistant:  “I actually forgot my ID.” Poll Worker:  “You don’t need it; it’s all right.” Assistant:  “I left it in the car.” Poll Worker:  “As long as you’re in here, and you’re on our list and that’s who you say you are, we’re okay.” Assistant:  “I would feel more comfortable if I go get my ID, is it all right if I go get it?” Poll Worker:  “Sure, go ahead.” Assistant:  “I’ll be back faster than you can say furious!”     [Now that’s just good humor !!] Poll Worker:  “We’re not going anywhere.”

[Note that O’Keefe’s assistant never identified himself as Eric Holder, so he was not illegally impersonating him].  Furthermore, the he never attempted to vote using the ballot that was offered to him, so the assistant himself cannot be accused of voter fraud.

O’Keefe pulled a similar stunt in North Carolina. His investigators posed as foreign-born persons and attempted to vote.  They used thick accents. Of course, O’Keefe filmed the exchange. The investigators repeatedly told the election officials that they would go to their cars to get their foreign passports, but the officials insisted that they don’t need to see them.  As the officials told the “foreigners,” all that was required was that they sign the voter form with an “X” and then they could have their ballots.  The results of the investigation showed just how vulnerable North Carolina’s electoral system is to voter fraud.

As part of Project Veritas, an organization which investigates and uncovers voter fraud, members compared Jury Forms to Voter lists and what they found was troubling.  There were hundreds who identified themselves as “noncitizens” on Jury Pool forms but yet voted in elections. So they voted illegally if their first claim is true but committed perjury if they in fact voted legally.

O’Keefe puts the Voter ID issue in proper perspective. “This is not a right-left issue.  It’s a basic fairness one—people should only vote in their own name.”  And Larry Sabato, the director of the Center for Politics at the University of Virginia and author of a comprehensive survey of voter fraud called Dirty Little Secrets, comments:  “From voter fraud to election chicanery of all kinds, America teeters on the edge of scandal every November.  The fact that so many people want to thwart legitimate and prudent efforts to improve ballot integrity has become a scandal in its own right.”

For those who don’t think it’s worth the time to enact meaningful voter integrity procedures, remember the election of 1960 when John F. Kennedy was declared president amidst allegations of massive voter fraud.  There were 68 million votes cast in the 1960 election. The margin of victory for Kennedy (Democrat) over Richard Nixon (Republican) was a mere 113,000 votes.  Kennedy won the election with less than 0.2% of the popular vote (0.16%).  Many Republicans (including challenger Richard Nixon and former President Dwight D. Eisenhower) believed that Kennedy had benefited from massive vote fraud, especially in Texas, where Kennedy’s running mate Lyndon B. Johnson was Senator, and Illinois, home of Mayor Richard Daley. The Washington Post wrote: “The election of November 8 was characterized by such gross and palpable fraud as to justify the conclusion that [Nixon] was deprived of victory.”  Chicago was not only known for its powerful Democratic political machine but also for the power of one of its most notorious mobsters, Sam Giancana.  It was rumored that both Mayor Daley and Giancana and the Chicago mafia played a critical role in Kennedy’s victory in Illinois. In the 1992, Giancana’s nephew wrote a book (“Double Cross: Inside Story of the Mobster Who Controlled America”) in which he recounts how his uncle rigged the election in Cook County (Chicago being the seat).

Kennedy won Illinois by less than 9,000 votes out of the 4.75 million votes that were cast, which reflected a margin of 0.2%. Yet Nixon carried 92 of the state’s 101 counties. Kennedy’s victory in Illinois came from the city of Chicago, where Mayor Daley suspiciously held back much of Chicago’s vote until the late morning hours of November 9.  When the votes were turned in that morning, Kennedy took Cook County by an extraordinary 450,000 vote margin, which represented more than 10% of Chicago’s 1960 population of 3.55 million. This was alarming since Cook County also included many suburbs outside of Chicago’s borders which happened to turn in a heavily Republican vote.  Earl Mazo, a reporter for the New York Herald Tribune at the time, investigated the voting in Chicago and claimed to have discovered sufficient evidence of vote fraud to prove that the state was stolen for Kennedy.  Among the evidence he found was a cemetery in one Chicago precinct where the names on the head stones were registered voters who had actually voted and an address that 56 Kennedy voters listed as their address. What he found was an abandoned, demolished house.

The Republican National Committee filed a lawsuit challenging the Chicago results, but amidst another cloud of suspicion, the lawsuit was assigned to the courtroom of a judge known by everyone to be friendly to Daley and the Democratic party – Circuit Court Judge Thomas Kluczynski.  After predictably dismissing the lawsuit, Kluczynski would later be rewarded by President Kennedy, upon a request by Mayor Daley, with an appointment to the federal bench.  Eventually, however, a special prosecutor was assigned to the case and brought charges against 650 people accused of committing voter fraud but none resulted in convictions. Three Chicago election workers were convicted of voter fraud in 1962 and served short terms in jail.

There were verified accounts of voter fraud in Texas as well. Fannin County had only 4,895 registered voters, yet 6,138 votes were cast, 75% of which went to Kennedy.  In one precinct in Angelina County, only 86 people voted yet the final tally was 147 for Kennedy and 24 for Nixon.  But Texas refused to conduct a recount. The Texas Election Board consisted entirely of Democrats and it went ahead and certified John Kennedy the winner in Texas.

After numerous Democratic judges dismissed Republican charges of voter fraud, Kennedy was inaugurated. Following Kennedy’s inauguration, the U.S. Department of Justice performed an inconclusive investigation into the accumulated evidence of voter fraud. The head of the DOJ was none other than U.S. Attorney General Bobby Kennedy, brother of you-know-who.

Instances of voter fraud are simply not punished and the threat of such therefore provides no meaningful deterrent.

We have a very important election coming up and what happened in 1960 in Chicago should send a chill up all our spines. The Obama Justice Department is supposedly working with former ACORN lawyers on this year’s election strategy.  We know what their previous strategy was – registering as many voters as possible, even if it was fraudulently.  Those same lawyers, in April 2011, pled guilty in court to a massive voter fraud conspiracy. It wasn’t just simple voter fraud.  We’re talking “MASSIVE” voter fraud.  We wonder what the new strategy will be.  In 2008, Obama was a shoe-in and massive voter fraud was used.  This year it is tenuous and tight ideological race and the Democrats will sure to get down and dirty in the months ahead.  (The Republicans will as well, but they just can’t compete with the low standards of the Democrats)

In addition to this noteworthy collaboration, the US DOJ has vowed to aggressively fight state Voter ID laws and efforts to purge voter rolls of non-eligible voters, which just happens to be required by federal law (the National Voter Registration Act of 1993, or “NVRA”).  One can only hope that Eric Holder will be rendered incapacitated by contempt charges and letters calling for his resignation and not be effective at interfering with the states’ responsibilities.

And in fact, the bullying has begun.

In May, Florida Governor Rick Scott decided to clean up the state’s voter rolls. His goal was to identify those who are noncitizens and remove them so that those illegal votes can’t negate the votes of legal citizens.  To identify those noncitizens most effectively – to most accurately verify the citizenship of registered voters –Florida’s Attorney General Pam Bondi has requested access to the federal database maintained by Homeland Security (known as SAVE).  The Obama administration has denied that access.  Without SAVE, Florida’s elections division proceeded with the purge and began comparing the voter rolls with a Florida Department of Highway Safety and Motor Vehicles database, which contains some citizenship information.  Unfortunately, that information can be out of date and can lead the state to mistake a lawful voter as a potential noncitizen.  In fact, a 91-year-old WWII veteran was mistakenly sent a letter, asking him to prove that he is a lawful citizen.

The initial purge based on the comparison of drivers’ license records with voter registration records identified as many as 182,000 registered voters who might not be legal US citizens. Upon further investigation, more than 500 turned out to be actual citizens and lawful voters and so the initial list was eventually narrowed to approximately 2,600.  But state and county officials say they have found at least 141 verified noncitizens on the voter rolls so far, at least 47 of whom have unlawfully cast ballots.  Governor Scott has asked county election officials to remove those 2,600 persons from the state’s voter rolls.

On June 12, 2012, Florida filed suit against the US Department of Homeland Security, claiming the federal government is frustrating their efforts and denying the state access to a federal database (known as SAVE) that would allow it to verify the citizenship of registered voters and thereby help the state spot and remove noncitizens from the voter rolls. By law, the government has to allow states access to the database.  Governor Scott, as well as Attorney General Bondi, assert the state’s responsibility under Section 8 of the NVRA to keep voter rolls “accurate and current.”

Later that day, the Justice Department filed suit against Florida, ironically also under Section 8 of the NVRA (among other authority), to block its voter purge noncitizens and to stop further attempts before the November election.  Governor Rick Scott said Florida will refuse to comply.  He said: “I have an obligation to enforce the laws of our land.  You don’t get to vote in Florida if you’re a non-US citizen.”  He defended the purge as an effort to protect Florida citizens from having their votes diluted by those ineligible to vote.  Holder claims the purge unfairly targets illegal Latino residents.

Of course, we all know it is a federal crime for an illegal alien to register to vote or to vote in U.S. elections. Yet, rather than enforcing federal law, the Obama-Holder Department of Justice is intent upon punishing states that purge their rolls or enact laws requiring voter ID.

Liberal groups and the DOJ are concerned with the quality of the 2,600-person list of potential noncitizens generated by the state.  So far, 53 percent of those removed from the list as being confirmed noncitizens are minorities. Since Hispanics and Haitians are Florida’s largest immigrant group, any search of noncitizens will disproportionately target them.  Yet liberal groups are using numbers like this as proof that Florida’s voter purge is “racist” and the DOJ, the federal organization dedicated to protecting the rights of everyone except those who are white, is biting.  According to liberal groups, the voter purge is discriminatory because non-Hispanic whites and Republicans are the least likely to face the prospect of being identified as noncitizens and removed from the rolls.  Of course, there is a very likely explanation for that:  Conservatives are the group most likely to engage in lawful and ethical conduct.

As if the Obama Justice Department’s attack on the sovereign responsibility of Florida to provide a clean and legal voting process isn’t bad enough, Judicial Watch has uncovered proof that the DOJ is partnering with Project Vote, which is Obama’s former employer (“community organizer”) and which connected to ACORN, to aggressively enforce a provision in the NVRA forcing states to register greater numbers of voters on public assistance.  Watch out in November for the Democrats’ “Food Stamp Army.”  Again, ACORN’s playbook and modus operandi includes voter fraud.  Apparently, “community organizing” is code for “illegal voting.”  [See NRVA under “Notes” below].

Unfortunately, our nation’s top law enforcement agency, the Obama Justice Department, is aggressively enforcing a provision of the NVRA that requires states to register voters on public assistance, while ignoring/undermining a provision that requires states to ensure that each voter is eligible to vote.

Voting rights are important because they protect so many other rights. They protect the people’s voice in government.  The integrity of the election process to safeguard “one person, one vote” must be maintained and all state officials should be concerned with the state’s legitimate interest in protecting that constitutional principle and managing the election process for fair and confident results.

Whether a person is turned away at the polls because he or she can’t afford to pay a $2.00 voting fee or a person commits an act of voter fraud, the result is exactly the same – a citizen of the United States is denied the opportunity to participate in the democratic process that ties he or she to the conduct of government.  In each case, it’s an injustice.

In this era of documented voter fraud, states have the legitimate responsibility under the Tenth Amendment to enact fair and meaningful schemes to protect the integrity of the election process. Citizens need to believe that the system has not been compromised or broken.  They need confidence.  They are entitled to that confidence.

 

NOTES: 1.  The National Voter Registration Act of 1993: The National Voter Registration Act of 1993 (which is also known as the “NVRA” and the “Motor Voter Act”), was passed by Congress to enhance the voting opportunities for all American citizens. Section 6 provides that citizens can register to vote by mail using mail-in forms.  Section 7 requires states to offer voter registration opportunities at all offices that provide public assistance and all offices that provide state-funded programs primarily engaged in providing services to persons with disabilities. Each applicant for any of these services, renewal of services, or address changes must be provided with a voter registration form, as well as assistance in completing the form and sending it in to the appropriate state or local election official.  (Is this a potential source of voter fraud?   Multiple addresses?)

I have an Equal Protection concern.  My husband and I pay a ton of money in federal income tax and so we have a legitimate stake in the policies of government and therefore the voting process, yet not a single person from government has checked to make sure that we have been provide with voter registration forms or helped us submit those forms.  No one from government has made sure that my children have been provided with registration forms, helped them fill them out and submit them.  No one from government has made sure that any one in my family has been served so personally.

Section 8 of the NRVA creates requirements for how States maintain voter registration lists for federal elections. It reads: “The Act deems as timely those valid voter registration applications by eligible applicants submitted to designated state and local officials, or postmarked if submitted by mail, at least 30 days before a federal election. The Act also requires notification of all applicants of whether their voter registration applications were accepted or rejected. The Act requires States to keep voter registration lists accurate and current, such as identifying persons who have become ineligible due to having died or moved outside the jurisdiction. At the same time, the Act requires list maintenance programs to incorporate specific safeguards, e.g., that they be uniform, non-discriminatory, in compliance with the Voting Rights Act, and not be undertaken within 90 days of a federal election. The removal of voters for non-voting or for having moved can only be done after meeting certain requirements provided in the Act. The Act allows for removal of voters from registration lists when they have been convicted of a disqualifying crime or adjudged mentally incapacitated, where such removals are allowed by state law. The NVRA also provides additional safeguards under which registered voters would be able to vote notwithstanding a change in address in certain circumstances. For example, voters who move within a district or a precinct will retain the right to vote even if they have not re-registered at their new address.”

2.  A breakdown of the States and their Voter ID Laws: [ http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx ] Voter ID laws can be broken down into the three following categories: Strict Photo ID:  Voters must show a photo ID in order to vote.  Voters who are unable to show photo ID at the polls are permitted to vote a provisional ballot, which is counted only if the voter returns to election officials within several days after the election to show a photo ID.  At the beginning of 2011, there were just two states–Georgia and Indiana–with strict photo ID laws.  Six states passed strict photo ID laws in 2011, although four are not currently in effect (see the notes below Table 1 for more information regarding effective dates for new legislation). That leaves four states with strict photo ID laws currently in effect.

Photo ID:  Voters are asked to show a photo ID in order to vote.  Voters who are unable to show photo ID are still allowed to vote if they can meet certain other criteria.  In some states, a voter with ID can vouch for a voter without.  Other states ask a voter without ID to provide personal information such as a birth date, or sign an affidavit swearing to his or her identity.  Voters without ID are not required to return to election officials after the election and show a photo ID in order to have their ballots counted in the manner that voters without ID in the strict photo ID states are.

Non-Photo ID:  All voters must show ID at the polls.  The list of acceptable IDs is varied and includes options that do not have a photo, such as a utility bill or bank statement with the voter’s name and address. Rhode Island passed a new voter ID law in 2011. It takes effect in stages — beginning in 2012, voters will be required to show an ID (although not necessarily a photo ID) at the polls, and in 2014 a photo ID requirement will take effect.

STATES THAT REQUIRE A PHOTO ID for VOTER IDENTIFICATION: A.  Strict Photo ID: Georgia Indiana Kansas Mississippi  (the Voter ID law has not yet been implemented) South Carolina  (an older Voter ID law exists but the newer, more stringent law has still not yet been implemented) Texas  (an older Voter ID law exists but the newer, more stringent law has still not yet been implemented) Wisconsin  (the Voter ID law has not yet been implemented)

B.  Photo ID: Alabama  (an older Voter ID law exists but the newer, more stringent law has still not yet been implemented) Florida Hawaii Idaho Louisiana Michigan South Dakota

STATES THAT REQUIRE ID BUT NOT NECESSARILY A PHOTO: Alaska, Arizona, Arkansas, Colorado, Connecticut, Delaware, Kentucky, Missouri, Montana, North Dakota, Ohio, Oklahoma, Rhode Island, Utah, Virginia, and Washington.

3.  2012 Timeline: State Measures to Ensure Election Integrity: 

February 9, 2012:  South Carolina filed for reconsideration of the U.S. Department of Justice’s denial of preclearance for its new Voter ID law. The DOJ denied South Carolina’s request for pre-clearance in December 2011.  The DOJ found the law discriminatory because the state’s minority voters are 20 percent more likely than white voters to lack a photo ID that meets the standard for voting.

March 12, 2012:  The U.S. Department of Justice has denied pre-clearance for Texas’s new Voter ID law, passed in 2011.

March 12, 2012:  A state judge ruled Wisconsin’s Voter ID law unconstitutional.

April 5, 2012: The Minnesota legislature approved HF 2738, sending a constitutional amendment to the November 2012 ballot that will allow voters to approve or reject Voter ID.

May 1, 2012:  The American Civil Liberties Union filed suit against Pennsylvania’s new strict photo Voter ID law which was signed into law on March 14th

May 22, 2012:  Governors in Mississippi and Virginia signed Voter ID legislation. The Mississippi legislation spells out the details necessary to implement the constitutional amendment approved by voters in November 2011. Virginia’s new law expands the types of ID that are permissible for voting purposes (including adding some that do not bear a photo of the voter), but also moves Virginia into the “strict” camp by requiring voters who fail to bring ID to the polls to vote a provisional ballot and present ID within the few days following the election in order to have their ballot counted.  Both laws require pre-clearance under Section 5 of the Voting Rights Act before they can take effect

June 7, 2012:  The New Hampshire General Court sent a Voter ID bill to the governor.  It would require voters to show a photo ID before voting, but it is not of the “strict” variety passed in other states over the past two years.  A voter without ID would be permitted to vote after executing an affidavit of identity.  The secretary of state would be required to send a letter to each voter who executed an affidavit in lieu of showing ID, asking the person to confirm that s/he did in fact vote. Any such letters returned as undeliverable, or returned by people saying they did not vote, would be turned over to the Attorney General for investigation of voter fraud.

June 12, 2012:  The US DOJ filed suit against the state of Florida to stop it from purging its voter rolls of noncitizen voters.

References: Crawford v. Marion County Election Board, 553 U.S. 171, pg. 172 (2008).

Michele Malkin, “Voter rolls: We see dead people. Does the DOJ?,”  September 7, 2010.  Referenced at: http://michellemalkin.com/2010/09/07/voter-rolls-we-see-dead-people-does-the-doj/

John Fund, “Why We Need Voter ID Laws Now,” National Review Online, April 9, 2012.  Referenced at:  http://www.nationalreview.com/articles/295431/why-we-need-voter-id-laws-now-john-fund#.   Also see Breitbart News:  http://www.breitbart.com/Big-Government/2012/04/09/Fund-Voter-Fraud-OKeefe

“NBC Informs Viewers 1.8 Million Dead People are Still Registered to Vote,” News Busters, February 16, 2012.  Referenced at:  http://newsbusters.org/blogs/brad-wilmouth/2012/02/16/nbc-informs-viewers-18-million-dead-people-are-still-registered-vote

“Majority Supports Voter ID Law, Obama Ahead of GOP Rivals, Poll Shows,” The Pilot, April 11, 2012.  Referenced at:  http://www.thepilot.com/news/2012/apr/11/majority-supports-voter-id-law-obama-ahead-gop-riv/%5D

Susan Myrick, “Incumbent Wins Washington County Sheriff Re-Do,”  Civitas Review Online.  Referenced at:  http://www.civitasreview.com/politicians/incumbent-wins-washington-county-sheriff%E2%80%99s-re-do-election/

Susan Myrick, “Voter Photo ID ‘Compromise’ is a Sham,” Civitas Institute, June 18, 2012.  Referenced at:  http://www.nccivitas.org/2012/voter-photo-id-compromise-is-a-sham/

http://www.chipublib.org/004chicago/timeline/population.html   (Chicago’s population)

Gerald Posner, “The Fallacy of Nixon’s Graceful Exit,” Salon, November 10, 2000.  Referenced at:  http://www.salon.com/2000/11/10/nixon_4/

Tim Faye, ” Will Gore steal the election from Bush like Kennedy stole it from Nixon in 1960?,” Adversity.net, November 22, 2000.  Referenced at:  http://www.adversity.net/FRAMES/Editorials/27_1960v2000_Kennedy.htm

Peter Carlson, “Another Race to the Finish” The Washington Post, November 17, 2000. Referenced at:  http://www.washingtonpost.com/ac2/wp-dyn/A36425-2000Nov16?language=printer

Voter ID Requirements,” National Conference of State Legislatures (NCSL), June 7, 2012.  Referenced at:  http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx

Matthew Vadum, “ACORN Convicted In Massive Voter Fraud Conspiracy,” News Real Blog, April 18, 2011.  Referenced at:  http://www.newsrealblog.com/2011/04/18/acorn-convicted-in-massive-voter-fraud-conspiracy-legacy-media-yawns/

Project Veritas Investigates North Carolina –  https://www.theprojectveritas.com/civicrm/contribute/transact?reset=1&id=103

Citizen Wells, “NC voter fraud, 2008 election, Voting twice for Obama, Four Wake County residents charged, Raleigh NC,”  August 16, 2011.  Referenced at:  http://citizenwells.wordpress.com/2011/08/16/nc-voter-fraud-2008-election-voting-twice-for-obama-four-wake-county-residents-charged-raleigh-nc/

Lauren Fox, “ACLU Leader Says Voter ID Law Akin to Jim Crow-Era Law,” US News, February 23, 2012.  Referenced at:  http://www.usnews.com/news/blogs/washington-whispers/2012/02/23/aclu-leader-says-voter-id-law-akin-to-jim-crow-era-law

Cleta Mitchell, “Voter Fraud Deniers Ignore the Facts,” US News, June 13, 2012.  Referenced at:  http://www.usnews.com/debate-club/is-voter-fraud-a-real-problem/voter-fraud-deniers-ignore-the-facts

“Justice Department Sues Florida Over Purging Voter Rolls as Expected,” FOX News, June 12, 2012.  Referenced at:  http://www.foxnews.com/politics/2012/06/12/justice-department-sues-florida-over-purging-voter-rolls-as-expected/#ixzz1xgKZpohu

Marc Caputo, “Florida Files Suit Against Federal Government Over Database Needed in Voter Purge,” Tampa Bay Times, June 12, 2012.  Referenced at:  http://www.tampabay.com/news/politics/national/florida-files-suit-against-federal-government-for-database-needed-in/1234828

National Voter Registration Act – http://www.justice.gov/crt/about/vot/nvra/activ_nvra.php

O.P.M. – The Addiction That is Killing America

           by Don F. Keel, Greenville, NC

Our politicians have become addicted to O.P.M. (pronounced opium). They have realized the best way to feed their O.P.M. addiction is to become an O.P.M dealer thereby addicting millions of others.  They’ve done this in many cleaver ways.

Politicians will proclaim a business “too big to fail” and give it some O.P.M. as the cure for poor business practices.  The O.P.M. gives a little temporary relief and masks the larger problem of a poor business model.  This in turn enslaves the business to the dealer as the business turns once again for more O.P.M. as the temporary relief wears off.  Naturally the business helps the dealer maintain power as it sees the O.P.M. as its competitive advantage.

Those that are in poverty have also become victims of the O.P.M. dealer.  The dealer gives enough O.P.M. to ease the pain of poverty while at the same time enough to destroy the incentive to work and develop the skills necessary to rise from poverty.  This works perfectly for the dealers as they have created a class of people that are hopelessly addicted to O.P.M.  They are then enslaved and vote in mass for the dealer that promises the most O.P.M.

There are trillions of dollars of earned income confiscated and immediately turned into O.P.M., much of it taken under the promise that it will be returned to you during your retirement or will be used to defray medical cost as you age.  This money is immediately turned into O.P.M for current consumption, thereby creating another generation of O.P.M. addicts.

Of course, O.P.M stands for “Other People’s Money” and the dealers are our politicians.

You must fight to be free or be content to be slaves to the O.P.M dealer, because you can’t be both.

Nullification and the National Defense Authorization Act (NDAA)

   by Diane Rufino

He has erected a multitude of new offices, and sent swarms of officers to harrass our people… “

“He has combined with others to subject us to a jurisdiction foreign to our Constitution…..”

“For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.”

“For depriving us in many cases, of the benefits of trial by jury.”

“For transporting us overseas to be tried for pretended offences.”

“He has abdicated government here, by declaring us out of his protection and waging war against us.”

“He has excited domestic insurrections amongst us….”

No, the charges above are not directed at President Obama, but rather are some of the grievances that our founding patriots had against King George II.  These grievances were listed in the Declaration of Independence, as written by Thomas Jefferson, as examples of the “repeated injuries and usurpations” levied against the colonists at the hands of the King, “all having in direct object the establishment of an absolute Tyranny over these States.”  These grievances were listed as proper justification for the separation (indeed, the ‘secession’) from England.  “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.”

Our early settlers left their homes, braved treacherous seas, and came to America’s wilderness shores as proud English subjects in search of a life with greater freedom of religion. The blood surging in their veins was the same blood that surged through the veins of hundreds of years of English subjects, all focused on the same goals – restoring Saxon common law, limiting the power of the King, acknowledging the fundamental civil rights of all individual rights, and instituting a resolute national charter establishing proper boundaries of government with respect to those rights. Their grand notions of liberty came from the Magna Carta (1215) and the great constitutional documents of the 17th century [the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the English Bill of Rights of 1689], as well as from the Bible and the works of such Enlightenment philosophers as John Locke (“the Philosopher of Freedom”).  Their experiment in colonizing a new world, governing themselves, and exercising the liberties they carried with them from England for their most useful and productive purposes emphasized to them that Man is a sovereign being, endowed by the Creator with certain unalienable rights, that among them are Life, Liberty and the pursuit of Happiness, and that to secure those rights, governments must derive their just powers from the consent of the governed. As their own experience with the English Crown taught them, whenever any form of government becomes destructive of those ends, it is the right of the people, as sovereign beings who are never naturally divested of their inherent natural and fundamental rights, to alter or to abolish it, and to institute a 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. The history of the English people, indeed most of the world, has shown that when government becomes despotic and evinces a design to reduce them to a role of oppressive subservience, the people fight back in order to regain the freedom they are entitled to.

Our Founders made sure they provided for the proper avenues to counter a government that evinces such a design and even provided for the right to abolish that government. The proper avenue, as discussed in this article, is Nullification (and/or Interposition), and the rights – the natural rights – are those of self-defense, self-determination, and self-preservation, all based on free will.  The natural right of free will, indeed the very basis of human life and the foundation of almost all religions, is a HUMAN right.  Governments, on the other hand, have no inherent rights. They require constitutional authority to act.

Nullification —

“Nullify” –  to make legally null and void; to invalidate   (Webster’s Dictionary)

Nullification is a term introduced by Thomas Jefferson in 1798 when he drafted the Kentucky Resolves to articulate the reason for the state  to oppose an unconstitutional federal law – the Alien and Sedition Acts.  Nullification begins with the central premise that a federal law that violates the Constitution is no law at all.  It is void and has no effect.  It has no force of law. It is unenforceable.  But it goes one step further. If a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact (see later), to declare it so and thus refuse to enforce it.  It would be foolish to wait for the federal government, or a branch thereof, to condemn its own law or censure its own conduct.  Nullification provides the necessary “shield” between the people of a state and an unconstitutional law or policy (even judicial decision) from the federal government.

Our Founders labored and debated extensively over how to establish a nation governed by limited federal government.  But one question remained:  What can be done if the government violates the very Constitution which defines it?  What protections are available for the people?  In fact, that question became very urgent in 1798 when the government enacted the Alien and Sedition Acts and attempted to quash free speech.

Thomas Jefferson articulated the most effective option – Nullification, or as he called it, “the Rightful Remedy.”  James Madison articulated a very similar option, which he termed “interposition.”

When John Adams was elected president in 1796, tensions were very strained between the United States and France. It quickly escalated to the Quasi War (as it was called; an undeclared war) which would last until 1800.  During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. [The Naturalization Act, the Alien Friends Act, the Alien Enemies Act, and the Sedition Act].  It was the Sedition Act which caused the greatest concern to the Republicans of the day and they challenged it on constitutional grounds.  The Act established fines and jail time for “any person who shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.”

Convictions began to follow.  Many honorable men were silenced under the Sedition Act, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers, whose livelihoods were built on the critical analyses of government.  As one convicted writer, Thomas Cooper, wrote about the impact of the convictions and subsequent trials: Americans “may learn some useful lessons… they will hold their tongues and restrain their pens on the subject of politics.”

The Sedition Act immediately sent up constitutional red flags to many of our Founders, although it appeared to be partisan in nature.  Congress, dominated by Federalists, pointed to the “General Welfare” and “Necessary and Proper” clauses of the US Constitution for justification to pass these pieces of legislation. The President, John Adams, was a Federalist, and seemed to have no problem with the law.  The Vice President, Thomas Jefferson, was a Republican, and he had a big problem with it.  Even though the Act did not protect him (it protected the President and members of Congress only), it was his opinion that the protections of free speech apply most aggressively for political speech. He believed that when one enters politics, he should expect public criticism.

Jefferson pondered what remedies could be taken against this overtly unconstitutional act, including judicial review, nullification (he called the Sedition Act “a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image”), and secession (which he believed was a state’s inherent and natural right, stemming from the principles of self-government and self-determination).  He felt secession was extreme and judicial review untrustworthy.  The Supreme Court at the time was packed with Federalists and already Jefferson was suspicious of its ability to correctly interpret the Constitution of our Founders. The Court was already looking to the elastic clauses as sources of extra federal power instead of the qualifiers that they were intended to be.  Jefferson was sure it would uphold the constitutionality of the Alien and Sedition Acts. But more importantly, Jefferson saw the Supreme Court as part of the problem. For one, it was itself a branch of the federal government and thus not an impartial arbiter.  As he reasoned, the Supreme Court was a branch of the institution which engaged in a power struggle with the states. Secondly, it was comprised of human beings, who like the rest of mankind, are subject to passions, ambitions, allegiances, whims, and depravities. As he wrote: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”

Thomas Jefferson and James Madison then began a series of correspondence throughout 1798 over their joint concern over the Alien and Sedition Acts, their discussions over the proper state response, and for the future of the constitutional republic.  Jefferson drafted a series of resolutions that addressed several things, including the following: (1) it described the nature of the federal union; (2) it condemned the Alien and Sedition Acts as gross violations of the Constitution; and (3) it considered the proper response to be taken by the states.  In fact, both man drafted separate resolutions.

Jefferson’s resolutions articulated his entire theory of the federal union and therefore explain the nature of our newly-established independent nation.  “Every State has a natural right in cases not within the compact (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits. Without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them,” he wrote.  He gave a copy of his resolutions to his friend and neighbor, Wilson Cary Nicholas, who was a member of the Virginia Senate, who also shared them with John Breckinridge, a member of the Kentucky legislature and who just happened to be passing through Virginia at the time. These resolutions, with some modifications, would become the Kentucky Resolves of 1798 and would articulate and memorialize the Jeffersonian view of the nature of the United States.  The Kentucky Resolves stated, in part:

1.  Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United states, and of amendments thereto, they constituted a general government for specific purposes – delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force;  that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party:  that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”

In November 1799, the Kentucky legislature approved follow-up resolutions to those of the previous year, for the purpose of addressing the comments of those states who had not received Jefferson’s resolutions favorably.  It was in the Kentucky Resolutions of 1799 that the word “Nullification” was used for the first time in an official document to describe Jefferson’s states’ rights’ remedy:

Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution:  That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY:  That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST.”

Likewise, the resolutions that James Madison would become the Virginia Resolves of 1798.  In part, it read:

“Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers).

The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness…

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…

That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy…..”

***  The “certain general phrases” that Madison was referring to are the elastic clauses of the Constitution –  the “Necessary & Proper” clause and the “General Welfare” clause.  I don’t believe they attempted to enlarge the “Commerce” clause at that time.

The principle of Nullification is a States’ Rights Remedy (termed the “Rightful Remedy”) inherent in the states’ reserved powers under the Tenth Amendment and founded in the Compact Theory of Federalism to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution. The principle also underlies the message of Article VI, section 2 (The Supremacy Clause), which states that the Constitution and all laws made in furtherance of, …. are to be considered the supreme law of the land.  This principle affirms that the states, the parties to the compact which created and gave breath to the federal government with specificity, have the right – even the duty – to declare when federal laws and other official acts exceed the powers delegated to the federal government in the Constitution.

In summary, the principle of “nullification” is based on the convergence of pre-Republic and constitutional duties and the text of the Constitution which is consistent with pre-constitutional concepts related to a state’s organic documents in general. A clear understanding of the requirements and basis of these duties and legal principles is necessary for a usable and defendable position in support of “nullification.”

The Basis of Nullification:  Federalism and Compact Theory  –

Often we refer to our government as a “federal’ government without really understanding what it means. To state that our government is a “national” government, on the other hand, would imply something completely different.  A “federal” government implies that we are a federation of sovereign states which has granted or transferred some its authority to a government to serve, maintain, and support the union. A federal government implies a limited government that respects the sovereign powers of the states.  It implies a government that “serves” the individual states.  Indeed, we have a federal republic where the individual states come together and have joint deliberations in government, but those deliberation do not impair the sovereignty of each member.

We did not create a nationalistic entity – that is, a “national” government – which would imply that the sovereign powers of the states have been sacrificed to an all-powerful government. “Nationalism” was not on our Founders’ minds, and for good reason.  The delegates at the Constitutional Convention in 1787 nearly unanimously rejected that notion in favor of federalism.  Nationalism is the unhealthy love of one’s government, accompanied by the aggressive desire to build that governmental system to a point that it is above all else, and becomes the ultimate provider for the public good.  Nationalism puts the nation before the Individual.  We call our founding settlers and Founding Fathers “patriots” and not “nationalists.” Patriotism is love of country, Nationalism is love of government.

“Federalism” is widely regarded as one of America’s most valuable contributions to political science. It is the constitutional division of powers between the national and state governments – one which provides the most powerful of all checks and balances on the government of the people.  It is the foundation upon which our individual rights remain most firmly secured.

James Madison, “the Father of the Constitution,” explained the constitutional division of powers this way in Federalist Papers No. 45: “The powers delegated to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, such as war, peace, negotiation, and foreign commerce..The powers reserved to the several states will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.”  Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole.  The one is the domestic, the other the foreign branch of the same government.”

The principle of Federalism was incorporated into the Constitution through the Tenth Amendment, which states: “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.”  It is similar to an earlier provision of the Articles of Confederation which asserted: “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.”

Our Founders had very good reason to draft the provisions in such terms and the states had very good reason to ratify the Tenth amendment on December 15, 1791.  The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was one that was very important at the time our Founding Fathers were trying to fashion an institution to serve the united purposes of the states. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies.  They weren’t willing to trade one tyrant government for another.

As history clearly records, adoption of the Constitution of 1787 was opposed by a number of our most important and well-known patriots – including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They passionately argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. These opponents would be termed the “Anti-Federalists,” which is actually a misnomer of a name because they were the strongest supporters of the states’ sovereign powers.  [The Federalists were the group who won the day at the Constitutional Convention in Philadelphia in 1787].  It was because of the strength of their arguments, their persistence, their intellectual influence through many writings in widespread publications, and the very track record of history that led to the addition of the Tenth Amendment to the US Constitution.

As the Supreme Court acknowledged in 1931 in the case of United States v. Sprague: “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.”

It is exceedingly clear that the Tenth Amendment was written and adopted to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.

Besides the principle of Federalism, another foundation upon which the doctrine of Nullification is based is the “Compact Theory of Federalism.” This theory was explained and emphasized by Thomas Jefferson in the series of resolutions he wrote which would become the Kentucky Resolves of 1798. The compact theory states that our federal government was formed through an agreement by all of the states.  That agreement (compact), our US Constitution, was ratified by all the original states and adopted by every additional state that entered the Union.  The Constitution, as an agreement, and like all other agreements (or contracts), set out specific conditions, responsibilities, and limitations on the part of the parties.  The parties to the compact were the states themselves and not the federal government. The federal government was merely a creation of the Constitution.  Also, as with all contracts and agreements, the federal compact is limited by its language and by the intent when it was entered into.  It is only legally enforceable under such conditions.  In other words, the government is only legal for the specific purpose it was ratified for and under the precise terms (except for amendments properly adopted through the Article V amendment process).  In other words, the Constitution is a contact between the individual states which they can break. And this was precisely what Thomas Jefferson referred to in his Declaration of Independence when he wrote the words:

“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 effect 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.”

To look at the frame of mind of the states when they adopted the Constitution, look at their comments in the ratifying conventions and look at the terms they used.  The terms included “compact” and “agent” (meaning the federal government was intended to be an agent of the states).  This is the best indicator of the foundations of our system of government.  It is not for us to redefine those foundations.  And it is certainly not for the federal government to do so.  Again, it wasn’t even a party to the compact; it was the creation.

South Carolina’s Declaration of Causes of Secession (“Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union”) adopted on December 24, 1860, provides a nice summary of the establishment of our country:

(With respect to the Declaration of Independence of 1776)… “Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.

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.

If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.

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 May 23, 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.

We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: 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.”

South Carolina’s Declaration of Causes goes on to emphasize that stipulations in the Constitution were so material to the compact that without them, the compact itself would never have been made.

Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that document/agreement will be changed or interpreted  in the future?  No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.

Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and  interpretation of the Constitution.  But why should the Court, or any federal court for that matter, be such a final arbiter?  They are, after all, a branch of the federal government. How can such courts truly be expected to be a fair umpire for the States, especially when it was the States themselves, the parties to the compact (contract), which understood and meaning and intent of the Constitution and the purpose for the federal government. The foundational point upon which nullification rests is that the federal government cannot and must not be permitted to hold a monopoly on constitutional interpretation.  If the federal government has the exclusive right to evaluate the extent of its own powers, it will continue to grow, regardless of elections, the separation of powers, and all the other limits and checks and balances built into our system of government. This is precisely what Thomas Jefferson and James Madison warned about when they crafted the Kentucky Resolves of 1798 and Virginia Resolves of 1798.

Sure, the Supreme Court has been historically seen as the ultimate and “infallible” judge of the constitutionality of the laws and actions of the federal government. But we can’t forget that the Supreme Court is itself a branch of the federal government. In a dispute between the states and the federal government, is it reasonable to assume that the federal government can always come up with an unbiased resolution? (We’ve seen how resolutions have turned out over the years, as the states have been systematically stripped of their powers, rights, and obligations).  Jefferson believed that under this arrangement, where the Supreme Court is the ultimate and “infallible” judge of the meaning of the constitution and the constitutionality of federal actions, the states would inevitably be eclipsed by the interests and ambitions of the federal government. As Judge Spencer Roane of Virginia (1762-1822) wrote: “It has, however, been supposed by some that the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States (government) on the other, in all questions touching on the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid for by the other party.”

Virginia Nullifies the “Indefinite Detention of American Citizens” Provision of the National Defense Authorization Act (NDAA)  –

“The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”      -–  the Preamble to the Bill of Rights

It is a good thing the doctrines of nullification and interposition are being revived.  Perhaps it’s the urgency of the constitutional crisis we face that has made the doctrines so appealing and sensible.  One notable example of its recent application is with the “indefinite detention” provision of the National Defense Authorization Act (NDAA), which declares the United States to be a battlefield and allows the President to apply the rules of war to American citizens, which includes the right to indefinitely detain, ship to detention centers overseas, interrogate, torture, subject to military tribunal, or kill. The NDAA was passed to extend the authority to fight terror that was granted under the 2001 AUMF (Authorization for Use of Military Force), except that while the AUMF was intended to apply only to those associated specifically with the events of 9/11, the NDAA creates a second classification of targets that the president can apply military law to – American citizens. [Section 1021(b)(2) defines this new target as: “A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”]  It is this new classification that is at the core of the controversy and the heart of the opposition.  It is perhaps significant that the government, ever since the Civil War, has been looking for power to target citizens for anti-government conduct in excess of what the Constitution has already granted.

    Article III of the Constitution – the “Treason Clause” – provides the only constitutional trial remedy for those who make war against their own nation or give aid and comfort to its enemies. Up to the Civil War, in every rebellion, from Shay’s rebellion, to the Whiskey Rebellion, to Aaron Burr’s attempt to raise an Army against the U.S., to John Brown’s attack on Harper’s Ferry, each person tried for their actions of taking up arms against their nation or aiding the enemy were tried for treason, before a jury, in a civilian court. None of them were brought before a military tribunal. If the Founders had intended to give the military jurisdiction over such people, what was the point of the Treason Clause?

Furthermore, Article I, Section 9, clause 2  – the Habeas Suspension Clause – allows for the suspension of habeas corpus, but only by an act of Congress.  [“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”]  Habeas suspension, which can be done only by congressional statute, would deny an individual access to the courts altogether.  Luckily it is limited to times of actual invasion or rebellion and luckily it is subject to the principle of separation of powers.  A person either has full access to courts that must rigorously assess the violation to the person’s Bill of Rights or has no access to courts at all (yet still retaining his full complement of rights). Under the NDAA, a person that is targeted by the government loses his civil rights altogether. Finally, such a habeas suspension only allows detention, not trial by tribunal, and it also does not “make it legal” for the government to torture people, or summarily execute them. The protections embraced by the Bill of Rights are not suspended, only the ability to challenge their violations in court.

Stewart Rhodes, a graduate of Yale Law school, wrote this senior thesis paper on the application of military law (law of war) to American citizens for which he won the “Judge William E. Miller” Prize in 2004 for best paper on the Bill of Rights and has since written other analyses of the history of “enemy combatant status.”  He explains how Abraham Lincoln was the first president to try to do an end-run around the Bill of Rights.  He wrote:

“Until the war on terrorism, this claimed power of the president to operate outside the Bill of Rights was asserted on only two other occasions in our history: The Civil War and World War II.  In the Civil War, the southern states that broke away formed their own nation with a constitution, a legislature, a president, an army, and a navy.  They printed their own money, sent and received ambassadors, etc.  The North and South exchanged prisoners, followed the laws of war in the treatment of POWs, negotiated cease-fires and conducted a formal surrender at the end.  Only in this anomalous situation of a civil war, where a part of the U.S. had broken off, were U.S. citizens from the South treated as foreign enemies for purposes of military jurisdiction.  There was no way to avoid that, as all of the southerners were U.S. citizens till they broke away.

However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy.  During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals that answered only to him, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war.  In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them.  Others were accused of harboring rebels or engaging in guerilla warfare.”

As most students of history know, the Supreme Court addressed Lincoln’s suspension of habeas corpus after the end of the war, in the landmark case of Ex parte Milligan (1866).  Milligan was accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade.  He was detained and tried by a military tribunal, found guilty, and sentenced to death.  Luckily, the war ended before his execution and so the Supreme Court heard his challenge to the government’s denial of his rights of habeas corpus (which is what the term “ex parte” means).  At issue was the treatment of Northern civilians as the “enemy” and therefore subjecting them to “justice” under military tribunals.  The Court found this unconstitutional.

“The Milligan Court rejected the argument that a U.S. citizen could ever be an ‘enemy.’  The Court affirmed the use of military jurisdiction over two categories of persons: those in the U.S. military (and in the militia when called into service) and the enemy.  In the peculiar circumstance of the Civil War, the Court had no problem at all with using military jurisdiction for detention and trial of the soldiers and even civilians of the breakaway South who had effectively renounced their U.S. citizenship.  However, the Court pointed out that Mr. Milligan was not in the military (the Union Army) and was not a resident of one of the rebellious states.  This is really the same as saying he was not a citizen or resident of a foreign nation with which we were at war.  It did not matter to the Milligan Court what Milligan had done, or what laws of war he might have violated.  What counted was who he was.  If he was a northern civilian, he could not be tried by tribunal for any actions nor held as a POW or “unlawful combatant” because he just was not in one of the two categories of people subject to the military.  He was a northern citizen who was making war on his nation and aiding the enemy.  The proper remedy for such is a trial for treason, or at least for violation of a statute, before a jury in an Article III court, not a military trial.

What the Milligan Court upheld is the Constitution’s separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England’s many upheavals and coups and endeavored to prevent their recurrence.”    [Stewart Rhodes, “Enemy Combatant Status”]

Star Chamber Courts (simply referred to as the Star Chamber) were arbitrary, corrupt, and maligned courts which were used with great notoriety during the 17th century to prosecute the political enemies of James I and his son Charles I.  The judges appointed to the Star Chamber were the King’s own hand-picked men.  The courts were known for their abuses, corruption, and misuse of authority precisely because of such concentration power in an autonomous group, which was not subject to the checks and balances of common law and which held its proceedings in secret.

9/11 and the War on Terror turned the Milligan case on its head.  In 2001, Yaser Hamdi, an American citizen was captured by the US military in Afghanistan fighting for the Taliban.  He was declared an “enemy combatant,” and transferred to a military prison in Virginia where he was held indefinitely and not given access to an attorney or charged with a crime and given a trial.  Hamdi took his case to the Supreme Court, where he claimed the government violated his 5th Amendment right to Due Process. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States “enemy combatants” and thus restrict their access to the court system.  Rather than affirm the principle established by Milligan, which stated that a US citizen, regardless of his conduct, is protected as an accused by the Bill of Rights, the Supreme Court referred to a dangerous decision by the FDR Court in 1942 known as Ex Parte Quirin, which held that the conduct of a citizen can determine whether he retains or loses the protections afforded by the Bill of Right.  In a decision written by Justice Sandra Day O’Connor, the Court in Hamdi stated unequivocally that “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” According to the majority on the Court, the mere labeling of a person as an “enemy combatant” removes the shield of the Bill of Rights and replaces it with a new judge-created system of minimal administrative process to “challenge” that designation.

The Quirin case, decided by a court packed and heavily influenced by FDR, a very powerful wartime president, should have never been decided as it was and should have never been “brought back to life” as a bright-line rule to bolster government conduct.  It should have remained a “one-time, expedient decision to justify the predetermined actions of President Franklin D. Roosevelt,” as Rhodes puts it.  On the night of June 13, 1942, eight German agents landed near Long Island, NY after traveling to the US by submarine to sabotage various US targets.  They were wearing German uniforms and carried explosives when they landed.  Thereafter, however, they buried their uniforms and supplies, and proceeded, in civilian dress, to various places in the United States.  All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They were subsequently arrested, charged with enemy conduct under the President’s Proclamation of July 2, 1942, detained, and, on the orders of President Roosevelt, tried by military commission. One of the men, Richard Quirin asserted that he was a US citizen. Like the others, Quirin was charged with “being an enemy of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States.”  The commission nonetheless found all eight men guilty and sentenced them to death.  [The President’s Proclamation declared that all persons who are citizens or subjects of, or who act under the direction of, any nation at war with the United States, and who during time of war enter the United States through coastal or boundary defenses, and are charged with committing or attempting to commit sabotage, espionage, hostile acts, or violations of the law of war, “shall be subject to the law of war and to the jurisdiction of military tribunals.” It did not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case].

In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, (including Quirin as an American citizen), as spies without uniforms (violating the law of war) whose purpose was sabotage, violated the law of war and were therefore unlawful “enemy combatants.”  The Court noted that it has long been an accepted practice by our military authorities to treat those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, as “unlawful combatants” punishable as such by military commission. According to Chief Justice Stone: “This practice, accepted and followed by other governments, must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.”  Noting that Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants under the Proclamation, and the German saboteurs were indeed “unlawful enemy combatants,” the Court therefore determined that the President had not exceeded his power.  Since 1942 this decision hung around, waiting for the next wartime president to resurrect its powers.  While the Milligan decision was concerned with the status of the detainee (ie, whether he fit into any of the two categories for which military law applies: US soldier or enemy) and declined to make the leap that an American citizen can be classified as an ‘enemy’ for justice sake, the Quirin decision arrived at the opposite position. After Quirin, we are only concerned with the actions of the accused (whether or not his actions reduce him to “enemy combatant status.  The Milligan court got it right.  In order to prevent the possible abuses of an Executive who might want to charge citizens with enemy status as a means to stifle political opposition, the Supreme Court urged future courts to diligently safeguard and uphold the Bill of Rights.  Justice Davis, who wrote the opinion in the Milligan decision advised:

“…… These provisions [Bill of Rights], after a lapse of more than seventy years, are (now) sought to be avoided. Those great and good men who wrote the Constitution 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. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”

The NDAA, which codifies the decisions in Quirin and Hamdi, allows the President to suspend fundamental civil rights for those he suspects of waging war or aiding/comforting the enemy (… being a “belligerent”), to detain them indefinitely, torture them, and even kill them, without any of the procedural protections of our Bill of Rights: No Grand Jury indictment; no trial by jury with its requirement of a unanimous verdict of twelve of one’s peers; no possibility of an unreviewable acquittal and immunity from further prosecution; and no protection against compelled self incrimination. The presumption of innocence is gone, as is the requirement of a showing of guilt beyond a reasonable doubt. Instead, the government will enjoy a presumption that its allegations are accurate. The accused will have the burden of proving his innocence, but will have no right to compulsory process of witnesses and no right to confront the secret evidence and witnesses against him.  The bill was supported by US legislators who claim that it cannot be used to target US citizens.  Obviously, they fail to be properly informed.  The bill is minimized by American citizens who believe that our government could and would never target American citizens and detain them indefinitely, denying them the protections under the Constitution.  Obviously, they fail to understand history.

In the Virginia Ratifying Convention on June 6, 1866, Governor Randolph addressed the weaknesses of the proposed Constitution which at the time lacked a Bill of Rights:

“There is one example of this violation in Virginia, of a most striking and shocking nature — an example so horrid, that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house, that a certain man (Josiah Philips) had committed several crimes, and was running at large, perpetrating other crimes. He therefore moved for leave to attain him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government?  Is this compatible with the spirit of freedom?  This, sir, has made the deepest impression on my heart, and I cannot contemplate it without horror. There are still a multiplicity of complaints of the debility of the laws. Justice, in many instances, is so unattainable that commerce may, in fact, be said to be stopped entirely. There is no peace, sir, in this land. Let us judge from the fate of more ancient nations: licentiousness (immorality) has produced tyranny among many of them: it has contributed as much (if not more) as any other cause whatsoever to the loss of their liberties. I have respect for the integrity of our legislatures; I believe them to be virtuous; but as long as the defects of the Constitution exist, so long will laws be imperfect.”

Rep. Ron Paul described the NDAA as “a bold and dangerous attempt to establish martial law in America.”  He said: “The Bill of Rights has no exemptions for ‘really bad people’ or terrorists or even non-citizens. It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the bill of rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror. This is a very dangerous development indeed. Beware.” Stewart Rhodes, founder and president of Oath Keepers and a Yale Law graduate, described the bill as waging war on the American people. And Rep. Justin Amash commented that the NDAA was “carefully crafted to mislead the public.”

Rhodes also is of the opinion that “no greater threat to our Constitution and our Bill of Rights has ever existed than the current doctrine of “Enemy Combatant Status” which has (been recognized by the Supreme Court in Hamdi v. Rumsfeld and has) essentially been codified in the NDAA.  This doctrine is like a toxic, poisonous weed that, if not pulled out by the roots, will grow to choke and kill the tree of liberty.  It threatens to wipe out our Bill of Rights and plunge us into a nightmare of military supremacy over civilian power.”

Should the American people wait for Congress to make things right?  Should they wait for Congress to remove the offensive language of the NDAA which turns the authority to wage war on terror on American citizens themselves?  Congress had the chance when the NDAA of 2012 recently came up for re-authorization. Rather than root out the evil, they voted to renew the bill, including the “indefinite detention  US citizens without charge” provision. Can the American people truly expect President Obama to relinquish the power to define and identify “belligerents” as he sees fit and to wage war as he would like?  He has already targeted and killed three American citizens, using unmanned drones, on classified information that his “team” collected and only he was authorized to review.

The ACLU has sued the Obama administration under the Freedom of Information Act (FOIA), seeking for force disclosure of the guidelines used by Obama and his officials to select which individuals (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security.

Nullification and Interposition are the answer.  What better scenario than the attack on fundamental American liberties by the NDAA to apply what Jefferson and Madison believed to be the “Rightful Remedy” to curb the excesses and abuses of the federal government?

On April 18, the Virginia legislature approved House Bill 1160 (H.B. 1160), commonly referred to  as the NDAA Nullification Act.  Support was overwhelming.  The House vote was 89-7 and the Senate concurred a few hours later, by a vote of 36-1.

The truth is that the bill is not quite a nullification bill.  The bill merely announces that the state wants nothing to do with it and will not allow any of its agencies or personnel to assist the federal government in applying and enforcing section 1021 of the National Defense Authorization Act (NDAA), which addresses the targeting and indefinite detention of American citizens.

Simply stated, the bill “Prevents any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of a United States citizen in violation of the United States Constitution, Constitution of Virginia, or any Virginia law or regulation.”  A true nullification bill would have prevented any enforcement whatsoever of the provision within the state borders.

The bill was introduced by VA delegate Bob Marshall and he defended the bill strongly on the legislation floor.  He spoke to the federal NDAA’s vagueness as well as the attempt by Congress and the President to use military law to detain American citizens as a way to circumvent the Treason Clause.  He also emphasized that under our system of dual sovereignty, state legislators have a responsibility to be watchdogs against the federal government.  Delegate Barbara Comstock, on the other hand, opposed the bill by stating that state legislators have no business questioning the federal government.

The reason the bill passed was not necessarily because of the noble intentions and affirmative action of the legislators.  It was not passed because of an inherent obligation on the part of the state of Virginia to keep the federal government within its bounds.  It was the will of the people that triumphed.  When the VA Senate originally tried to hold the bill over until next year’s session (effectively killing it), thousands of grassroots activists contacted their Senators to demand that they support it.  Another vote was taken quickly and the outcome was quite a different story.  It passed 39-1.  And so it had to head back to the House for approval, where again, parliamentary tricks and maneuvers were used to try to stall and kill it.  But again, the grassroots activists sprang into action.  Activists from groups from all across the political spectrum called and emailed their representatives urging to move the bill forward.  Finally, it passed.

But there was still one other hurdle.  VA Governor Bob McDonnell didn’t want to sign it.  He was clearly in a bind.  If he vetoed the bill, he would be able to keep in good standing with the “establishment” which supports NDAA detentions, but then he would become hugely unpopular with a huge portion of his state’s population – from all political parties – who wanted the state to take a stand against the indefinite detention of Virginians. On April 18, the deadline he had to either sign or veto the bill, he engaged in some behind-the-scenes negotiation with the sponsors and supporters. He recommended some changes, which were accepted, and the bill was enacted.  It will take effect on July 1st.

Delegate Bob Marshall released this statement:  ”Preserving public safety is the foremost priority of any government. Every day, state and local law enforcement personnel work together and work with the federal government to keep Virginians safe by fighting crime, responding to emergencies, and combating terrorism. The governor believes we must encourage and promote these collaborative efforts while ensuring that core constitutional principles enjoyed by all U.S. citizens are respected. He believes these standards are expected by all Virginians and want to take appropriate steps to reaffirm that position. In the governor’s view, this legislation now accomplishes that goal.”

Virginia, Maine, Utah, and Arizona have passed bills opposing and nullifying the NDAA, and many other states have introduced similar bills.  South Carolina will address a resolution just as soon as it goes into session.  Many local governments and groups have already passed resolutions.  On January 17th, 2012 the County Commissioners of Elk County, Pennsylvania unanimously passed a resolution opposing the NDAA, titled “To Preserve Habeas Corpus And Civil Liberties.”  Sheriff Mike McMoran, Comanche County, Kansas, Sheriff Grayson Robinson, Arapahoe County, Colorado, and former Sheriff Richard Mack have signed resolutions opposing the NDAA and ordering no one in their department to cooperate with the enforcement of the NDAA. And most recently, a Pennsylvania constable signed a resolution.

Groups across the political spectrum are supporting the nullification and/or repeal of the NDAA, such as the ACLU, Demand Progress, Downsize DC, Gun Owners of America, Japanese American Citizens League, the Tenth Amendment Center, Oath Keepers, Amnesty International, the Patriot Coalition, PANDA – People Against the National Defense Act, Rhode Island Liberty Coalition, the John Birch Society, Tea Party groups, Reclaim Democracy, Bill of Rights Defense Committee, People’s Campaign for the Constitution, Unitarian Universalist Service Committee, United Church of Christ Justice and Witness Ministries, United Methodist Church General Board of Church and Society, Physicians for Human Rights, Presbyterian Church (USA) Office of Public Witness, Rabbis for Human Rights –North America, and the National Religious Campaign Against Torture.  Ron Paul supports nullification as an American, a constitutionalist, and a Congressman, and he supported it publicly as a presidential candidate.

On May 16th, Rep. Justin Amash (R-MI), Rep. Adam Smith (D-WA), Rep. John Garamendi (D-CA), and Rep. Ron Paul (R-TX) held a press conference about the Smith-Amash Amendment to the NDAA, which would repeal the indefinite detention provisions. Unfortunately, that amendment failed in the US House by a vote of 182-236.  On the same day as the press conference, US District Judge Katherine Forrest in Manhattan ruled to temporarily block Section 1021 of the NDAA pending the result of the Hedges v. Obama case. This will be a case to watch.

The type of collaboration that took place in Virginia – between conservatives and progressives – is clearly what secured H.B. 1160′s success.  This might be the key to defeating the indefinite detention provisions of the NDAA in other states. It is certainly the way to pique the interest of state representatives who otherwise would choose not to take a position.

How Will North Carolina Respond?

My state of North Carolina is now one of about 11 states to address the NDAA.  Luckily, it is home to the founder and director of the Patriot Coalition, a devoted organization which serves as a watchdog over the legislation and conduct of the federal government. The Patriot Coalition and Oath Keepers have classified the NDAA as an “Intolerable Act,” referencing the time in our early history when England enacted a series of oppressive legislation on the colonies, denying them their rights as British subjects, and ultimately pushing them towards our independence.

According to the Patriot Coalition and Oath Keepers, the Intolerable Acts embrace two time periods in American history. The first such acts were implemented by the British Parliament and the King of England against the American Colonies just prior to the American Revolution, and were also known as the “Coercive Acts.”  The second such period of tyrannical oppression on the God-given Rights of the People began shortly after the attacks of 9/11/2001, and included several Acts of Congress that were signed into law by Presidents G.W. Bush and Barack Obama.

NC Rep. Glen Bradley introduced an anti-NDAA Resolution – H.R. 982 – in the general assembly a few weeks ago.  Rep. Bradley is a strict constitutionalist which apparently has made him fairly unpopular with the establishment in Raleigh.  The Patriot Coalition, which co-wrote the Resolution with Oath Keepers, along with many concerned citizens, have tried to convince legislators to take the resolution seriously and to push it through the Rules Committee so it can have its day on the legislature floor.

Apparently, there are certain members of the NC Assembly that don’t want to support the resolution simply because they don’t care for Rep. Bradley.  What a slap in the face for the people of North Carolina who care about how closely Big Brother is watching over them. The “litmus” test for whether to support legislation should NOT be whether the sponsoring representative wins a personality contest but rather whether the legislation is good for the citizens of North Carolina. H.R. 982 stands up for the Bill of Rights which protects each citizen from a government which may try to take away his rights to life and liberty.  Every citizen deserves to be charged with a crime before being detained, have the opportunity to challenge his detention, have his day in court, confront his accuser, and have access to the information and evidence used to bring charges against him.

And so the Patriot Coalition arranged a series of briefings for the benefit of educating the NC legislators and the public on the evils contained in the NDAA.  The briefings took place all day on May 30th and again on the afternoon of May 31st.

Mr. Stewart Rhodes, founder and president of Oath Keepers, volunteered his time and drove to North Carolina to offer a presentation to the NC General Assembly to educate them as to our history of applying the laws of war to American citizens, how that relates to the NDAA, and what the implications are in this slippery slope which now has the federal government spying on American citizens and taking away their liberty interests and in Obama’s case, their lives.

Towards the end of his most excellent presentation at the General Assembly on May 31st, Mr. Rhodes offered these words:

“Obama is claiming, like Bush before him, that he has plenary (complete; broad) inherent power to detain American citizens, but even if that is not so, he is claiming, as a fall-back, that Congress authorized that power under the 2001 AUMF.  What Congress did with the NDAA of 2012 was to affirm this interpretation. Congress affirmed that the Executive Branch has the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system (ie, suspend their rights under the Bill of Rights). What Congress said with the NDAA is to say that ‘Yes, when we voted to give authorization, we intended to allow for detentions and military trials.’ Pursuant to the laws of war, the president is authorized to use any and all necessary and appropriate force to detain covered persons [see Section 1021(b)(2)] pending the settlement of hostilities and these include: (1) detention until the end of such hostilities; (2) military trials; (3) transfer to any other competent tribunal; and (4) repatriation or transfer to any other country.

The AUMF has been interpreted by two administrations and by the Supreme Court in Hamdi v. Rumsfeld (2004) as applying to the detention of American citizens.  ‘Covered persons’ under the bill includes ‘any person.’  It doesn’t say ‘a person other than a US citizen.’  Lawyers use language for a reason.

So where are we now?  We are in a direct parallel to the abuses of the Crown and Parliament that were perpetrated on our forefathers.  The exact kind of violations of our traditional rights is going on right now by our own government.  It doesn’t matter a hill of beans if only one or two Americans are affected or if the NDAA is ultimately used to catch a few terrorists. It’s the principle that we must oppose before our government gets as bad as the English Crown in the years prior to the Revolutionary War.  I refuse to wait for a concentration camp full of Americans or a fellow veteran to be targeted and killed by a predator drone.

We are leaving life and death decisions in the hands of one man – the President.  It’s not about electing a man who won’t use such powers; it’s about making sure than no president can use those powers.  Concentrated power in a president and the power to indefinitely suspend habeas corpus were not part of the constitutional design that our forefathers fought for.  That is precisely what they fought against. Even King George never claimed a power that extreme.   Our fathers and grandfathers fought in World War II and in the Cold War era to liberate people all over the world from rulers who claim the same power that our current leaders have assumed for themselves. Yet we the people are silent.

One of the charges against King George is that ‘He has placed us outside of his protection and has waged war against us with his actions.’  I believe our current government is going down that same path.  They are claiming to have the power to apply the laws of war against us as if we were al Queda or the Taliban. There is no difference between you or a goat herder in Afghanistan, according to Obama (or Bush before him, unfortunately).  What can be done to a goat herder in Afghanistan?   Well, US military doesn’t have to go to an Afghan judge and get a warrant to arrest him for suspicion of being part of the insurgency. They can just go get him.  The US military also doesn’t have to put him on trial and convict him before they shoot him.  They can just kill, capture, or try such an Afghani goat herder in a military tribunal somewhere, simply on the suspicion of being part of the insurgency.

And now they claim the same can be done to us.

There is no distinction between the power being claimed by the Obama administration under this law and the power assumed by every dictator throughout the course of world history. Every dictator, whether it was Mussolini or Stalin or Pol Pot or Hitler, or some tin-hat dictator in South America – like Chavez.  Every one of them had (or has) the power to just point a finger at someone and say ‘He’s an internal enemy.’  Despots like Stalin, Mussolini, Hitler, or Pol Pot didn’t have to go to a judge for a warrant or provide those they rounded up a jury trial. They just took them out back and shot them.

Stalin used to have show trials.  He would torture someone until he confessed to conspiracy over something or another, and if that person were really tough and wouldn’t confess, Stalin would threaten to kill his family.  Sometimes, Stalin would bring in family members and force the suspected conspirator to watch them being tortured or killed.  This is the power of a dictator.  This is not the power of a president under a limited government constitution with a Bill of Rights. This is not the power of a president in this Republic.  This is an alien form to our system.  This claimed authority to apply the laws of war to us as citizens, as if we were foreign enemies, wipes away our constitutional rights and protections.  It destroys our constitutional or federal compact. It is a deal-breaker.  It puts us in the same position as our forefathers leading up to the American Revolution.

This legislature has an obligation and a duty to stand up to the actions of the federal government.  As James Madison put it in the Virginia Resolutions – the legislature has a duty to interpose itself between the people of that state and an unconstitutional action by the federal government.  He wrote that in response to the Alien and Sedition Acts, which were gross violations of the First Amendment.  Newspaper editors and publishers were being imprisoned simply for criticizing the actions of the administration.  Both Jefferson and Madison understood that such a serious and dangerous usurpation of power and violation of the rights enshrined in the First Amendment by the federal government had to be opposed by the state legislatures.

You should listen to Madison.  He’s the Father of our Constitution.

We’re pretty much in the same situation today.  The indefinite detention provision of the NDAA as against American citizens is just as serious and dangerous a usurpation of power and as egregious a violation of basic and treasured civil rights.  We need to put the proverbial genie back in the bottle because we’re in dangerous territory.  Now the Bill of Rights has essentially been reduced to the mere status of a statute rather than supreme law because Congress, enacting a bill such as the NDAA authorizing military force, is seen by the courts as setting aside the Bill of Rights for you and me and our children.  Very dangerous territory for sure.

We hope Congress will fix the problem, although it just had the chance to do so with the 2013 NDAA, but they failed us. So we’re going to have to fix it.  The States are going to have to fix it.  We have to rollback the power of the federal government, and in this case, the power of the Executive.  At the very least, we have to put them on notice.

Consider what Montana did in the wake of the Heller decision – the historic 2nd Amendment case.  [District of Columbia v. Heller, 2008].  As the Supreme Court was deliberating the case (whether Mr. Heller had an individual right under the 2nd Amendment to own and possess a gun in Washington DC), the Montana state legislature ruled that if the Court did not uphold the 2nd Amendment as an individual right but rather interpret it as a collective right (only applying when individuals are organized in a militia), they would consider it a violation of the compact, or agreement, under which Montana agreed to enter and be part of the Union.

This is not a Right or Left issue.  It’s a Bill of Rights issue.  It’s an American issue.  Hitler held an arbitrary power to detain and execute the German people.  I don’t understand why people don’t get that.

We’ve all heard people ask the question: ‘How could people as smart and cultured as the Germans allow someone like Adolf Hitler to come to power and do what he did?’  —  Well, now we know.  We are watching the same thing happen right here in the United States.”

How many legislators do you think attended this presentation, which took all of about 40 minutes and which was offered conveniently in one of the large, comfortable committee rooms of their office building?  Only four legislators attended.  There were far more organizations and ordinary citizens who attended.  [See reference section for the video of that presentation]

How can citizens expect liberty to last when this is the kind of response we get from that those entrusted with preserving the system provided to us by our Founders.   How can citizens help but become apathetic and cynical with respect to government?

As brilliant constitutionalists such as Judge Andrew Napolitano wonder:  If we allow the government to target American citizens who might be hostile to the United States (as the NDAA allows), how long do you think it will be before the government uses the same power to go after those who are political opponents?  Will we see the day when Americans are entitled to their protections  under the Bill of Rights so long as they are citizens “in good standing”?  Will the government determine (such as what Homeland Security is currently doing) what it means to be “in good standing”?

North Carolina was the first state to urge the Continental Congress to adopt a formal declaration of independence from England.  On May 20, 1775, Mecklenburg County adopted a resolution (the Mecklenburg Resolution) declaring that the British Parliament was an enemy of America and  its people and violates the rights of man, and therefore the citizens of that county dissolve the political bands which connect them with the Crown.  The Halifax Resolves, which were passed on April 12, 1776 by the Fourth Provincial Congress of North Carolina that met at Halifax County, were the very first instructions by any colony that authorized its delegates to the Continental Congress to vote for independence from Great Britain. 83 members voted unanimously to authorize North Carolina’s delegates to vote for independence.  Finally, North Carolina wouldn’t ratify the US Constitution until a Bill of Rights was added; it wouldn’t even consider joining the Union until individual rights were sufficiently protected from the reaches of a federal government.  It ratified the Constitution on November 21, 1789 and was the second to last state to do so.  Rhode Island was the last state to ratify and only did so by 2 votes.

North Carolina seems to have a legacy to live up to.  INDIVIDUAL LIBERTY COMES FIRST !!   North Carolinians have always been patriots and not nationalists.  We’ve pledged our loyalty to our country (and what it stands for) and not to our government. We’ve been beaten down since the Civil War and coerced by a government determined to weaken the states so that boundaries can become blurred, but my hope is that the spirit of 1775 and 1776 and 1789 isn’t dead.

During the question-and-answer period following Mr. Rhodes’ presentation, a young man in the audience posed the following to Mr. Rhodes: “I’m a father of 4 young children and I’m a member of a Tea Party. I’m fairly vocal in opposing my opinions of what Obama is doing.  We all know that Homeland Security has targeted right-leaning groups such as veterans, gun-rights activists, Christian groups, and Tea Party folks as domestic terrorists. We all heard about what happened to that Tea Party guy out in Asheville. How do I know that some night when I’m driving home and a police officer stops me for a ‘traffic violation,’ I won’t be hauled off to some detention center or shipped to Guantanamo Bay, never to see my wife and kids again, and maybe tortured for what I believe?”  [I’ve done my best to recall how he posed this question]

Rhodes’ response was quite a shock to me.  He said that we couldn’t imagine how many people have asked him the very same thing all over the country when he travels and speaks.

Guess what?  The people fear their government.  That’s tyranny.

It is said that NC House Majority Leader Paul “Skip” Stam opposes nullification. He sees it as a racist doctrine.  And yet he is an attorney.  According to Stam’s position, if our current president was Hitler and he just passed a bill suspending the civil rights of all those who did not vote for him and enacted legislation announcing that Jews were no longer citizens and could not own property or own a business, then North Carolinians would be have to help build concentration camps and simply hope that the next election votes him out of office and ushers in a new Congress which would repeal the laws.  Yet as we saw under Hitler, so much can happen once civil rights are denied the people.

The success of H.R. 982 will have much to do with Rep. Stam’s character as a public official.  Will he honor his oath and defend the Constitution of the United States and the NC constitution as well?  Or will he kill a bill simply because he doesn’t like Rep. Bradley.  Will he take the notion of dual sovereignty seriously or continue to believe that states have no right to question the authority of the federal government?

Conclusion

The first duty of a person who has taken an oath to the Constitution is to support and protect the Constitution of the United States – from enemies foreign and domestic. The primarily purpose of the Constitution is to confine and constraint the federal government, define limits of government with respect to individuals, and protect those fundamental rights to Life, Liberty, and Property.  It does not give “We the People” our fundamental rights, because our rights, under Natural Law, predate the Constitution and derive from our relationship with the Creator.

Never in the history of the United States have our citizens pledged their allegiance to the federal government. If a public servant determines a law or proposed law to be unconstitutional, he has an affirmative and active duty to enlighten his fellow representatives as well as citizenry. First, he is obligated to not support or enforce such law. Second, he is obligated to sound a public alarm regarding any such legislation or law and to rally public action against it. The duty under the Constitution is to keep the federal government in check. The ultimate goal of Nullification, of course, is to safeguard individual liberty and to preserve our Republic.  We don’t ever want to be in the situation of ancient Rome, as depicted in the greatest movie of all time, Gladiator, where the Senate, the voice of the people, was losing significance and the Republic itself was in its last days.  Emperor Marcus Aurelius summed up what had become of Rome: “There was once a dream that was Rome. You could only whisper it. Anything more than a whisper and it would vanish… it was so fragile. And I fear that it will not survive the winter.”  Our republic is also perilously frail.

The National Defense Authorization Act is a perfect example of when nullification and interposition should be used in current times, or as Thomas Woods’ would say – “to resist federal tyranny in the 21st century.”  The post 9/11 government has put this country on a dangerous slippery slope that Germany knows all too well.  When Hitler became Chancellor of the Reich on January 30, 1933, a fire broke out “suspiciously” during the night of February 27, which destroyed the Reichstag and set in motion a series of actions which took the civil liberties away from political dissidents, then certain undesirables, and finally the Jews.  (The “suspicious” fire was set on Hitler’s own orders, in order to set his agenda in motion).

James Madison spoke before the Virginia Ratifying Convention on June 16, 1788 and warned: “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”

Justice Jackson warned about the responsibility the Supreme Court holds with respect to the protections afforded the Bill of Rights when he wrote his stirring dissent in Korematsu v. United States, the 1944 case which challenged the internment of Japanese citizens during World War II:

“Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.”

We can’t allow the erosion of our most important constitutional protections just so that the government can catch one or two bad guys.

References: Thomas Woods, Nullification: How to Resist Federal Tyranny in the 21st Century, 2010; Regnery Publishing; pg. 3.

Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1788; New York: Mentor Books, 1961), No. 45, p. 292-93.

Thomas Jefferson, “Draft Kentucky Resolves of 1798,” The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors ME 17:387.

Letter to Major John Cartwright, 5 June 1824; in The Writings of Thomas Jefferson , ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), 16:47. See also ibid., 15:328; The Federalist Papers, No. 39, p.245.

United States v. Sprague, 282 U.S. 716, 733 (1931).

Marbury v. Madison, 5 U.S. 137 (1803).

Hamdi v. Rumsfeld, 542 U.S. 507 (2004)

Ex parte Milligan, 71 U.S. 2 (1866).

Ex parte Quirin, 317 U.S. 1 (1942).

Korematsu v. United States, 323 U.S. 214 (1944).  [Jackson’s dissent at pp. 245-246]

Remarks in the Virginia Ratifying Convention, June 6, 1788.  Referenced at:   http://www.constitution.org/rc/rat_va_05.htm

Reference:  H. D. Hazeltine, M.A., Litt.D., “Magna Carta and the US Constitution,” The Forum.  Referenced at:  http://oll.libertyfund.org/index.php?option=com_content&task=view&id=604&Itemid=284

Stewart Rhodes, “Understanding Enemy Combatant Status and the Military Commissions Act, Part I. Enemy Combatant Status: No More Pernicious Doctrine, Dirt Rhodes Scholar, October 28, 2006.  Referenced at:  http://stewart-rhodes.blogspot.com/2006/10/enemy-combatant-status-no-more.html

Stewart Rhodes, “Solving the Puzzle of Enemy Combatant Status,” 2004.  Referenced at:  http://jpfo.org/pdf/sr-enemy.pdf

Stewart Rhodes, founder and president of Oath Keepers, talks about the danger of applying military law (law of war) to American citizens (May 31, 2012) – http://www.livestream.com/theintolerableacts

Glenn Greenwald, “Obama Takes Bush’s Secrecy Games One Step Further,” Salon, May 26, 2012.  Referenced at:  http://www.salon.com/2012/03/26/obama_takes_bushs_secrecy_games_one_step_further/

Michael Boldin, “NDAA Nullification Becomes Law in Virginia. Effective July 1st,” The Tenth Amendment Center, April 18, 2012.  Referenced at:  http://blog.tenthamendmentcenter.com/2012/04/ndaa-nullification-passes-in-virginia-governors-signature-expected-shortly/

“Pennsylvania Constable to Nullify NDAA and Patriot Act,” Before It’s News, May 21, 2012.  Referenced at:  http://beforeitsnews.com/story/2162/657/Pennsylvania_Constable_to_Nullify_NDAA_and_Patriot_Act.html

H.B. 1160http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB1160 Text:   http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+HB1160H2+pdf

The Patriot Coalition –  http://patriotcoalition.com/

The Intolerable Acts Action Center –  http://www.theintolerableacts.org/

The Mecklenburg Declaration of May 20, 1775 –  http://www.hartslog.org/declar/1775.htm

NOTES: 1.  Judge Spencer Roane would have been appointed Chief Justice of the Supreme Court by Thomas Jefferson had President John Adams not appointed John Marshall in the waning hours of his presidency].

2.  Note that in the 1790′s, the Twelfth Amendment had not yet been added to the Constitution and so the candidate who received the greatest number of electoral votes became president and the second highest vote-getter became the vice-president].

3.  Unfortunately, the Kentucky Resolutions of 1799, as important a political document as it was, was largely overlooked by the rest of the country because George Washington, the Father of our County, passed away just weeks after they were ratified and his death dominated national news and national publications].

4.  Notice how our Founders viewed our new nation, after the ratification of the Constitution – by looking at their writings:  (just 2 examples are given below, but there are countless others)

On November 26, 1787, James Wilson gave the following remarks in Pennsylvania’s ratifying convention: “Governments, in general, have been the result of force, of fraud, and accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they would wish that they and their prosperity should live.”

On July 19, 1791, George Washington wrote these words in a letter to Catherine Macaulay Graham: “The United States enjoy a scene of prosperity and tranquility under the new government that could hardly have been hoped for.”

In both quotes, notice how the verb following “United States” denotes a ‘plural’ subject… that is “united” states. The term “united” describes the status of the states.  The verb following “United States” doesn’t end with an “s” and therefore does NOT indicate a singular unit; it does not indicate a singular subject.  The term “United States” refers to the status of states and not the name of the country.

5.  Read how a Tea Party member in Ashville (NC) had a surprise visit by the Feds and a local police officer because he wrote to get an EPA administrators contact info. The account is unbelievable and appalling. The interrogation of Mr. Keller is beyond anything a reasonable citizen should expect from government. Decent, law-abiding citizens have the fundamental right to “be left alone” by government, as Supreme Court Justice Brandeis once announced. This concept of the “right to be left alone” dates back to a 1928 Supreme Court wiretapping decision (Olmstead v. United states), in which Justice Brandeis wrote: “The protection guaranteed by the amendments of the Constitution is much broader in scope. The makers of our Constitution understood to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the government the right to be left alone – the most comprehensive of rights and the right most valued by civilized men.”

Please pass on and let everyone know that “Big Brother is Watching.”

“Larry Keller’s visit with Special Agents from the EPA,” Posted May 10, 2012.  http://ashevilleteaparty.org/?p=3690

Larry Keller of Buncombe, GOP member and part of the WNC Objectivist group had a horrible encounter with Big Brother feds.  Below is the story – “Our Government at Work.”  [Western North Carolina Objectivists; objectivism is the philosophy of Ayn Rand -“I swear, by my life and my love of it,that I will never live for the sake of another man, nor ask another man to live for mine.”]

Our Government at Work –

On Wednesday, May 2, 2012 at about 1:45 pm two Special Agents from the EPA and an armed police officer who stood 6’6” tall visited our house in Asheville, NC. Their visit was a total surprise as we had not received any communications requesting an appointment. The agents presented very official looking badges and asked if we could sit and chat awhile. We moved to the back porch and took our seats with the exception of the armed officer who stood by the door to the house the entire time.

Special Agent Michael Woods, who acted as the leader, then asked if I ran a business out of our house and if, what kind of business. What does that have to do with the EPA I thought. I answered yes – I own and run a consulting business focused on data visualization and analysis. After explaining my business to them, he then asked if I had ever sent any emails to anyone in the EPA. I answered no initially and then recalled that I had tried to reach Dr. Al Armendariz, the then EPA Regional Administrator who had made comments about crucifying big oil companies last week. Further, using Google, I had searched for his contact information and landed on his domain which was a subset of Southern Methodist University. There Dr. Armendariz tells visitors to email Dr. David Gray, Director of External Affairs for the EPA. I sent an email to Dr. Gray and stated the following:

“Hello Mr. Gray-Do you have Mr. Armendariz’s contact information so we can say hello?”

At this point Agent Woods reach into a file and from it he pulled out a copy of my email to Dr. Gray. He handed it to me and I asked what was there about the content that justified their driving across the state of NC to visit me with no prior warning. The other agent then stated that my choice of words in the email could be interpreted in many ways. At that point I asked them to be specific as they were wasting my time. I stated that I pay for agents’ salaries and that of the police officer and they have bigger fish to fry. Special Agent Woods then asked if I had ever been arrested – the answer was a swift no. I then asked for a copy of the email they presented and they said that was impossible as the investigation was not yet complete.

At this point I asked for business cards which they said they had when the first entered. Both agents suddenly discovered they were out of business cards. They left via the back staircase and to my shock the agents had parked their car almost blocking my driveway and the police officer parked in my neighbor’s driveway.

Welcome to the new America.

6.                              The Mecklenburg Declaration of May 20, 1775:

(1).  Resolved . . . That whosoever directly or indirectly abets, or in any way, form, or manner countenances the invasion of our rights, as attempted by the Parliament of Great Britain, is an enemy to his country, to America, and the rights of man.

(2).  Resolved . . . That we the citizens of Mecklenburg County, do hereby dissolve the political bands which have connected us with the mother country, and absolve ourselves from all allegiance to the British Crown, abjuring all political connection with a nation that has wantonly trampled on our rights and liberties and inhumanly shed innocent blood of Americans in Lexington.

(3).  Resolved . . . That we do hereby Declare ourselves free and independent people; that we are, and of a right ought to be, a sovereign and self-governing people under the power of God and the*General Congress; to the maintenance which independence we solemnly pledge to each other our mutual co-operation, our lives, our fortunes and our scared honor. *(Reference here was to the Provincial Congress of North Carolina.)

(4).  Resolved . . . That we hereby ordain and adopt as rules of conduct all each of our former laws, and that the crown of Great Britain cannot be considered hereafter as holding any rights, privileges, or immunities among us.

(5).  Resolved . . . That all officers, both civil and military, in the country, be entitled to exercise the same powers and authorities as heretofore; that every member of this delegation shall henceforth be civil officer and exercise the powers of a justice of the peace, issue process, hear and determine controversies according to law, preserve peace, union and harmony in the country, and use every exertion to spread the love of liberty and of country until a more general and better organized system of government be established.

(6).  Resolved . . . That a copy of these resolutions be transmitted by express to the President of the Continental Congress assembled in Philadelphia to be laid before that body.

7.           Model NDAA Nullification Resolution for States and Local Governments:

WHEREAS, the Constitution of the United States is the foundation of our nation’s rights and freedom, and the basis of our representative democracy; AND

WHEREAS, on December 15, 2011, the US Senate passed the conference report to H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012″ (NDAA); and on December 31, 2011, President Barack Obama signed that conference 10 report into law; AND

WHEREAS, Section 1021 of the NDAA authorizes, before a military commission, the military trial of American citizens and lawful residents accused of levying war against the United States or adhering to their enemies, giving them aid and comfort; AND

WHEREAS, Section 1021(c)(1) of the NDAA directly violates the right of the people against unreasonable seizure by allowing them to be snatched up (kidnapped) by the United States military, by the authority of the military alone, and taken to a military detention facility at Guantanamo Bay, Cuba, or to some other location, to be held in “(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force,” or, under Section 1021(c)(4), to be turned over to the custody or control of “any other foreign country, or any other foreign entity”;  AND

WHEREAS, under Section 1021(c), the American people can be treated exactly the same as any person captured on a foreign battlefield, such as Iraq or Afghanistan, where anyone who is suspected of being an unlawful belligerent in the war on terrorism, or of aiding belligerents, is simply picked up by the military and taken away to wherever the United States military sees fit, with no involvement by or access to civilian courts; AND

WHEREAS, Section 1021(b)(2) defines a person who can be targeted as “A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” ; AND

WHEREAS, “belligerency” is a term used in international law to indicate the status of two or more entities, generally sovereign states, being engaged in a war, yet the NDAA is purported to address the war on terror, which is a ‘tactic’ and not a sovereign state; AND

WHEREAS, the proper charge for American citizens and lawful residents accused of levying war against the United States or giving aid and/or comfort to the enemy is Treason, as defined in Article III, Section 3, which provides certain evidentiary and procedural protections to said American citizens and residents, including the requirement of presenting two witnesses to the same overt act or a confession in open court, before they can be found guilty by a jury of their peers; AND

WHEREAS, the indefinite military detention of any person without trial violates the 4th, 5th and 6th amendments of the Constitution of the United States, Article III of the Constitution of the United States, and the Posse Comitatus Act; AND

WHEREAS, the NDAA offends the ideals of presumed innocence and right to a fair trial with all its procedural safeguards, including the threshold right of first being charged with a crime before taken into custody, on which our nation was founded, and which generations of activists and military servicemen and women have fought to preserve; AND

WHEREAS, the NDAA’s detention provisions could allow the recurrence of torture in military detention in violation of the 8th Amendment; AND

WHEREAS, the NDAA’s detention provisions could, under Humanitarian Law Project v. Holder (2011) and Hedges v. Obama (2012), allow the targeted detention of activists, journalists and other Americans exercising their First Amendment rights despite the crucial role of Free Speech in preserving liberty; AND

WHEREAS, the language of the aforementioned sections of the NDAA is vague enough to also potentially chill the first amendment right of assembly and the second amendment right to have and bear arms; AND

WHEREAS, the detention provisions could force US military service members to serve as domestic jailers, a role for which they are neither trained nor equipped, nor is ever appropriate; AND

WHEREAS, a government that does what is permitted under Section 1021(c) to its own people is consistent with the behavior of every despotic and totalitarian regime in world history; AND

WHEREAS, the very reason for the Bill of Rights is to prevent arbitrary and capricious conduct by the government against its own citizens; AND

WHEREAS, the very reason for the Article III Treason clause is to provide to those citizens and legal residents who have engaged in war against their country or provided aid and comfort to the enemy certain protections that were absent in such arbitrary, corrupt, and maligned courts as the Star Chamber Courts, which were notorious during the 17th century to prosecute the political enemies of James I and his son Charles I.  The judges appointed to the Star Chamber were the King’s own hand-picked men. The courts were known for their abuses, corruption, and misuse of authority because of such concentration power in an autonomous group, not subject to the checks and balances of common law and which held its proceedings in secret; AND

WHEREAS, a government that is permitted to apply law of war provisions to its citizens for being “belligerents” can easily take those powers to target citizens for political opposition; AND

WHEREAS, the State (or City) of _________   re-affirms its allegiance to the US Constitution and Bill of Rights, as intentioned by the States when they ratified them; AND

WHEREAS, the State (or City) of _________   re-affirms its respect and gratitude for our Founding Fathers for their knowledge and command of history and government and for crafting our founding documents so brilliantly and so protective of individual liberty; AND

WHEREAS, the State (or City) of _________   re-affirms its gratitude for the supreme sacrifice of those in the Armed Forces who have died in battle in the name of those same cherished rights and liberties; AND

WHEREAS, state governments and local governments have a right and a duty to its citizens to protect their sovereign and civil rights under the doctrine of federalism from federal legislation and policy that exceeds the power delegated to it under the US Constitution;  AND

WHEREAS, the Article VI, clause 2 of the Constitution itself acknowledges that only laws made pursuant to the powers granted in the US Constitution are to be considered the supreme law of the land; all laws and policy enacted in excess or abuse of such powers are void from their inception and have no force of law, thereby need not be enforced;  AND

THEREFORE, BE IT RESOLVED that the State (or City Council) of _______________, acting in the spirit of the 1776, pursuant to intentions of the federal compact, and answering the call of history, does hereby declare that the aforementioned sections of the NDAA offend the Bill of Rights and therefore instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.

OPTIONAL (the sections below are optional, but recommended):

BE IT RESOLVED that the State (or City Council) of _______________, does hereby declare that persons holding executive offices in this State, including sheriffs, police, and town clerks, are restrained by the duties and allegiance they owe this State and the People from affording any official conduct, aid, or co-operation in the execution in the aforesaid unconstitutional act, and that no court in this State shall relinquish jurisdiction over any citizen to any federal court.

BE IT RESOLVED, that no agency, political subdivision, employee, or member of the military of ________ (State) will be permitted to assist an agency of the armed forces of the United States in the investigation, prosecution, or detention of a citizen pursuant to the NDAA, in violation of the United States Constitution and the Constitution of ______ (State).

BE IT RESOLVED, that no federal agent shall be permitted to exercise jurisdiction over any citizen in this State pursuant to the NDAA.

The Governor (or Mayor) of ___________________ shall send copies of this resolution to our US Congressman and Senators, the US Senate Committee on the Judiciary, the US Senate Select Committee on Intelligence, the US House of Representatives Committee on the Judiciary, the US House of Representatives Permanent Select Committee on Intelligence, the US Attorney General, and the President of the United States.