A Government of Implied Powers?

  by Diane Rufino

This article is in response to an article in the Beaufort Observer entitled “What Needs to be Done about Abuse of Power by the Federal Government?” which in turn was based on Calvin H. Johnson’s article “The Constitution or Liberty” in  The Freemen.

The US Constitution was designed to accomplish two goals:  Form a government vigorous enough to conduct the affairs of the nation (overcome the limitations of the Articles of Confederation), yet limited enough so that it did not endanger the rights of its citizens or encroach upon the sovereign powers of the States (other than those expressly delegated to it by them).

Stanton Richmond wrote an article that claims that the drafters of the Constitution had no intention of limiting the national government’s powers to the 16 items listed in Article I, Section 8, of the Constitution. He cites the fact that they declined to incorporate a provision from the Articles of Confederation into the new Constitution which read: “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.” He asserts that they did so because they believed the federal government needed implied powers.  Richmond is correct when he says that the Constitution needed to provide more power to the government, but the only real difference in the government provided by the Constitution is the power to regulate commerce and an expanded taxing power.  In Federalist No. 61, James Madison wrote: “What are to be the objects of federal legislation? Those which are of most importance are commerce, taxation, and the militia.” Recall that we nearly lost the Revolutionary War because the provisional government could not enforce taxation from the states.  It could only “ask” them to send funding for the war, and many states did not answer that request.

The opening phrase to Article I reads: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”  Our framers did not intend this as an independent, limitless grant of power.  It was included to ‘qualify’ the powers set forth in Section 8.  It was not, as Mr. Richmond, indicative of a government that was intended to have both express and expansive implied powers. I will explain this more fully below, and through examples.

When the Constitution was drafted in Philadelphia in September 1787, not all the states were pleased with it.  Many weren’t.  Many were skeptical and distrustful.  In fact, a series of essays, articles, and papers appeared in papers all over the colonies criticizing the new Constitution and urging that it not be adopted.  These were called the Anti-Federalist Papers.  One of the most energetic criticism of the proposed new government was its enlarged taxing power. The states felt it would become so extensive and unlimited that it would cripple state legislatures and therefore swallow up the states, ultimately forming the very government that Madison initially proposed — a nationalist system (concentrated national government, with weak states).  The very presence and participation of Alexander Hamilton at the Constitution Convention also gave the states great worry for he was a known monarchist. He wanted to replicate the British system in America with a powerful central government and a president who would be appointed for life.  That’s why Patrick Henry declined to participate as a delegate for Virginia at the Convention. He said: “I smell a Rat in Philadelphia, tending towards the Monarchy.”

In Anti-Federalist No. 33, for example, Brutus (pseudo name) wrote about the states’ fear with respect to the taxing power:

       ”This (taxing) power, exercised without limitation, will introduce itself into every corner of the city, and country-it will wait upon the ladies at their toilet, and will not leave them in any of their domestic concerns; it will accompany them to the ball, the play, and assembly; it will go with them when they visit, and will, on all occasions, sit beside them in their carriages, nor will it desert them even at church; it will enter the house of every gentleman, watch over his cellar, wait upon his cook in the kitchen, follow the servants into the parlor, preside over the table, and note down all he eats or drinks; it will attend him to his bedchamber, and watch him while he sleeps; it will take cognizance of the professional man in his office, or his study; it will watch the merchant in the counting-house, or in his store; it will follow the mechanic to his shop, and in his work, and will haunt him in his family, and in his bed; it will be a constant companion of the industrious farmer in all his labor, it will be with him in the house, and in the field, observe the toil of his hands, and the sweat of his brow; it will penetrate into the most obscure cottage; and finally, it will light upon the head of every person in the United States. To all these different classes of people, and in all these circumstances, in which it will attend them, the language in which it will address them, will be GIVE! GIVE!  A power that has such latitude, which reaches every person in the community in every conceivable circumstance, and lays hold of every species of property they possess, and which has no bounds set to it, but the discretion of those who exercise it – I say, such a power must necessarily, from its very nature, swallow up all the power of the state governments. I shall add but one other observation on this head, which is this: It appears to me a solecism, for two men, or bodies of men, to have unlimited power respecting the same object. It contradicts the … maxim, which saith, “no man can serve two masters,” the one power or the other must prevail, or else they will destroy each other, and neither of them effect their purpose. It may be compared to two mechanic powers, acting upon the same body in opposite directions, the consequence would be, if the powers were equal, the body would remain in a state of rest, or if the force of the one was superior to that of the other, the stronger would prevail, and overcome the resistance of the weaker. But it is said, by some of the advocates of this system, that “the idea that Congress can levy taxes at pleasure is false, and the suggestion wholly unsupported. The preamble to the Constitution is declaratory of the purposes of the [our] union, and the assumption of any power not necessary to establish justice, etc., provide for the common defense, etc., will be unconstitutional.

…. Besides, in the very clause which gives the power of levying duties and taxes, the purposes to which the money shall be appropriated are specified, viz., to pay the debts and provide for the common defense and general welfare.”‘

        Neither the general government nor the state governments ought to be vested with all the powers proper to be exercised for promoting the ends of government. The powers are divided between them-certain ends are to be attained by the one, and certain ends by the other; and these, taken together, include all the ends of good government. This being the case, the conclusion follows, that each should be furnished with the means, to attain the ends, to which they are designed.

       To apply this reasoning to the case of revenue, the general government is charged with the care of providing for the payment of the debts of the United States, supporting the general government, and providing for the defense of the union. To obtain these ends, they should be furnished with means. But does it thence follow, that they should command all the revenues of the United States? Most certainly it does not. For if so, it will follow, that no means will be left to attain other ends, as necessary to the happiness of the country, as those committed to their care. The individual states have debts to discharge; their legislatures and executives are to be supported, and provision is to be made for the administration of justice in the respective states. For these objects the general government has no authority to provide; nor is it proper it should. It is clear then, that the states should have the command of such revenues, as to answer the ends they have to obtain. To say, that ‘the circumstances that endanger the safety of nations are infinite,’ and from hence to infer, that all the sources of revenue in the states should be yielded to the general government, is not conclusive reasoning: for the Congress are authorized only to control in general concerns, and not regulate local and internal ones… The peace and happiness of a community is as intimately connected with the prudent direction of their domestic affairs, and the due administration of justice among themselves, as with a competent provision for their defense against foreign invaders, and indeed more so.

       Upon the whole, I conceive, that there cannot be a clearer position than this, that the state governments ought to have an uncontrollable power to raise a revenue, adequate to the exigencies of their governments; and, I presume, no such power is left them by this constitution.”

The Federalist Papers were the answers to the criticisms and distrusts of the Constitution by the States articulated in the series of Anti-Federalist Papers. The Federalist Papers were written  by Alexander Hamilton and John Jay (both of NY) and by James Madison (of VA).  It was no insignificant coincidence that these men wrote them. At the time, the two largest and most powerful states, New York and Virginia, were not supportive of the Constitution and it was feared that if these states did not ratify, the hope for a contiguous Union would be frustrated.  And so these men wrote the series of papers to explain the meaning and intent of the Constitution, to offer assurances, and to dispel fears (particularly that the proposed government would take too much power from the States), with the ultimate hope that it would convince the delegates of NY and VA to ultimately ratify (which they eventually did in 1788).

Alexander Hamilton answered the criticisms of anti-Federalist No. 33 in Federalist No. 31: “As revenue is the essential engine by which the means of answering the national exigencies must be procured, the power of procuring that article in its full extent must necessarily be comprehended in that of providing for those exigencies.”  [Here we see the beginning of the explanation of the “Necessary and Proper” Clause, which is continued in No. 33].  In No. 31, Hamilton also assured: “The State governments, by their original constitutions, are invested with complete sovereignty.”

In Federalist No. 32, he continued:

       “Although I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.

       An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally CONTRADICTORY and REPUGNANT.

       The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power; and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States.”

As stated above, Federalist No. 33 discusses the “Necessary and Proper” Clause.  The “Necessary and Proper Clause” is the last clause of Article I, Section 8 and reads: “Congress shall have the power… To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”   In No. 33, Hamilton wrote:  “But it may be again asked, Who is to judge of the NECESSITY and PROPRIETY of the laws to be passed for executing the powers of the Union? I answer, first, that this question arises as well and as fully upon the simple grant of those powers as upon the declaratory clause; and I answer, in the second place, that the national government, like every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.”

It should be noted that contracts often include a provision which grants authority to do those things that are necessary and proper to fulfill the obligations under the agreement.

The way I read the Constitution, in light of what is explained by Hamilton in Federalist No. 31, 32, and 33, and in light of what is written in the totality by the remainder of the Federalist Papers, is this:  There is some authority vested in the federal government to define the scope of its powers, but only to the extent that any laws made to govern in such areas must be both “necessary” and “proper.”  The word necessary means “needful, indispensable, required..”  Since there is an clear effort on the part of our drafters and authors of the Federalist Papers to assure the States that their sovereign rights would remain intact (minus those powers delegated to the federal government) and their status would not be compromised because of the creation of a federal government, it is more than reasonable to assume that the scope of federal power would be limited to the division established in the Tenth Amendment.  Thus, all grants of authority to the federal government are limited by what is absolutely necessary and proper and by reserved state rights.  Since the Federalist Papers were written as assurances to the States, they were justified in relying on them when they ratified the Constitution.

This is just one example of an implied power or an elastic power.  [See later for a brief overview of the case interpreting the “Necessary and Proper” clause –  McCulloch v. Maryland (1819)].  The bottom line is that unless the federal government is given authority to legislate in a particular area or to use executive powers in certain situations, the government is prohibited and the States retain the powers (under the Tenth Amendment).

But the real test of intent is what the States themselves explained in their ratification conventions, because their ratification was premised on THEIR UNDERSTANDING of its terms and intent, and what assurances were given them.  The states were the “signing parties” to the Constitution which then established the federal government. The significance of the states in the process is just like a buyer signing a contract with a seller for the purchase of an expensive house. The parties ultimately sign that contract only after thorough discussion and explanation of the conditions and provisions because they know their signature will bind them to the obligations and responsibilities (and the benefits).  The contract cannot take on new meaning in the future without relieving the signing parties of their obligations.  A contract that is altered allows the parties to walk away.

But don’t take it from me. James Madison himself urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Jefferson agreed as well.  He said: “Should you wish to know the meaning of the Constitution, consult the words of its friends.”

It would be ridiculous to think the states would have assented agreement to a government with enough powers to swallow them up and destroy them.

For example, let’s look at the Virginia and NC Ratification Conventions.  In June 1788, at the Virginia Convention, delegate Patrick Henry spoke out aggressively against the ratification of the Constitution. He feared the government would have a tendency to concentrate power and destroy the sovereignty of the States, thereby destroying the liberty rights and interests of the people.  In his opening speech, he spoke:

Liberty, the greatest of all earthly blessing — give us that precious jewel, and you may take everything else! But I am fearful I have lived long enough to become an old-fashioned fellow. Perhaps an invincible attachment to the dearest rights of man may, in these refined, enlightened days, be deemed old-fashioned; if so, I am contented to be so. I say, the time has been when every pulse of my heart beat for American liberty, and which, I believe, had a counterpart in the breast of every true American; but suspicions have gone forth — suspicions of my integrity — publicly reported that my professions are not real. Twenty-three years ago was I supposed a traitor to my country? I was then said to be the bane of sedition, because I supported the rights of my country. I may be thought suspicious when I say our privileges and rights are in danger. But, sir, a number of the people of this country are weak enough to think these things are too true. I am happy to find that the gentleman on the other side declares they are groundless. But, sir, suspicion is a virtue as long as its object is the preservation of the public good, and as long as it stays within proper bounds: should it fall on me, I am contented: conscious rectitude is a powerful consolation. I trust there are many who think my professions for the public good to be real. Let your suspicion look to both sides. There are many on the other side, who possibly may have been persuaded to the necessity of these measures, which I conceive to be dangerous to your liberty. Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.

       I am answered by gentlemen that, though I might speak of terrors, yet the fact was, that we were surrounded by none of the dangers I apprehended. I conceive this new government to be one of those dangers: it has produced those horrors which distress many of our best citizens. We are come hither to preserve the poor commonwealth of Virginia, if it can be possibly done: something must be done to preserve your liberty and mine. The Confederation, this same despised government, merits, in my opinion, the highest encomium: it carried us through a long and dangerous war; it rendered us victorious in that bloody conflict with a powerful nation; it has secured us a territory greater than any European monarch possesses: and shall a government which has been thus strong and vigorous, be accused of imbecility, and abandoned for want of energy? Consider what you are about to do before you part with the government. Take longer time in reckoning things; revolutions like this have happened in almost every country in Europe; similar examples are to be found in ancient Greece and ancient Rome — instances of the people losing their liberty by their own carelessness and the ambition of a few. We are cautioned by the honorable gentleman, who presides, against faction and turbulence. I acknowledge that licentiousness is dangerous, and that it ought to be provided against: I acknowledge, also, the new form of government may effectually prevent it: yet there is another thing it will as effectually do — it will oppress and ruin the people.

      This new plan will bring us an acquisition of strength — an army, and the militia of the states. This is an idea extremely ridiculous: gentlemen cannot be earnest. This acquisition will trample on our fallen liberty. Let my beloved Americans guard against that fatal lethargy that has pervaded the universe. Have we the means of resisting disciplined armies, when our only defence, the militia, is put into the hands of Congress?

       My great objection to this government is, that it does not leave us the means of defending our rights, or of waging war against tyrants.  I address my most fervent prayer to prevent our adopting a system destructive to liberty.”

He feared the spirit of the American Revolution, and all that our founders hoped to accomplish by its independence from Britain, would be extinguished by accepting it.  He urged that provisions be added to protect the fundamental rights of freemen, such as the right of habeas corpus and a trial by jury, and the sovereign rights of the States.  In fact, he even urged that Virginia join with other states and form a separate nation should further restraints not be given in the Constitution. Henry’s hostility to the Constitution served a beneficial purpose. It was necessary to put the new instrument through fire in order to test it and eventually to define it. Henry certainly put it through fire. Not only that, but he was one of our leading Founders who forced the adoption of the first ten amendments.  In effect, he should be included as one of the great makers of the Constitution.

North Carolina also had reservations about the Constitution as originally drafted.  The first NC Convention was held in July 1788 in Hillsborough and the delegates declined to adopt the Constitution unless a Bill of Rights was added to further limit the reach of government.  William Lenoir refused to support is adoption because he felt that the Constitution needed to be amended to specifically protect the sovereign rights of the States from any attempt by the government to overstep constitutional bounds and enlarge its powers. After assurances were given that a Bill of Rights would be added, NC finally ratified in December of that year.

Obviously, the size and scope of the federal government was foremost on their minds. The States weren’t ready to sacrifice their powers or the liberty of its people. It is therefore important to realize the mindset of the States, the questions and concerns that entered their state debates, their reservations in roundly approving the Constitution, and the limitations applied as a function of their clarifying statements in the Conventions. These are much more pertinent to the interpretation of federal powers than any Supreme Court decision.  After all, the Court itself is a branch of the government, created under the Constitution and empowered under its own judicial decisions rather than by the Constitution or constrained by the explanations given in the Federalist Papers.

The question is “What can be done when the federal government oversteps its constitutional bounds?” In the past, the Supreme Court has responded by enlarging government powers. They’ve done this by applying a liberal or progressive reading to the Constitution that by all accounts was intended to be interpreted strictly. Thomas Jefferson said: ” “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.” Madison and others have given similar warnings.

But Thomas Jefferson never trusted the federal judiciary. In fact, he 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 reason for his distrust, he pointed to several early Supreme Court cases, one in particular being McCulloch v. Maryland (1819).  In that case, the Court took an expansive reading of the “Necessary and Proper” clause. Congress established a national bank and the state of Maryland challenged it as an unconstitutional exercise of power.  Maryland argued that there was no power under Article I, Section 8 for Congress to establish a national bank. The government countered by asserting that it was within its taxing powers.  The Supreme Court then had to interpret the breadth of the “Necessary and Proper” clause and the case pit Jefferson’s (and Madison’s) version of the Constitution against Hamilton’s version of the Constitution.  Constitution did not

According to Jefferson (who sided with Maryland) the establishment of a national bank was illegal under the Constitution.  His argument before Congress was this: “The second general phrase is, ‘to make all laws necessary and proper for carrying into execution the enumerated powers.’ But they can all be carried into execution without a bank. A bank therefore is not necessary, and consequently not authorized by this phrase. It has been urged that a bank will give great facility or convenience in the collection of taxes.  This might be true.  Yet the Constitution allows only the means which are ‘necessary,’ not those which are merely ‘convenient’ for effecting the enumerated powers.”  Jefferson further explained that the power to establish a national bank was addressed by the states in their ratification conventions and specifically rejected.  According to the states, if the Constitution had indeed granted such a power, that would be cause enough to reject the document.

Alexander Hamilton’s response to Jefferson’s interpretation went something like this: “Well that depends on what the meaning of ‘necessary’ is.” [Remember when Bill Clinton pulled that stunt].  Using tortured logic, Hamilton explained that “necessary” often means no more than “incidental, useful, or conductive to.”  He argued that the government had implied powers, such as the power to establish a national bank.

And so, establishing an early precedent for a disgraceful track record, the Supreme Court rejected the logic of Jefferson and the intent of the States in ratifying the Constitution and interpreted “necessary” to be “convenient.”  Convenient for who?  The federal government, of course.

As Jefferson 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.  We 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.”  In a letter he wrote in 1821, he wrote: “The great object of my fear is the Federal Judiciary.  That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”

With respect to the critical division of power between the States and the government, one can easily see how “fair” the high court has been to the States and how vigorous it has been in respecting the powers that belong to them.  In modern times, the Supreme Court has declared a federal law unconstitutional for violating the Tenth Amendment on only 3-4 occasions.  At least that’s all I can recall at the moment.  In 1992, there was New York v. US, where the Court overturned a federal law that forced states to dispose of radioactive waste as it directed.  In 1997, there was Printz v. US, where the Courtoverturned parts of the Brady Handgun Violence Prevention Act.  And this year, with the healthcare decision, the Court announced that the Medicaid expansion provision amounted to federal coercion of the States.

The proper and constitutional remedies available to the States and to the People when the government oversteps its constitutional authority are judicial review, nullification (and interposition, a related remedy), and secession.  Judicial review is untrustworthy and has been explained above.  Secession is extreme, but a proper remedy, as provided in the Declaration of Independence (itself a secessionist document) and not addressed at all in the Constitution (nor it should be, for it is an inherent right of the people – the right of self-determination with respect to their form of government).  Thomas Jefferson wrote a series of resolutions in 1798 (which Kentucky adopted as the Kentucky Resolutions of 1798) to declare that the Alien & Sedition Acts passed by Congress were unconstitutional, as violating the First Amendment’s guarantee of free speech or having no constitutional authority to pass the legislation. In those resolutions, Jefferson articulated the States’ remedy of Nullification, which he called “the Rightful Remedy.”

Nullification is premised on the legal, government, and constitutional principle that any law passed without a proper grant of authority is null and void, and unenforceable.  Nullification is the inherent right and duty of every State to declare when the federal government (their creation) has exceeded the bounds of authority delegated to it under the Constitution and then to refuse to allow that law to be enforced within its borders.

The states have the power under the compact nature of the Constitution’s ratification. The States, as signing parties to the Constitution, are the proper parties to determine the extent of the powers delegated to the federal government and to decide when abuses have been committed.  In ratifying the Constitution thru state ratifying conventions (to be distinct from state legislatures; ratifying conventions are more representative of the people), the States were agreeing to be bound to the conditions and obligations imposed by the document for the purpose of uniting together for common purposes and goals.  It is just like the example I gave earlier of the Buyer and Seller who enter into a contract for a home. It is only the Buyer and Seller who have the clearest understanding of the meaning of that contract.  If the Buyer agreed to pay $450,000.00 for the home and the Seller agreed to sell it for that price, then no party can later claim that the purchase/sale price was anything other than $450,000.

The federal government, a creation of the Constitution, was established as an “agent” or “servant” of the States, and therefore not a party to the compact. The government has no legal position to define its own powers.  Today, we assume the Supreme Court is the ultimate tribunal with respect to the meaning and interpretation of the Constitution.  But let’s never forget that under the Federalist Papers, the Supreme Court was only supposed to offer an “opinion.”  See Federalist No. 78, in which Alexander Hamilton wrote:  “The judiciary is beyond comparison the weakest of the three departments of power. It can never attack with success either of the other two branches. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Nullification has a constitutional basis under the Supremacy Clause (Article VI) and the Tenth Amendment.  The Supremacy Clause states This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”  In other words, not every law that the government imposes is to be considered supreme law; only those passed pursuant to an express grant of authority are supreme. The states are free to legislate in all other areas.  The Tenth Amendment states that “the powers not delegated to the federal government (see Article I, Section 8) nor prohibited to the States (Article I, Section 10) are reserved to the States.”  Therefore, the States are supposed to be jealous guardians of their domain of power under the carefully-defined division of power under our federalist system, memorialized in the Tenth Amendment.  The proper balance of power is the ultimate protector of our “God-given rights.”

Alexander Hamilton wrote this in Federalist No. 26“….The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”

In conclusion, I am compelled to expound on the position that the federal government has implied powers.  When the government takes that position, it is dangerous and leads, almost without exception, to an insidious enlargement of government powers.  And that’s why I wanted to clarify that the government itself should never be the allowed to have sole power to interpret the extent of its powers.  It is the responsibility of the States (thru elections and nullification) to stand guard and remind the government, from time to time, that its powers are limited under the Constitution.

People who are willing to sacrifice their liberty by succumbing to the mindset that government is free to unilaterally enlarge its powers and that the Supreme Court should be the final tribunal as to the meaning and intent of the Constitution are ready for a master and deserve one. Shame on professors and constitutional groups who espouse this vision of our nation’s government system.  They’ve betrayed the ideals of our American Revolution and are willing to substitute one tyrant for another.  Our government is quickly becoming our master and we have become its legislatively-controlled slaves.

By the way,  I encourage everyone to read:  Professor M. Stanton Evan’s article –  ”The States and The Constitution” of July 7, 2010, in First Principles.

References: Professor M. Stanton Evan, “The States and The Constitution,” First Principles, July 7, 2010.  Referenced at:  http://www.firstprinciplesjournal.com/articles.aspx?article=448

Delma Blinson, “What Needs to be Done About Abuse of Power by the Federal Government?” Beaufort Observer, September 23, 2012.  Referenced at:  http://www.beaufortobserver.net/1editorialbody.lasso?-token.folder=comm/2012/09/22&-token.story=262792.112112&-token.mgmtpreview=y

Calvin H. Johnson, “The Constitution or Liberty, The Freemen, September 21, 2012.  Referenced at:  http:// http://www.thefreemanonline.org/columns/tgif/the-constitution-or-liberty/

The Anti-Federalist Papers –  http://www.utulsa.edu/law/classes/rice/constitutional/antifederalist/antifed.htm

The Federalist Papers –  http://thomas.loc.gov/home/histdox/fedpapers.html

McCulloch v. Maryland, 17 U.S. 316 (1819).   Referenced at:  http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html

The First North Carolina Ratifying Convention, July 1788 –  http://www.constitution.org/rc/rat_nc.htm

Patrick Henry, speech at the Virginia Ratifying Convention, June 1788 – http://www.unc.edu/~gvanberg/Courses/Henry%20June%205.htm

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Nullification: Jefferson and Madison vs. a “Staff” Writer

    by Michael Maharrey, Tenth Amendment Center

This is a response to the article published by the NC Institute for Constitutional Studies – “Nullification: An Unconstitutional Remedy.”  [August 23, 2012.  Referenced at:  http://ncicl.org/article/776%5D

Also reference Diane Rufino’s previous article “Nullification and the Myths.”

Interestingly, opponents of nullification rarely, if ever, challenge James Madison and Thomas Jefferson’s reasoning head on.

Those who manage to get past the straw-man arguments centering around racism and the Civil War generally go straight to constitutional jurisprudence and Supreme Court rulings to make their case. But the principles of nullification articulated by Madison and Jefferson reject the authority of the Supreme Court as the final arbiter, based on the fundamental nature of delegated powers, and opponents never directly challenge their reasoning. Anti-nullifiers simply march right along declaring doctrine fatally flawed with statements like this one by the author of an article published by the North Carolina Institute for Constitutional Law.

“It has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958).”

The North Carolina Institute for Constitutional Law follows the lead of the SCOTUS and flatly rejects nullification as well, based primarily on the “supremacy” of the Supremes and a laundry list of other nullification opponents. He couldn’t make his utter disdain for the doctrine any clearer.

“Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court.  Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.”

The staffer deserves some credit. He does a fair job of presenting the history of nullification, even including the fact that northern states relied on the principles to battle the draconian fugitive slave laws in the 1850s. And for the most part, he resists the temptation to categorically paint nullification with the racist brush, taking a milder approach, asserting the principles have “a checkered past.”

But despite his reasoned approach and utilization of numerous academic references, the staffer falls into the same shallow arguments as his less sophisticated counterparts.

In general, the writer relies on a subtle method to make nullification seem unreasonable. In the introduction, he asserts “nullification has never been widely accepted as a solution to alleged unconstitutional federal actions” and builds on that premise throughout the article, creating the impression that no thinking person could possibly embrace the doctrine. For instance, he points out that 10 northern states flatly rejected the Kentucky and Virginia resolutions. But he leaves out important political context and never mentions that those same states embraced nullification just a decade later when politically expedient. Those northern states that vehemently opposed nullification when it applied to the Alien and Sedition acts embraced the principles to resist Jefferson’s embargo, and later, military conscription during the War of 1812.

The illegitimacy of the staffer’s subtle reasoning becomes apparent when pulled out into the open. He tries to prove nullification flawed by arguing that “most people reject it,” as if most people denying a fact makes it untrue. Most people rejected the notion that the earth revolved around the sun for hundreds of years. Their doubts clearly didn’t alter the course of the planets.

The staff writer does attempt to make a “constitutional” argument against nullification, first asserting that the Supremacy Clause forbids state action against any federal act.

“The Supremacy Clause declares that federal laws are ‘the supreme Law of the Land…any Thing (sic) in the Constitution or Laws or any State to the Contrary notwithstanding.’ U.S. Const. art. VI, cl. 2”

Like almost every proponent of centralized power, the writer completely ignores a key phrase in the Supremacy Clause.

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land. (Emphasis added)

Any federal act not “made in pursuance of the Constitution” does not stand as the supreme law of the land. It is, in fact, an illegal usurpation of power. The Supremacy clause does not bind state governments or the people to follow unconstitutional acts.

That leads to an important question: who decides constitutionality?

The North Carolina Institute for Constitutional Law staff writer insists the Supreme Court does. In fact, this stands as the cornerstone of his argument against nullification, as we’ve already seen.

The writer asserts that nullification lacks legitimacy because the Supreme Court says so, but the principles of nullification rest on the premise that the states, not the Supreme Court, make the final determination as to the constitutionality of an act. Jefferson spells this out in the Kentucky Resolutions of 1798.

That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…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.

The staff writer’s position makes the created lord over the creator, insisting that the federal government gets to decide the extent of its own power. This makes as much sense as allowing a Cowboys player to serve as a referee in a football game between the Dallas and the New York Giants.

St. George Tucker wrote the first systematic commentary on the U.S. Constitution in 1803. It served as an important handbook for American law students, lawyers and judges in the first half of the nineteenth century. He grasped the absurdity of elevating the SCOTUS to the role of sole and final arbiter of the Constitution.

“The Federal Government is the creature of the States. It is not a party to the Constitution, but the result of it – the creation of that agreement which was made by the States as parties. It is a mere agent, entrusted with limited powers for certain objects; which powers and objects are enumerated in the Constitution. Shall the agent be permitted to judge of the extent of his own powers, without reference to his constituent?”

James Madison expounded on this idea in the Report of 1800.

“The (Virginia) resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

“However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

Madison, Jefferson and Tucker grasp a simple but profoundly important concept: if the federal government gets to define the extent of its own authority, the federal government possesses unlimited power, leaving the people defenseless and without remedy when that government exercises powers it was never meant to have. Surely, that was not the intention of the ratifiers, who clearly stated that they understood the Constitution limited the new government to carefully prescribed roles.

Of course, our writer will quickly assert that Madison renounced the principles of nullification in the 1830s, pointing out that he vigorously objected to John Calhoun’s interpretation of the doctrine to nullify the “Tariff of Abominations.” But the staffer apparently never looked deeply into Madison’s later arguments against nullification. In fact, he addressed as specific scheme concocted by South Carolina asserting state nullification bound other states.

In his 1835 Notes on Nullification, Madison wrote:

That the doctrine of nullification may be clearly understood it must be taken as laid down in the Report of a special committee of the House of Representatives of S. C. in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the U. S. within its limits; that the arrest is to be presumed right and valid, and is to remain in force unless ¾ of the States, in a Convention, shall otherwise decide. 

In other words, Madison was not objecting to the principles of nullification in general, but the specific application created by South Carolina. Did Madison reject nullification outright? No. He did agree with our writer that it was outside of the constitutional structure itself. But he continued to hold that it was a legitimate act when all remedies prescribed by the Constitution fail to restrain usurped power i.e. through the courts, legislative remedies or at the ballot box. He went on to write:

She (Virginia) asserted moreover & offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the govt of the U. S. was responsible, and otherwise as specially provided by the Constitution; and further, that the States, in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which, however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and, as such, possessed an authority paramount to it.

In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.

So you see; Madison never actually turned his back on the fundamental principle of nullification – resistance.  In fact, he even outlined the process.

The plain answer is, that the remedy is the same under the government of the United States as under all other Govts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.

The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place. Nullification simply asserts that power ultimately remains with the people of the several states, and that they have a right to take action when the general government they created acts outside of its delegated powers. Nullification does not stand outside of the constitutional system; it is fundamental to it. To deny nullification is to deny the sovereignty of the people of the states, which is to deny the very foundation of the American system. If one accepts the construct of the Union as Madison, Jefferson and most importantly the ratifying conventions understood it, nullification logically follows.

When the federal government takes on power it was never given, the people and the states must possess a remedy in the last resort. Nullification morally, philosophically and constitutionally stands as the rightful remedy.

That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several states, or to their respective state governments, to whom they may have granted the same.

The principles of nullification logically flow out of the delegation of powers that created the federal government in the first place. Nullification simply asserts that power ultimately remains with the people of the several states, and that they have a right to take action when the general government they created acts outside of its delegated powers. Nullification does not stand outside of the constitutional system; it is fundamental to it. To deny nullification is to deny the sovereignty of the people of the states, which is to deny the very foundation of the American system. When the federal government takes on power it was never given, the people and the states must possess a remedy in the last resort. Nullification morally, philosophically and constitutionally stands as the rightful remedy.

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

Reference: Nullification: An Unconstitutional Remedy,” NC Institute for Constitutional Law, August 23, 2012.  Referenced at:  http://ncicl.org/article/776

 

BENGHAZI: Obama Apologizes; Romney Criticizes

         by Diane Rufino

On Tuesday, September 11 (the 11th anniversary of the barbaric attacks on the US), tensions grew in Cairo, Egypt, apparently over a short provocative anti-Islamic video portraying the prophet Mohammed in a negative light (accusing him of being a womanizer, pedophile, and a fraud).  At 6:30am EST, the US embassy there released a statement:  “The Embassy of the United States in Cairo condemns the continuing efforts by misguided individuals to hurt the religious feelings of Muslims – as we condemn efforts to offend believers of all religions. Today, the 11th anniversary of the September 11, 2001, terrorist attacks on the United States, Americans are honoring our patriots and those who serve our nation as the fitting response to the enemies of democracy. Respect for religious beliefs is a cornerstone of American democracy. We firmly reject the actions by those who abuse the universal right of free speech to hurt the religious beliefs of others.”   This statement was released before protesters stormed the embassy there and before the attack on the diplomatic team in Benghazi. A statement by a US embassy reflects the official policy of the US State Department.

About four hours later, crowds began to form in Cairo. They shouted “We are all Osama bin Laden!” and “Obama, we are here to sacrifice for Osama!”   Over the next several hours, the protesters, becoming a mob, stormed the embassy compound.  They made their way into the courtyard of the embassy, tore down the American flag, ripped it up and burned it. They then raised their own flag, a black Islamic flag with the words of the shahada, which is the Islamic creed which reads “There is no god but Allah, and Mohammed is his messenger.”  In fact, black Islamic flags were flying everywhere.

There was a reason the protesters used black flags. The black flag was the personal flag of Muhammad. Known as Al Uqab or the Eagle, this large black banner was said to be made from the headscarf of his wife, Aisha. Although he had a smaller white flag, commonly known as the Young Eagle, the black flag was the one used most frequently throughout his life and his conquests. This flag flew during the conquest of Mecca and continued to be a powerful symbol of Islam during the rule of the Abbasid Caliphate following Muhammad’s death. The black flag is an integral part of Islamic symbolism and remains one of the only permissible symbols evoking the Prophet Muhammad and the early days of Islam.  And so, while the protesters gathered to show outrage over the independent film and its accusations against Mohammed, the black flag was significant.

About 3:30pm EST, according to the Washington Examiner, the US Embassy in Cairo tweeted, “This morning’s condemnation still stands, as does our condemnation of unjustified breach of the Embassy.”   Apparently, even up until 6:30pm, twelve hours after the original statement, the Embassy was still tweeting and standing by its official position.

That night in Libya, militants attacked the US embassy in Benghazi, destroying the compound with hand grenades, rocket-propelled grenades, and automatic weapons. They would eventually kill our ambassador to Libya, Chris Stevens, computer expert Chris Smith, and two ex-Navy Seals who provided security – Glen Doherty and Tyrone Woods.  Stevens was separated from his security detail by thick smoke and US officials were unable to account for his whereabouts until his body was identified.  The first of our men to be found dead was Sean Smith when US security forces went thru the demolished and burnt embassy compound building. He died of smoke asphyxiation. Secretary of State Hilary Clinton would confirm his death at 10:08pm. The news of the death of Stevens and the two others was not announced by the U.S. government until after 7:00am on Wednesday, September 12, after his body was recovered and delivered to a nearby hospital. It was reported that Stevens likely died of asphyxiation and that Doherty and Woods were killed by militant gunfire.

   Glen Doherty, Tyrone Woods, Sean Smith

Sometime before the deadly attack in Benghazi, the tweets from the US Embassy were deleted from the twitter thread.  Moments after Clinton confirmed the sad news about Sean Smith on Tuesday night, the White House issued a statement disavowing the apology by the US Embassy:  ”The statement by Embassy Cairo was not cleared by Washington and does not reflect the views of the United States government.”

At 10:24pm on Tuesday night, Mitt Romney took an opportunity to issue this statement: “I’m outraged by the attacks on American diplomatic missions in Libya and Egypt and by the death of an American consulate worker in Benghazi. It’s disgraceful that the Obama administration’s first response was not to condemn attacks on our diplomatic missions, but to sympathize with those who waged the attacks.

Of course, Romney was attacked and criticized for what he said but Obama, who never condemned the actions of the terrorists, was coddled by the press.  In fact, members in the liberal press conspired to attack Romney on his position and to try to corner him into making a statement that might hurt his credibility.  Ah, how the left conspires…

The following day, Wednesday, Obama chose to miss a briefing by the Defense Department regarding the ongoing drama in Benghazi and the attacks on other American embassies in order to attend a campaign event in Las Vegas.

Obama’s pitch for re-election went on as scheduled, even though tensions were continuing to grow in the Middle East and government officials were trying to find out who or which groups were responsible for the deaths of the 4 American diplomats and servicemen.  He told the crow: “We’ve had a tough day today.  We lost four Americans last night, who were killed when they were attacked at a diplomatic post in Libya.  And they were serving overseas on our behalf, despite the dangers, despite the risks, to help one of the world’s youngest democracies get on its feet.  They were working to advance the interests and the values that we hold dear as Americans.  And as Americans, we stand united -– all of us -– in gratitude for their service, and we are mindful of their sacrifice, and we want to send out heartfelt prayers to their loved ones who grieve today… So tonight, let’s think of them and thank them. I want to assure you, we will bring their killers to justice.”

Not once did he condemn the attacks. Not once did he criticize radical Islam.  But immediately after his short statement about the attack in Benghazi, he reminded his Nevada audience that they are a swing state, made a joke, and then asked for their votes.  He never missed a cue.  And didn’t bat an eye (or hold back a tear).

“What happens in Benghazi stays in Vegas,” as one blogger commented.

As we can be fairly sure, at the time the events were unfolding in Benghazi and in Cairo, Secretary Clinton knew full well that the independent film about Mohammed has even less to do with the protests, the attacks, and the savage killings than did the Danish cartoons or the schoolteacher’s teddy bear or any of the other insults of Islam. The 400-strong assault force in Benghazi showed up with RPGs and mortars. That’s not a spontaneous movie protest; that’s an act of war.  And it was better planned and executed than the dying superpower’s response to it. Secretary Clinton and President Obama are misleading the American people when they suggest otherwise. We are in a war against Islam.  Maybe not against those who want to live in peace, but certainly the militant, fanatical faction.

On Wednesday morning, as Obama was getting ready for a day of campaigning, doing a spot on David Letterman, and making an appearance on a hip-hop radio show hosted by “The Pimp with a Limp,” Mitt Romney went on TV to say a few remarks:

        “It is with tragic news and heavy hearts that we consider that individuals who have served in our diplomatic corps were brutally murdered across the world.

       This attack on American individuals and embassies is outrageous. It’s disgusting. It breaks the hearts of all of us who think of these people who have served during their lives the cause of freedom and justice and honor. We mourn their loss and join together in prayer that the spirit of the Almighty might comfort the families of those who have been so brutally slain.

        Four diplomats lost their life, including the U.S. ambassador, J. Christopher Stevens, in the attack on our embassy at Benghazi, Libya. And of course, with these words, I extend my condolences to the grieving loved ones who have left behind as a result of these who have lost their lives in the service of our nation. And I know that the people across America are grateful for their service, and we mourn their sacrifice.

       America will not tolerate attacks against our citizens and against our embassies. We’ll defend, also, our constitutional rights of speech and assembly and religion. We have confidence in our cause in America. We respect our Constitution. We stand for the principles our Constitution protects. We encourage other nations to understand and respect the principles of our Constitution, because we recognize that these principles are the ultimate source of freedom for individuals around the world.

       I also believe the administration was wrong to stand by a statement sympathizing with those who had breached our embassy in Egypt instead of condemning their actions. It’s never too early for the United States government to condemn attacks on Americans and to defend our values. The White House distanced itself last night from the statement, saying it wasn’t cleared by Washington, and that reflects the mixed signals they’re sending to the world.

      The attacks in Libya and Egypt underscore that the world remains a dangerous place and that American leadership is still sorely needed. In the face of this violence, America cannot shrink from the responsibility to lead. American leadership is necessary to ensure that events in the region don’t spin out of control. We cannot hesitate to use our influence in the region to support those who share our values and our interests.

      Over the last several years we stood witness to an Arab Spring that presents an opportunity for a more peaceful and prosperous region but also poses the potential for peril if the voices — forces of extremism and violence are allowed to control the course of events. We must strive to ensure that the Arab Spring does not become an Arab winter.”

Mitt Romney is right.  We respect our Constitution. We stand for the principles our Constitution protects. We can’t apologize for the freedom we allow. The independent, provocative film released on YouTube that is critical of Islam’s prophet Mohammed is protected under the First Amendment of our Constitution.  As vile as that film may be, it is protected speech.  As offensive and insulting as the film depicting Jesus Christ as a homosexual (Corpus Christi) is, it is also protected speech.  When Keith Olbermann told President George Bush, the leader of the free world, to “shut the hell up,” he was protected under the Constitution.

While we would hope that those who put out something for public consumption would use common sense, a degree of sensitivity, and a sense of decency, none of those are required as conditions for the exercise of our First Amendment liberties.

The bottom line is that we cannot allow acts of terror, based on the very intolerance that they accuse us of, to act as a veto on the exercise of our constitutional liberties.

***  I offer my deepest condolences to the families of Chris Stevens, Glen Doherty, Tyrone Woods and Sean Smith.  I am saddened that they had to die because of the reckless act of an amateur filmmaker and the soft policies of a government that thinks appeasement is a proper response to terrorism.  Their smiling faces will remind me of the happiness they enjoyed as Americans and the pride they felt in serving a country they loved and believed in. My daily prayer will continue to be that fellow Americans will be safe in the violent nations of the Middle East and no other mother’s heart will ache because of a life tragically cut short on account of hatred and intolerance.

The Film “Monumental” Reminds Us of Our Christian Heritage

            by Diane Rufino

We often hear people talk about America’s Christian heritage.  Usually it is in the context of some government action or judicial decision which denies this heritage.  There is no denying that our government and other forces are operating in warp speed to remove all vestiges of our Christian roots, while at the same time attempting to reclassify our Founders as other than Christians and attempting to define and rewrite our very history.

And they are making tremendous headway.  We saw the extent of the hostility towards our religious heritage when the delegates to Democratic Convention voted to remove the word “God” from its platform.  The convention chairman, Antonio Villaraigosa, declared that the votes were sufficient to keep “God” in the platform but anyone who watched the vote knew the opponents really won the day.

But those who understand the significance of our Christian heritage are fighting to keep that heritage alive.

Kirk Cameron, the adorable teen actor from the (1985-1992) sitcom Growing Pains, is one who understands the significance.  Furthermore, he understands that America needs a re-commitment to the values our founding Christians brought with them in the 17th century to colonies like Plymouth and Massachusetts Bay to salvage our “rotting soul.”  Cameron says that when he looks around, he notices that the fruit on the tree of American liberty is rotten and the roots are poisoned.  “As I look around I get this sinking feeling that we’re off track, that there’s something sick in the soul of our country.  When I examine the fruit that’s hanging on the tree of America, I can see that it’s rotting. And that concerns me deeply.”  His observations led him on a journey to find out the secret formula that made America great.  He set out to find our “national treasure.”

I’m retracing the footsteps of our Founders from England to America in the hope of discovering our true “national treasure.” I want to listen to them, to learn from them. Because I suspect Forefathers knew we were a forgetful people, that someday we would lose our way as a nation. So they left us a map that would guide us back to the source of America’s success.

      What I’ve discovered is amazing! The key to transforming our nation and securing our children’s future is not complicated. Best of all, it’s not hidden away like something out of the Da Vinci Code. It’s been right in front of us all along, and I can’t wait to show it to you in this film.”

What he found was a simple truth.  Our Pilgrim and Puritan forefathers carried the secret to successful self-government with them across the Atlantic.  Their greatest contribution was the notion that only a religious and moral people could be trusted to govern themselves successfully. Only a religious and moral people could be trusted with liberty. Cameron documented his journey in a movie called Monumental: In Search of America’s National Treasure.

What do we mean by “Our Christian Heritage”?

We certainly don’t refer to it as a way to suggest that Christianity be the official religion of the United States.  We have the First Amendment to protect us from the establishment of any one religion, so that our religious conscience is free from the coercion or criticism of other religions (or non-religion) and no one is forced to support an offensive religion with their tax dollars.

Our Christian heritage finds its roots in the very foundation of our government.  Its principles and values affect many aspects of our lives, none more profoundly than the very form of government that we enjoy and benefit from.  The concept of the sovereign person, being “created in God’s image,” the inherent dignity of every human being, tolerance towards others, charity, service, equality before the law, and personal responsibility all come from the Christian message. Every person, old or young, strong or weak is equal before the Lord.

Religion plants the seeds of morality and ethics. It promotes strong families, which are the bedrock of a healthy, ordered, productive society.  It gives the representative a servant’s heart.  It sets guidelines for conduct that benefit society as a whole.  It structures government that is closest to the individual, where it can be most responsive.  It establishes notions of fairness and equity.  It establishes proper priorities for a strong community. When we speak today of the Christian heritage, we speak of institutions (mostly government) that come from the Hebrews and values that we owe to the Judeo-Christian culture. The basis of our law comes from Natural Law and from God’s Law.

And as Kirk Cameron emphasizes in his movie Monumental, America was founded by settlers – Pilgrims and Puritans – who wanted to establish a new land where they could live the teachings of the gospel.

But this is only the surface. Everywhere Christianity has been able to penetrate culture and society, it has been successful. It has been so successful that others, such as atheists and extremists, have flocked to Christian empires to enjoy its freedom and prosperity. The humanization that derives from Christianity has touched the heart of civilization and civilization will never be the same again.

The gospel was introduced to America with the Pilgrims and the Puritans, and the timing of their voyages to America was significant. It coincided with two major events: First the Bible was translated from Latin into English in the late 16th century and then in 1610, the work went to press, becoming available in print the following year.  It became known as “The King James Bible” in honor of England’s king at the time. Monumental begins with Kirk Cameron’s research into the Pilgrims and their famous voyage to the New World on the Mayflower.  He traces their steps, from point to point, as they escaped from England to start a new colony, Plymouth Colony, in an unknown and uncharted new land.  The story is told by Cameron, in the form of a narration and in dialogue with experts, as he goes from point to point along the Pilgrim’s escape route from England.

We learn how the Pilgrims were part of the Puritan movement (a separatist movement, from the Church of England).  We learn how they became spiritually aware when the printed English Bible became available. They could read the gospel of Jesus Christ firsthand and not have to wait to hear scripture read in the Church, headed by the King of England. This relatively small band of men, women, and children had a strong desire to serve God as they saw fit, free from the Church of England and the religious policies of the King.  Being identified as “separatists” or “purists” made them potential traitors to the Crown and made them outcasts.  In order to exercise religious freedom, they would have to leave England, settle in Holland (perhaps one of the only places they could be free from persecution) for 11 years, and eventually make their way back to England to commission a ship to take them to the New World.  Monumental chronicles their trials and tribulations. We learn how God protected them and how their faith helped them endure each of the many setbacks that threatened to derail their mission. We learn that the Pilgrims and members of the crew signed a compact, the Mayflower Compact, in 1620 before departing the ship to express their desire to be rid of British law and to establish a form of self-government based on just and equal laws and for the advancement of the Christian faith.  In the New World, government would be established to serve their interests and they would be masters of their government, unlike in England, where the government was the master of the people who exist to serve the interests of government.

By the time the film moves on to Plymouth, Cameron has already shown the Pilgrims to be far more courageous and principled that the stoic, starched creatures in black and white clothes with buckled black shoes that we learned about in elementary school. They were devout, hard-working, family-loving, persevering people who were committed to establishing a successful colony based on self-government and religious freedom.

One of the most striking parts of the movie was when Cameron visited a monument that I had never heard of –  “The National Monument to the Forefathers in Plymouth, MA” (also referred to as “The Pilgrim’s Monument”).  In the film, the monument is referred to as the “Matrix of Liberty.”  The “Matrix of Liberty” is an enormous granite monument devoted to the principles that the Pilgrims embraced in Plymouth to order their society. The Pilgrims ordered their society on eternal truths, including faith, morality, justice, mercy, and education.  In fact, the monument is structured and built to show the interdependence of these truths. The center of the monument is a giant women holding a Bible and pointing to the Heavens.  She is Faith.  At each of the four corners of the base of the monument is a pillar, representing Morality, Law, Education, and Liberty.  The pillars have a certain order, starting with Morality and ending with Liberty.

The monument describes the ordered foundation of the Pilgrim society.  Here is how Cameron described Faith and the four pillars:

Faith –  She is pointing to God because her faith is in the God of the Bible and in Jesus Christ. She is holding the Geneva Bible which is open, indicating that she is actively reading it.  She has a star on her forehead to signify that she has wisdom, which comes from the Bible. She believes in Jesus Christ, who was sent to Earth to set man free.  The first pillar is faith.  Faith is necessary for all the other pillars.

Morality –  The statue is of a woman with no eyes, holding a Bible.  She has no eyes to signify that morality is an internal characteristic.  Morality means the “heart is right.”  To achieve morality, the heart must be transformed according to the word of God.

Law –  The statue is of a woman holding the scales of justice. There must be some degree of order in society and order is established by a set of laws.  Laws are based on God’s law.  They protect and promote goodness and punish and prevent evil. Hence, law must be morally just.  She is holding the scales of justice to indicate that the law applies equally to everyone.  Laws must be fair and equitable. Punishment, for example, must be in set in fair relation to the offense.  Finally, society should be merciful, just as God offers mercy and grace.

Education –  The statue is of a mother teaching her children. She is holding an open Bible and pointing to the Ten Commandments.  Parents should educate and train their children in morality and religion so that they will grow up to be responsible citizens, capable of maintaining a free and ordered society.

Liberty –  The statue is of a chiseled warrior, carrying a sword and draped in the skin of a lion. The lion’s head is draped over his shoulder.  He is called “Liberty Man.” The sword represents strength and the lion represents tyranny.  The man is strong because he has faith and is moral.  He has been educated and has defeated tyranny because his laws are strong and just.  If all the other pillars are promoted in society, its people can be trusted with their self-government and will be strong enough to pass on liberty to the next generation. In other words, Liberty Man is the result of obeying the “Matrix of Liberty.”

The so-called “Matrix of Liberty,” and the values and priorities it represents, is the real legacy of the Pilgrims. Not the black and white dress or suit with the shoes with the black buckle.  Not the hair up in a bun with a white kerchief or the turkey feast.  Yet no one celebrates this.  Public schools only teach about the successful harvest, and not the successful formula for religious liberty and other fundamental liberties.

The Pilgrims were British subjects looking for religious liberty, yet with the Mayflower Compact, they devised a special formula to protect all liberty. It is a magical recipe centered on the word of God and that provides a blueprint for the government of a free people and its protection. At the core of that recipe is the recognition that only a religious and moral people can be entrusted with the responsibility of securing so great a gift as Liberty.  This is America’s Christian heritage.  Our Christian heritage is the reason we have a government system centered around the individual, bound to protect his sovereign rights.  Our Christian heritage is inextricably connected to our founding principles. [Note that the word “principle” comes from a Latin root that means “first things.”]  Now that we know what this heritage is, we can see it clearly in our charter of freedom, the Declaration of Independence, and our very Constitution.

Did the “Matrix of Liberty” have any influence on our Founding Fathers?  The last leg of Kirk Cameron’s journey to find our “national treasure” took him to Aledo, Texas where he met with David Barton, founder of Wallbuilders. Barton has an extensive collection of original documents and books from the era of our Founding Fathers.  He was able to convince Cameron, using their writings and through the very fact that Congress published thousands of Bibles for public schools to use to instruct students, that indeed, the Pilgrim’s special formula had been embraced by the Founders when they crafted our government and secured our rights.

John Adams said: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”  In his farewell address (1796), George Washington spoke: “Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens. The mere politician, equally with the pious man, ought to respect and to cherish them.”  John Jay, author of five of the Federalist Papers and the first Chief Justice of the Supreme Court, said: “Providence has given to our people the choice of their rulers, and it is the duty and as well as the privilege and interest of our Christian nation to select and prefer Christians for their rulers.”

In the United States, we enjoy a representative government. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”  Abraham Lincoln reaffirmed that fact in the Gettysburg Address – “A nation by the people, of the people, for the people….”  The Constitution is a restraint on self-government. It forms the basis of our republic, which essentially means that we have a form of government defined by laws so that complete power is never in the hands of the majority (which can become a mob).  A republic respects the sovereignty of each individual, while in a democracy the majority exerts sovereign rights.  In a republic, the sovereignty of the people is exercised through representatives they choose, to whom those powers are specially delegated and limited by the Constitution. For example, the Bill of Rights guarantees that no matter what the will of the majority is, they can never deny fellow Americans certain fundamental rights.

Our elected government officials do not exercise force and power by divine right. The authority they possess for making laws that the average citizen is expected to obey comes ultimately from the Constitution.  Without explicit authorization, they have no power.  Of course it takes principled, ethical, moral, and educated individuals to give proper respect to his or her oath of office and serve the people within constitutional bounds.

Our Founding Fathers were keenly aware of the limits of human reason and of the temptations of political power.  History had taught them well. They drafted our Constitution with limiting language precisely because they knew that their successors would need constant reminders of the values that they believed were critical and of the foundational principles on which the government was built.

The preservation of liberty depends on two things:  a constitution that limits the amount of government in people’s lives and a citizenry that requires little government. We still have our Constitution to protect us from the reaches of government, although the government is slowly exceeding the power that was originally granted to it.  What we don’t have is a citizenry that is disciplined enough and moral enough to require as little government as possible. When laws are too numerous, they are just as dangerous to the exercise of liberty as having no law at all.

A just and enduring government depends equally on the integrity and faithful adherence to the Constitution and the morality of its people.

The full title of Kirk Cameron’s film is “Monumental: In Search of America’s National Treasure.”  So what is America’s “national treasure”?   It is its Christian heritage.  It is the lasting legacy of the Pilgrims in our founding documents and on our national fabric.

How does it all end?  We won’t know how our republic will end because that is ultimately up to the character and commitment of the American people. But the film Monumental ends with an optimistic message…..  for those who will heed it, that is. Cameron reminds us that we are in a constitutional crisis and according to many evangelicals and believers, we are on target to be destroyed in the end times because of the choices our nation has made.  But he is not ready to give up on the United States.  He tells us: “I still have children in this world. I want a bright future for them.”  The solution, he says, lies in the Pilgrim’s statue – the “Matrix of Liberty.”  The solution is a return to the values, principles, and priorities that defined the first American government established here in the New World.  Unfortunately, the statue is hidden away in a small remote park, tucked among residential developments in Plymouth, Massachusetts and not displayed proudly along with the rest of our history, where everyone can see it – in Washington DC.  We don’t advance our republic by ignoring our Christian heritage.  We save our republic by re-embracing it.

 

Nullification & the Myths

           by Diane Rufino

The NC Institute for Constitutional Law (NCICL) recently published an article about nullification, asserting that it not a legitimate constitutional remedy.  In a state where support is growing for nullification, it was quite disheartening to read the intellectually-deficient position the NCICL took on this basic constitutional remedy articulated by our greatest Founding Father, Thomas Jefferson.  In this paper, I will examine the arguments in that article and explain why, in fact, nullification is more legitimate than ever.

Before discussing nullification, let’s first get to know this great man, Thomas Jefferson, who contributed so much to our great American experiment.  He authored the Declaration of Independence, is the father of our religious liberty, and to a great extent, provided the blueprint for our Bill of Rights.  He gave us a unique system of government centered on the inalienable rights of the individual and not the divine right of kings.  The power of government would derive from the people, who were sovereign over their humanity.  As sovereigns, individuals would have the right to alter or abolish governments that were destructive of their rights. Never before had a nation placed such importance on the People, as individuals and not in the collective. In the early days of the republic, he fought for the strict interpretation of the Constitution against the Federalists (the party of Alexander Hamilton and his supporters) who sought to broaden the scope of Congress’ powers by claiming implied powers.  Jefferson is widely considered the most brilliant and well-read of our Founders.  And for all his contributions to the design of our government, we often say that it is based on Jeffersonian principles.

Jefferson emphasized the need for a republican form of government.  He believed it was the only form of government not at war with the fundamental rights of mankind.  He summed up the design of an effective, “safe” republican form of government this way: “The way to have good and safe government, is not to trust it all to one, but to divide it among the many, distributing to everyone exactly the function he is competent to.  Let the National Government be entrusted with the defense of the nation and its foreign and federal relations; the State governments with the civil rights, laws, police, and administration of what concerns the State generally; the counties with the local concerns of the counties, and each ward direct the interests within itself.  It is by dividing and subdividing these republics from the great national one down through all its subordinations, until it ends in the administration of every man’s farm by himself; by placing under everyone what his own eye may superintend, that all will be done for the best.”  (letter from Thomas Jefferson to Joseph C. Cabell, 1816).

Compare what Jefferson wrote in that letter to Joseph Cabell to the explanation James Madison provided in Federalist No 45 as to the federal nature of our government.

“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, and the internal order, improvement, and prosperity of the State.

The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”

In his description of a “good and safe government,” Jefferson seemed to affirm the brilliance of the federal system that our founders designed for us in 1787.

The task for our Founders in Philadelphia in 1787, of course, was to design an effective government to serve the interests of the several states and bind them in a Union based upon common goals yet honor the charter of freedom that Jefferson wrote to define the character of our nation.  Once the delegates decided on the nature of the government – a federal government of limited powers – the next step was to determine how to keep the government limited to its expressly-enumerated powers, and how to prevent it from encroaching on the rights of the States and the Individual.

The primary political philosopher of the Constitution, James Madison, brilliantly sought to address this problem by dispersing government power among many power centers.  He understood that the separation of powers was essential to prevent the consolidation of government and the formation of centralized, authoritarian tyranny to which all governments are prone. In those early days, the greatest concentration was in the state governments, themselves divided into separate branches.  At the federal level (or as Madison called it, the “general government”), power was divided into the House of Representatives, the Senate, and the president.  If any one of the power centers tried to invade the domain of the others or more dangerously, to expand its power outside the bounds of the Constitution, the other power centers, always mindful of the precarious balance, would be highly motivated to mobilize and thwart those ambitions.  With the inherent power drive of each center checked by the others, the citizens could maintain their own freedom from the travails of overweening government power. Yet another check the Founders gave us on government power was the Supreme Court, which was vested with the duty of interpreting the Constitution and laws and “rendering an opinion” as to the constitutionality of the laws or power grab from any of the other branches.  The power to actually strike down laws it deems unconstitutional was actually granted to the Supreme Court by itself in the early case of Marbury v. Madison (1803).

Our Founders spent considerable time and attention in preventing the government from concentrating, enlarging, and abusing its power. As Jeffrey Barrett in American Thinker wrote: “The Founders were insightful students of human nature and understood that the drive to amass ever greater power was as fundamental an appetite in many human beings as thirst, hunger, and sex drive.  This presented a problem for the Founders, who wanted to establish a society of ordered liberty, a society where the citizen enjoyed the maximum freedom from government interference consistent with a stable and orderly community.”

But power corrupts.  Jefferson warned that “human nature is the same on both sides of the Atlantic” and would eventually lead to the same result.  He had studied the failed regimes of history and was aware that in the history of government, all republics tended to decay into tyranny.  Rome, the most successful republic, was able to survive for almost 500 years, but the average lifespan of a republic was between 200-300 years.  Jefferson said: “Experience hath shown, that even under the best forms of government, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”

Tyranny is what happens when power is transferred from the people and concentrated in a central government. “What has destroyed liberty and the rights of man in every government which has ever existed under the sun?  The generalizing and concentrating all cares and powers into one body, no matter whether of the autocrats of Russia or France, or of the aristocrats of a Venetian Senate.”  (Jefferson)

If we’ve learned anything from the recent John Roberts/Supreme Court decision to uphold  Obamacare’s Individual Mandate as constitutional, it is that constitutionalists cannot rely on any branch of the federal government to curb the steady rise of federal government power that has taken place over the last hundred years.

Jefferson insisted that the Constitution must be strictly interpreted.  He wrote: “On every question of construction let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning can be squeezed out of the text or invented against it, conform to the probable one which was passed.”  His insistence on strict construction was based on two enduring concerns.  One was his commitment to individual liberty. He knew that “the natural progress of things is for liberty to yield and government to gain ground.”  His second broad concern was to restrain and limit government so that people might enjoy their rights. It was not safe, he thought, to confide too much power in government. “I am not a friend to a very energetic government. It is always oppressive. It places the governors indeed more at their ease, at the expense of the people.”

James Madison, considered the Father of the Constitution, agreed with a strict construction approach. His advice was this: “Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.”  Both Jefferson and Madison believed that strict limits on federal power were essential for liberty.

Nullification –

Nullification is an extension of Jeffersonian principles. It is a states‘ rights doctrine, coined and articulated by Thomas Jefferson in the Kentucky Resolves of 1798 and 1799.  Nullification provides that a state has the unquestionable right to judge when a federal law, or other federal action, has exceed constitutional bounds  and then refuse to enforce it.  Nullification is proper when an act of the federal government assumes power not delegated by the US Constitution.  Jefferson called nullification the “Rightful Remedy.”

The reason for nullification is to further the very goal that our Founders addressed in the design of government – to prevent liberty from yielding and government from gaining ground.  Nullification is necessary to maintain the precarious balance of sovereignty enshrined by our Constitution and also by the Ninth and Tenth Amendments.  It is necessary to prevent the government from the natural tendency to concentrate more power in itself.  Jefferson asked what the appropriate remedy would be when the government attempted to abuse its powers.  He recognized three options: judicial review, secession, and nullification.  The first, he felt, was untrustworthy and the second, he felt was too extreme.  Nullification was the sensible, constitutional, level-headed approach.  In the Kentucky Resolves of 1798, Jefferson wrote: “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.”  Nullification enables abuses of the Constitution to be nipped in the bud, thereby preventing any escalation of frustration which might lead to something extreme – such as secession.

“If every infraction of a compact of so many parties is to be resisted at once as a dissolution, none can ever be formed which would last one year. We must have patience…. and separate from our companions only when the sole alternatives left are the dissolution of our Union with them or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation. But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms; to protest against them as wrongs to which our present submission shall be considered, not as acknowledgments or precedents of right, but as a temporary yielding to the lesser evil, until their accumulation shall overweigh that of separation.”  (Letter from Thomas Jefferson to William Branch Giles, 1825)

Unfortunately, it wasn’t long after the US Constitution was ratified and the Union was formed that Congress began testing the limits of its power.  The first major constitutional question that came up concerned the creation of a (national) Bank of the United States.  Jefferson was Secretary of State at the time and President Washington asked for the opinions of his heads of departments. He wrote Washington that ours is a government of delegated powers. “The incorporation of a bank,” he said, “and the powers assumed by this bill, have not, in my opinion, been delegated to the United States by the Constitution.”  He went on to explain each of the enumerated powers, explained why the power to incorporate/charter a bank was not delegated, and finally recommend that the bill be vetoed.  Washington would eventually side with Hamilton.

In 1796, in response to the Quasi War with France, 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].   The Naturalization Act increased the residency requirement for American citizenship from five to fourteen years and the Alien Enemies Act authorized the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States,” in violation of due process.  The Sedition 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.”

Although there were no deportations under the Alien Act, many were convicted for violations of the Sedition Act.  Many honorable men were silenced, 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 Aliens & Sedition Acts 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” Clause, the “Necessary and Proper” Clause, and its war powers for justification to pass these pieces of legislation. The President at the time, John Adams, was a Federalist, and he believed the Constitution could be liberally-interpreted so as to permit these regulations. The Vice President, Thomas Jefferson, on the other hand, a Democrat-Republican, subscribed to a strict interpretation approach. It was his opinion that the Naturalization Act exercised a power nowhere found in the Constitution and the Sedition Act violated the protections of free speech in the First Amendment.  James Madison shared in his opinion.

Confronted with an obvious trend – the self-serving liberal interpretation of the Constitution and concentration of power in the federal government, despite the intentions to establish a government of limited powers – Thomas Jefferson took the opportunity presented by the Alien & Sedition Acts to articulate the rightful remedy to push back against such abuses of power. The series of resolutions that Jefferson wrote and shared with Virginia and Kentucky state representatives was adopted as the Kentucky Resolves of 1798.

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 that same year, after a series of conversations with Jefferson, James Madison wrote a similar resolution for the Virginia assembly. He took Jefferson’s remedy and added an affirmative duty on the part of the states to insert itself, or to interpose, between the federal government and the people (for whom the Constitution is to protect), when that government becomes abusive with its powers.  James Madison’s remedy is thus termed “Interposition.”  In the Virginia Resolves of 1798, he declared Virginia’s responsibility in response to the Alien & Sedition Acts of 1796:

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…..

In November 1799, the Kentucky legislature approved follow-up resolutions, 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.

The essential goal behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government were to be permitted the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. A constitution is, after all, only a piece of paper. It cannot enforce itself.  Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people. Recall how Congress worked with President Obama to push the healthcare reform bill, knowing full well it was an abuse of the Commerce Clause power.

[It should be noted that the Supreme Court continued unabated on its course to consolidate great power in the US Congress.  Even after Jefferson’s attempts to hold the Supreme Court to a strict construction of the Constitution, in 1819 in the landmark case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Court supported a liberal reading of one of its critical clauses. That case involved a Maryland law that taxed all banks in the state.  The government had chartered a National Bank, which had a branch in Baltimore.  Maryland taxed the Bank but the government refused to accept the tax, claiming it was exempt and that Maryland was interfering with the legitimate function of the government.  Maryland challenged the legitimacy of the Bank claiming that the government had no power to create one. Chief Justice John Marshall held that although none of the enumerated powers of Congress explicitly authorized the incorporation of the National Bank, the “Necessary and Proper” Clause should be read broadly enough to provide the basis for Congress’s action.  In that decision, the high Court ignored the meaning and intent of the “Necessary and Proper” Clause as explained by James Madison, the author and drafter of the Constitution and instead chose to accept the view of Alexander Hamilton, who exposed a very broad reading of the clause.  Hamilton, a monarchist, was roundly rejected in his political views at the Constitutional Convention because the prevailing view in fact was that of the Federalists who stood for limited powers].

So what did the NC Institute have to say about Nullification?

The NC Institute for Constitutional Law (NCICL) on Nullification –

The NCICL began its article with these words: “Recently, some groups have attempted to revive the doctrine of nullification, which holds that a state can invalidate what it believes are unconstitutional federal laws based on states’ rights under the Tenth Amendment to the U.S. Constitution.  Nullification is not a new idea, having come to life in the Kentucky and Virginia Resolutions of 1798 and again at various points in U.S. history. However, nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution.  [U.S. Constitution, Article VI, Clause 2 (ie, the Supremacy Clause) and Marbury v. Madison].  It should be no surprise, then, that nullification has never been widely accepted as a solution to alleged unconstitutional federal actions, and it has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958). Though nullification may be an attractive option for those who feel the federal government has encroached too far on the powers of the states and the rights of citizens, it is not a constitutional remedy.”

The NCICL then gave a short review of the history of Nullification, claiming it is a “checkered past.”  What the NCICL failed to do, however, was to clarify that the “checkered past” is mostly the result of state action cited by history incorrectly as “nullification.” For example, the article notes: “In the mid-1900s segregationists in southern states used nullification to rationalize opposition to desegregation. For instance, in order to prevent federally mandated integration, Arkansas passed an amendment to its state constitution to prohibit desegregation.”  Nullification stands for the principle that any law passed without a valid grant of power is null and void from its inception and is therefore unenforceable.  A law that is legitimate and pursuant to a legitimate grant of power cannot be subject to nullification.  A state or local government that refuses to enforce a valid exercise of legislative power is merely violating federal law.  It is not nullifying it.  The federal government can theoretically send in Federal Marshals to arrest the governor and the state legislature or local officials, whatever the case may be.  It can bring suit in federal court to force it to comply.  Desegregation was the federally-mandated remedy in accordance with certain valid decisions by the Supreme Court, such as Brown v. Board of Education.  The amendment to the Arkansas state constitution was in violation of the Supremacy Clause. It cannot, in literal terms, be considered a nullification action.

Opponents of nullification like to discredit it by associating it with secession. They claim it was used as a prelude to the Civil War. Furthermore, they claim it was used to as the vehicle to intentionally perpetuate slavery.   The NCICL hasn’t done this, thank goodness.  But many state representatives, in an effort to obscure the real intention behind nullification, have eagerly made that connect.  Nullification is the proper remedy to curb the constitutional abuses of the federal government.  That is it.  Secession is an entirely different remedy, and is often used for different circumstances, such as when the government itself is simply not working out.  Nullification, when used properly to fight government tyranny, is an effective  means to prevent secession.  What do I mean used “properly”?  If a state legitimately believes the government has overstepped its bounds under the Constitution and can justify that interpretation in light of the federal compact, then the government itself has the obligation to respect that decision by the state.  Government is bound by the Constitution.  After all, it is a document used to enforce limits on the government, not people. Furthermore, all officials are bound by oath to support and defend the Constitution.  [“I, [name], do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic…”].  The government must respect limits on its power, including when those limits are forced by the states, pursuant to legal and constitutional authority.  So the power to prevent secession actually lies within the government’s power and discretion.

The NCICL continued to discredit nullification by alleging that James Madison only half-heartedly supported nullification/interposition and in fact, never supported it after 1800. The staff writer noted: “During the Nullification Crisis of the 1820′s and 30′s, John C. Calhoun and other South Carolinians claimed to take up Madison and Jefferson’s mantle as they pushed for nullification of federal tariffs on imported goods.  James Madison, who was still living, disputed their claims. Madison intensely criticized and rejected Calhoun’s theory of nullification, saying that allowing a single state to nullify a federal law ‘would ‘altogether distract the Govt. of the Union and speedily put an end to the Union itself.’ According to Madison, it was not the goal of the Resolutions to ‘assert a right in the parties to the Constitution of the United States individually to annul within themselves acts of the Federal Government, or to withdraw from the Union.’”  The writer never once entertained the possibility (indeed, likelihood) that Madison didn’t support Calhoun’s use of nullification because he believed the tariff to be a valid exercise of Congress’ constitutional authority. Furthermore, the text of the Virginia Resolutions clearly indicates that each state “has a duty to watch over and oppose every infraction” of the Constitution, and each state is “duty bound” to maintain its constitutional liberties within its “respective” territory.  Hence, Madison did indeed contemplate nullification by a single state (rather than by all the states jointly).

The paper was not completely misleading though.  For example, it stated: “The Kentucky and Virginia Resolutions earned only negative response from the North and gained no traction in the South.  In fact, the Resolutions were never endorsed by another state, and were affirmatively rejected by ten states.  During the Nullification Crisis in South Carolina, Madison went to great lengths to distance himself from the nullifiers. The South Carolina movement failed to gain support from any other state.”  This is all true.  But just because nullification was not roundly endorsed by a majority of states, or even by many states (only 2 endorsed it), doesn’t mean the remedy is not a rightful and legal remedy.  It doesn’t mean it is not still available to them. It merely means the states weren’t ready to stand up to the federal government at the particular point in time.  Perhaps Madison tried to distance himself because he felt the high tariffs which gave rise to South Carolina’s Ordinance of Nullification weren’t worth the likely escalation towards secession.  The key to nullification/interposition is in the language of the Virginia Resolves of 1798.  Madison wrote that such a remedy should only be used in “case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the compact, in order to arrest the progress of the evil…”

For many years, the individual states have been timid about asserting their rights under the Tenth Amendment.  But that doesn’t mean they can’t exercise the full extent of their sovereignty. It doesn’t mean the Tenth Amendment has been eroded or marginalized in any way.  In fact, we are seeing a resurgence in state sovereignty.  A number of states have introduced Sovereignty Resolutions in their state legislatures. Some of them have included particular acts of the federal government which would be considered so egregious as to cause a fatal breach of the compact holding the state in the Union.  One such act is any attempt on the part of the federal government to re-interpret the Second Amendment to deny individuals the right to own and possess firearms (for self-protection and to protect against government).  Likewise, we are seeing a resurgence of the doctrine of nullification among states.

You can’t cherry-pick when it comes to the Constitution (although many love to do just that).  Either you agree to be bound by the entire document or it means nothing.  The same Supremacy Clause that protects the federal government’s authority under the Constitution and all laws and treaties made in furtherance thereof also implies that laws not made in furtherance of the Constitution are not considered ‘supreme law.’  Hence the Supremacy Clause directly supports the very premise of Nullification.

The article then went on to sound downright ridiculous. It claimed that there is no support for nullification in the US Constitution – either in the Tenth Amendment or the Supremacy Clause.  Wow, I had to scratch my head at that point.  Could it be that the organization consulted a different constitution than the one we all know and love?  The article asserted: “The Tenth Amendment does not authorize nullification. It 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.’ The Supremacy Clause declares that federal laws are ‘the supreme Law of the Land…anything in the Constitution or Laws or any State to the Contrary notwithstanding.’  Moreover, the Supremacy Clause declares that “the Judges in every State shall be bound thereby.’ “

Furthermore, the Raleigh-based organization claimed that nullification lacks legitimacy because it has been rejected by none other than the Supreme Court.  First it asserted that “the legal community and courts thoroughly repudiated the doctrine.”  Then it stated: “The unanimous Court in Cooper quoted former Chief Justice Marshall who, speaking for a previous unanimous Court, said:  ’If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the Constitution itself becomes a solemn mockery . . . .’  [Cooper v. Aaron, 358 U.S. at 18 (quoting United States v. Peters, 5 Cranch 115, 136 (1809)]. In other words, states cannot nullify federal laws.”

Finally, the article concluded with these words: “While many Americans justifiably feel that the federal government has overstepped its constitutional bounds in recent years, the doctrine of nullification is not the answer.  Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court. Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.”

The article cites law review articles, the US Constitution, and Supreme Court decisions (Marbury v. Madison and Cooper v. Aaron).  It never once addressed the Kentucky Resolutions or the Virginia Resolutions.  It never consulted the men who wrote the Constitution or the Federalist Papers in order to find out the intent behind the document, including the Tenth Amendment and even the very Supremacy Clause on which it relies so heavily to repudiate the remedy of Nullification.

A Rebuttal —

As I stated at the beginning, I am terribly disappointed in the position that the NC Institute for Constitutional Law decided to take on nullification in their article.  Unfortunately, some of our NC state legislators also share a similar position on the subject.  But a great many States’ Rights and other constitutional organizations happen to believe as I do – that the NCICL got it completely wrong.  They misinterpreted the Constitution, as well relied on misplaced legal authority.  I’d like to point out the flaws in the article regarding the constitutional analysis, as I understand them.  I’d also like to emphasize that my position is taken from the Founders themselves and in fact, I will state that position using their words and not mine.

1).  Where the Authority Comes From.  First, the NCICL states that “Nullification holds that a state can invalidate what it believes are unconstitutional federal laws based on states’ rights under the Tenth Amendment to the U.S. Constitution.”  Well, that is not entirely correct.

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. This is precisely what is enshrined in the Supremacy Clause.  That clause states: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be 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, anything in the Constitution or laws of any state to the contrary notwithstanding.”  The Constitution created a government of LIMITED POWERS.  Only laws made in pursuance of those limited and defined powers are to be considered “supreme law.”  In other words, the Supremacy Clause only applies if the federal government is acting in pursuit of its constitutionally mandated powers. Laws made outside of those powers or in abuse of those powers are not supreme and therefore states are free to regulate.

The next step in Nullification is the principle which allows states to stand up to the federal government and to declare that said law is unconstitutional and will not be enforced in the particular state.  And that is where the NCICL is correct.  It is the Tenth Amendment which stands for that proposition.  This principal of dual sovereignty is America’s most important contribution to political science and the last in our series of checks and balances on government power (not to mention the election process).  Thomas Jefferson expressed the importance of having a separation of powers: “To preserve the republican form and principles of our Constitution and cleave to the salutary distribution of powers which that has established. These are the two sheet anchors of our Union. If driven from either, we shall be in danger of foundering.”  (in a Letter to Justice William Johnson, June 12, 1823)

Finally, the legal authority comes from the nature of the Constitution itself, which is a compact (or contract).  Since it was the several states which formed that instrument (which thus created the federal government), they best understand the nature and extent of the powers that they agreed to delegate and as Jefferson explained, “they being sovereign and independent, have the unquestionable right to judge of its infraction.”  As parties to the federal compact, Jefferson explained that the states must be forever vigilante and must step up, in a constitutional manner, to oppose every attempt, by any branch, to violate that compact.

Thomas Jefferson wrote: “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.”  (draft of the  Kentucky Resolves of 1798).  Every state at the time of ratification understood that the ratification of the Constitution and their joining the Union was dictated by the law of compact.

2).  The Supremacy Clause.   The NCICL claims that nullification lacks any basis in the Constitution.  The article states: “Nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution.”  It then cites the Supremacy Clause. (U.S. Constitution, Article VI, Clause 2).

Despite what position the NCICL might take, the Supremacy Clause of the US Constitution in fact expressly embodies the core principle of nullification. It does so clearly on its face.  It has been explained as such by our Founding Fathers and the very framers of our Constitution.  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.  It only refers to “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…” Only laws passed pursuant to delegated powers are supreme.  Laws passed outside the scope of such powers are null and void and can be disregarded.  When you consider and acknowledge what the Constitution stands for, then this becomes as clear as the nose on one’s face.  The Constitution is a document that was written and ratified to enforce law on government.  It was written to limit the conduct of government to specific grants of responsibility. It is not a carte blanche provision.

The concept of federal supremacy was articulated by Chief Justice John Marshall, who led the Supreme Court from 1801 to 1835.  In 1819, he wrote: “The government of the Union, although limited in its power, is supreme within its sphere of action.”

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. It is a mindset that will help the government on its way to tyranny.  States aren’t supposed to be complicit in federal tyranny but rather are supposed to oppose every instance of it.

We also must root out the mindset that states have lost their footing vis-a-vis the federal government ever since the surrender was made at Appomattox to end the Civil War, and thus the Supremacy Clause has somehow been indirectly enlarged. Just because a handful of states chose to exert their sovereign right to change their form of government – a right that is enshrined in the Declaration of Independence and not denied in the Constitution – but were subdued and defeated by the Army of the federal government in the Civil War does not mean that the states have surrendered any of their reserved powers to the government.  The stigma of the Civil War cannot be used to propagate false constructions of the Constitution. The protection of liberty depends on the States acting in full exercise of their sovereignty (minus the limited powers delegated to the federal government) but also being mindful that they should do what they can to ensure the survival and integrity of the Union. States should not be legally bound to SERVE the federal government through such false constructions of the Constitution, which essentially is the position that the NCICL takes.  Our government design was intended to be the other way around – the federal government was to serve the states.  Per our charter of freedom, Jefferson’s Declaration of Independence , Liberty comes first.  And the magical formula originally enshrined in the Constitution by our Founding Fathers was this:  Limited Government = Maximum Liberty.

And we also have to root out the mindset that states must surrender their sovereignty to the gradual and strained constructions of the Constitution which have happened over the years by liberal Supreme Court justices who have shown no conservative restraint in their interpretation of the Constitution.  A contract, once signed, cannot be changed in material terms.  And the material term at issue is the limited nature of federal power.

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:

–  “But it is said that the laws of the Union are to be the SUPREME LAW of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A LAW, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. It would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY. But it will not follow from this doctrine that acts of the large society 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. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.”  (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)

–  “I consider the foundation of the Constitution as laid on this ground:  That ‘all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people. [10th Amendment].  To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.’”  (Jefferson wrote this in an opinion he wrote concerning a National Bank, at the request of President George Washington)

–  “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”   (Jefferson’s Notes on Virginia, 1782)

3).  The Tenth Amendment.   In its introduction, the NCICL claimed that nullification is based on the Tenth Amendment yet later in the article, it stated that “the Tenth Amendment does not authorize nullification.” I addressed the issue of authority above.  It comes from the federal compact itself, founded on the law of compact.

The principle of Federalism – or separation of powers — was incorporated into the Constitution through the Tenth Amendment. “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.” The Tenth Amendment is what makes the distinction between states’ rights and federal powers. With respect to the limited, enumerated powers that are granted to the federal government in the Constitution, the federal government is supreme (hence, it is sovereign). In all other areas of government, the States are considered supreme (they are sovereign). Hence, the concept of DUAL and COMPETING sovereigns. It is this division of power which keeps power centered where our Founders intended it to be… at least, that was the idea.  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.  The implication, of course, is that the States have to be vigilante and guard their sovereign rights and powers from a central government that will always seek to invade the domain of states’ rights in order to enlarge and concentrate its own powers.  As history has always shown, governments have goals and objectives of their own, often in conflict with the rights of the States (and of the individual as well). To take it one step further, which both Thomas Jefferson and James Madison advocated, the states have an obligation – a duty – to stand up to any conduct on the part of the government which exceeds powers granted to it under the Constitution.

Nullification, as explained above, is based primarily on the Supremacy Clause, but also on the Tenth Amendment.  And yes, the Tenth Amendment does provide the basis for asserting a power that resides in the State and therefore not available for the federal government.  If the power is therefore not available to the federal government, any law attempted to be passed pursuant to that power would be invalid, null, and void.  Under the law of compact, the states would have the authority to call the federal government out on conduct that exceeds the authority granted in the compact document – the Constitution.  Nullification would therefore be the proper remedy.

As mentioned earlier, James Madison explained the constitutional division of powers 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.”

4).  The Supreme Court.   The final claim the NC Institute for Constitutional Law makes is that nullification lacks legitimacy because it has been rejected by the Supreme Court.

First of all, would there even be any doubt that any branch of government would like to disavow nullification.  It is a direct threat to their power and their authority.  Hasn’t the Supreme Court become far more powerful than any of our Founders could have imagined?

The position of our Founders can be summarized by two schools of thought.  On one hand, Thomas Jefferson never trusted the federal courts, especially the Supreme Court.  He never saw the wisdom in trusting six individuals (the make-up of the Court at the time).  On the other hand, the drafters of the Constitution envisioned the judiciary as the weakest branch, not capable of much more than offering an opinion as to the constitutionality of the actions of the other branches.

Thomas Jefferson, a Founding Father and drafter of our founding documents, saw the Supreme Court as part of the problem.  Remember how the Court, almost from the beginning, tried to give the government powers the states never intended it to have (that’s why it was the states which were challenging the government on the power grabs !!)  For one, it was itself a branch of the federal government and thus not an impartial arbiter. How could it be expected to be a fair umpire for the States?  As Jefferson 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.”

In a letter to a friend in 1821, Jefferson wrote:  “The great object of my fear is the Federal Judiciary.  That body, like gravity, ever acting with noiseless foot and unalarming advance, gaining ground step by step and holding what it gains, is engulfing insidiously the special governments into the jaws of that which feeds them.”  (Letter to Spencer Roane, 1821)

In a letter that same year to another friend, he wrote: “It has long, however, been my opinion, and I have never shrunk from its expression, (although I do not choose to put it into a newspaper, nor, like a Priam in armor, offer myself its champion,) the germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, (for impeachment is scarcely a scare-crow,) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”  (Letter to Charles Hammond, August 18, 1821)

And in a letter penned 1823, he wrote: “At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous; that the insufficiency of the means provided for their removal gave them a freehold and irresponsibility in office; that their decisions, seeming to concern individual suitors only, pass silent and unheeded by the public at large; that these decisions, nevertheless, become law by precedent, sapping, by little and little, the foundations of the Constitution, and working its change by construction, before any one has perceived that that invisible and helpless worm has been busily employed in consuming its substance. In truth, man is not made to be trusted for life, if secured against all liability to account.”   (Letter to Monsieur A. Coray, October 31, 1823).

As to the weight to be given the judiciary in the scheme of checks and balances, Alexander Hamilton gave this explanation in Federalist No. 78:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. For I agree, that “there is no liberty, if the power of judging be not separated from the legislative and executive powers.”  And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.

William Jasper, editor of The New American, an affiliate of the John Birch Society, wrote: “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.’”

Jeannette Doran, of the NCICL, was asked to join a forum including strict constitutionalists to debate Jefferson’s remedy of nullification.  She declined.  When asked why she didn’t want to participate, she simply responded: “I simply do not believe a debate is necessary. As NCICL’s paper makes clear, nullification efforts lack legitimacy.”

Conclusion –

The NC Institute for Constitutional Law claims that “Nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy…” It claims that the Supremacy Clause settles the issue of nullification.  This is simply a misguided interpretation and analysis of nullification.  The NCICL might be apologists for the federal government or they might be supporters of the “Living Document” approach to constitutional interpretation so that they personally want to illegitimize this re-emerging remedy, but they simply cannot disregard nullification on the bases they provided.

There should be no need for someone like me to articulate why nullification is indeed a legitimate concept and a legitimate exercise of state power to resist federal tyranny, or for anyone else for that matter.  Our Founders did a far better job of that than I ever could.  They did a better job than any of us could.  Alexander Hamilton did a good job of it in the Federalist Papers. Thomas Jefferson did an excellent job in the Kentucky Resolves of 1798 and 1799.  James Madison did a superb job in the Virginia Resolves of 1798.  And John Calhoun did an outstanding job in his Fort Hill Address.  Any of our Founders and any of these primary documents can be used to argue successfully against the NCICL’s position.

I don’t know about anyone else, but when it comes to what our Constitution means and what our legal remedies are, I take my cue from Thomas Jefferson and James Madison and Alexander Hamilton, and not from a modern-day Supreme Court or self-serving branch of the federal government, or even a constitutional organization like the NCICL.  The history of the federal government – all 3 branches – is a history of repeated attempts to enlarge and concentrate its power.  Anybody who fundamentally understands the purpose and goals of the Constitution – to establish a LIMITED government of defined responsibilities that serves and unites the states but respects the bounds of sovereignty – knows that the Supremacy Clause does NOT give protection to EVERY action/law/policy of the federal government. Rather, the Supremacy Clause affirms the very nature of the Constitution – that when laws are made in pursuance of legitimate grants of power, they are supreme and to be treated as such by courts throughout the country. The reverse is therefore true. When laws are not made in pursuance of legitimate grants of power and are instead an exercise in abuse of power, then they are illegitimate and are null and void.

I suppose the next article to come from the NCICL will assert that the Founders aren’t the real authorities to consult any longer for the meaning of the Constitution.

While groups like the NCICL and even elected state officials denounce nullification as an illegitimate exercise of state power, you have to ask yourself one question:  If this remedy is off the table, what are the meaningful options left to states who are frustrated in their attempts to stand up to growing federal tyranny?  Do they take their chances with a rogue Supreme Court?  Is that what our Founders had in mind by a “limited” government that “serves” the states and respects their sovereignty and sovereign concerns?  I don’t think so.

The government can push its position that nullification lacks legitimacy because the Supreme Court says so (or alludes to it).  Supporters of big government can continue to associate nullification wrongly and deceptively with slavery and the perpetration of Jim Crow.  And state representatives can refuse to support it, thereby killing the spirit that once refused to ratify the Constitution until it incorporated the Tenth Amendment so that states’ rights would remain strong and relevant.

But what if Nullification is the best shot we have of restoring our republic?  Would  we be willing to take another look at this remedy that Thomas Jefferson articulate for us?   After all, our distinct group of Founders, so educated in government theory and so inspired to secure the liberty won by the states in the Revolutionary War, would have left us a way to preserve that liberty so that the combined history of England and America in advancing the rights of men with respect to government would not be sacrificed.  That safeguard is the combination of federalism and nullification.

There will be opponents that will never see the wisdom in this most important of checks and balances. But that’s because so far we’ve been insulated from the kind of evil that the rest of the world has suffered.  Imagine that sometime in the near future, because the world has become an ever-increasing scary place, on the verge of war and great economy stress, and because Americans want security more than freedom, we happen to elect a charismatic president who makes a lot of promises.  That President is Adolf Hitler. What would you hope would happen in this country.  How would you hope  your system of government would operate?  Would you hope that the states blindly follow whatever policies this President Hitler 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 what if he then proceeded to round us up and put us in detention or death camps…. because after all, at that point we 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 President Hitler and the federal government?”   Or would you hope and pray that your state would stand up, assert its sovereignty, protect you and fellow citizens from harm, and refuse to enforce Hitler’s policies in your state?  That’s the worst-case scenario, I know.  But it makes you think about the importance of all the checks and balances that we have in our American system.  Let’s not take any for granted, and especially let’s not call into question the legitimacy of a safeguard like Nullification/Interposition by placing more emphasis on the federal government’s position over the Founders’.

I suppose this leaves us with the question:  ”Is it possible for us today to reclaim Jefferson’s legacy?”

Our greatest Founding Father left us with this advice:  “The ground of liberty is to be gained by inches; we must be contented to secure what we can get from time to time, and eternally press forward for what is yet to get.”  No matter how much liberty we have lost, no matter how serious our constitutional crisis is, or how oppressive government has become, it is still possible to “press forward.”  But we need his remedies. If lovers of liberty are persistent enough, Jefferson’s principles will prevail and we will once again have the freedom which he helped our ancestors to secure.

References: Nullification: An Unconstitutional Remedy,” NC Institute for Constitutional Law, August 23, 2012.  Referenced at:  http://ncicl.org/article/776

Clarence B. Carson, “Judicial Monopoly Over the Constitution: Jefferson’s View,” The Freeman, October 1983, Volume 33, Issue 10.  Referenced at:  http://www.thefreemanonline.org/columns/judicial-monopoly-over-the-constitution-jeffersons-view/

Federalist Papers (a list of all, with titles) – http://thomas.loc.gov/home/histdox/fedpapers.html

Federalist No. 78 – http://thomas.loc.gov/home/histdox/fed_78.html

Jeffrey Barrett, “Madison Revived,” American Thinker, July 8, 2012.  Referenced at: http://www.americanthinker.com/2012/07/madison_revived.html

The Kentucky Resolves of 1798 –  http://www.princeton.edu/~tjpapers/kyres/kyednote.html

The Kentucky Resolves of 1799 –  http://www.constitution.org/cons/kent1799.htm

The Virginia Resolves of 1798 –  http://www.constitution.org/cons/virg1798.htm

Virginia Report of 1799 (report to the House of Delegates, regarding the Alien & Sedition Acts) – http://www.constitution.org/rf/vr_1799.htm

Thomas Jefferson, on the topic of Republican Government (letter to Joseph C. Cabell, February 2, 1816) –  http://press-pubs.uchicago.edu/founders/documents/v1ch4s34.html

Thomas Woods, Nullification: How to Resist Federal Tyranny in the 21st Century; Regnery Publishers, 2010.

In Remembrance of 9/11

  by Diane Rufino

Please remember to lower your flags to half mast in honor of the innocent American lives lost and sacrificed on that horrific morning 11 years ago.

In remembrance of the day that will forever seer the concept of ‘evil’ in our minds, let’s look back at that fateful morning, exactly 11 years ago today to that series of horrific events which unfolded before our unbelieving eyes……

It was almost 8:40 am on the morning of Tuesday, September 11, 2001.  It was a beautiful, clear, sunny morning.  Both towers of the World Trade Center, in lower Manhattan, were slightly less than half full.  Flight 11, heading from Boston to LA, had already been hijacked and had broken contact with air controllers.  At about that time, Betty Ong, an attendant on Flight 11, called American Airlines Operations Center, to report that the plane had likely been hijacked.  She reported that the first class attendant, the purser, and a first class passenger had been stabbed but no one really knew what was going on.  Flight attendant Amy Sweeney also called American Airlines. She was scared.  She said the plane was flying erratically and had all of a sudden made a rapid descent. She said: “I can see the water. I can see the buildings. The plane is flying so low.”  The transcript shows that she then took a slow, deep breath and calmly said: “Oh my God!”  The phone went dead for both Amy and Betty at 8:45.  At 8:46 am, Flight 11 crashed into the North Tower. The plane struck the 93rd through 99th floors of the 110-story building. No one above the crash line survived; approximately 1,360 people died.  Below the crash line, approximately 72 died and more than 4,000 survived.  87 people perished onboard  Flight 11. In addition to Betty and Amy, Sara Low was also a flight attendant who lost her life.  Her father described her as being prone to silliness and having an infectious personality, one that could calm even the most nervous traveler.  He said: “My life stopped when my daughter died.”

About the time of the crash, air controllers noticed that Flight 175 fell off the radar. And a few minutes later, they learned that Flight 77 had been hijacked.  It was then that they then suspected that Flight 175 had also been hijacked. In fact, both pilots on board that plane had already been stabbed to death.

At 8:55 am, Karl Rove took President Bush aside and told him of the crash at the North Tower. They were headed to an elementary school in Sarasota, Florida.  At first they believed it was likely an accident, perhaps a pilot who had suffered a heart attack.

At 9:03 am, Flight 175 crashed into the South Tower.  Millions watched the crash live on television. The plane struck the 77th through 85th floors of the 110-story building.  Approximately 100 people were killed or injured in the initial impact; and 600 people in the tower would eventually die.  A woman on the 83rd floor made a last call to 9/11. She said: “The floor is completely engulfed in smoke.  We’re on the floor and we can’t breathe…. I don’t see any more air. … I’m going to die, aren’t I?”

The death toll from the South Tower was far lower than in the North Tower because when the occupants learned of the attack on its neighbor, about 2/3 immediately evacuated the building.

The combined death toll from the two towers was estimated at 2,606.  60 people perished on board Flight 175.  343 first responders – firefighters and paramedics – would also perish. And 23 officers of the NYPD as well.  Firefighter Terence Hatton — who earned 19 medals in 21 years — died before his wife even had the chance to tell him that she was pregnant.

At least 200 people fell or jumped to their deaths from the burning towers.  We remember the footage of people gathered in groups at the windows in a last minute attempt to get some oxygen.  We remember many of them jumping in order to avoid a fiery death. The reporters called them “jumpers.”  We can’t imagine being faced with such a hopeless choice. Our hearts ached as we watched the footage.

NYC Mayor Rudy Guiliani, who arrived at the scene immediately, has been forever touched by what he witnessed that morning.  He said: “As I looked up, my eyes caught on a man on the 100th floor of the North Tower near the top.  I realized I was watching the man throwing himself out. I watched him go all the way down and hit…  I just stood there and watched.. frozen, because it was so incomprehensible.  Over the course of time I saw several other people jumping, I can’t remember how many.  Two of them were holding hands. Of the many memories that stick in your mind from that day, that’s the one I remember every single day.”

At the time the second plane struck the South Tower, President Bush was in a second grade classroom promoting his education policy and listening to the children read a story about a pet goat.  At 9:06 am, Chief of Staff, Andrew Card, seized a pause in the reading exercise to whisper to him that a second plane had crashed into the Towers.  President Bush continued briefly to listen to the children read their story so as not to relay any sense of alarm to them and in front of the cameras.

At 9:16 am, the FAA learned that Flight 93 might also have been hijacked but could not get confirmation.  At 9:20 CNN and Fox News commentator, Barbara Olson, a passenger on board Flight 77, called her husband, Ted Olson, Solicitor General at the Justice Department to tell him that the plane had been hijacked and that passengers were ordered to the back of the plane.  The FAA then learned that Flight 77, originally en route from Dulles Airport to Los Angeles, had circled around and was heading towards Washington DC.

At 9:28 am, the hijackers on board Flight 93 took out knives and stabbed pilots, flight attendants, and passengers. Then they relocated the remaining passengers to the back of the plane and threatened to detonate a bomb.  Air control was able to hear Arab voices on the radio.

At 9:29, President Bush delivered his first address to the nation that day –  from the elementary school, in front of about 200 children:  He said: “Today we’ve had a national tragedy. Two airplanes have crashed into the World Trade Center in an apparent terrorist attack on our country.”

At 9:34 am, the FAA noticed that Flight 77 was missing. It had dropped from radar.  At 9:36, it crashed into the first floor of the Pentagon, along the west wall.  All 64 people on the plane perished and 124 people working in the building were killed.  A further victim would die in a hospital several days later.  Donald Rumsfeld ran from his office on the other side of the Pentagon and went immediately to the crash site.  He helped carry victims on stretchers and helped medics set up IVs.

At 9:42 am, Mark Bingham, on board Flight 93, called his mother and said, “I’m on a flight from Newark to San Francisco and there are three guys who have taken over the plane and they say they have a bomb.”  He didn’t stay on the phone long, but he repeated several times: “I love you Mom. I love you very much.”   Fellow passenger, Todd Beamer, was able to make a call for 13 minutes, to a GTE customer service supervisor, who then immediately notified the FBI.  He said that the plane was hijacked by 3 people and they killed the pilot and co-pilot.  He said the hijackers had locked themselves in the cockpit and appeared not to know how to fly the plane.  Whether they realized it or not at the time, Mark and Todd both attended the same high school – Los Gatos High. They were both athletes. Flight 93 was en route at that point for Washington DC.  F-16 fighter jets were in the air, tracking it and poised to shoot it down.

At 9:57 am, it is believed that Flight 93 passengers, led by Todd Beamer, Mark Bingham, Tom Burnett, and Jeremy Glick, took a food cart and used it as a battering ram and shield to storm the cockpit.  As they rallied to take control of the plane, Todd recited the 23rd Psalm and ended with these words: “Are you ready guys.  Let’s Roll.”

At 9:59 am, eyewitnesses at Ground Zero heard a series of loud explosions and then the unimaginable happened… the South Tower collapsed.

At 10:06 am, Flight 93 began to break up in mid-air before it finally crashed into an empty field in a place called Shanksville, about 80 miles southeast of Pittsburgh, and about 124 miles or 15 minutes from Washington, D.C.   Debris was found very far away from the crash site and in fact, very little wreckage was found there.  All 40 passengers were sacrificed.

At 10:28 am, eyewitnesses at Ground Zero heard another huge explosion and then the North Tower collapsed. They said they could hear the sound of twisting and crushing metal.  (If you close your eyes, I’m sure you can recall all these events as clearly as when they happened 10 years ago. I know I can)

Mayor Guiliani was asked how many had died and he answered:  “The number of casualties will be more than any of us can bear.

2,606 people died in the towers or on the ground.  The death toll could have been much worse.  An estimated 15,000 people made it out of the World Trade Towers to safety after the first plane crash.   246 people on the four planes died. There were no survivors.  The hijackers turned our beloved Twin Towers into slaughterhouses.

Shortly after the towers fell, Kevin Shea, an off-duty firefighter, was found on West Street, with a broken neck, severed thumb, internal injuries, and very little memory of what he had done as the buildings burned.  He suffered slight amnesia but was keenly aware that 12 other firefighters from his fire company who raced to the World Trade Center never made it out alive. Firefighter Anthony Sanseviro was in tears, mourning the death of his longtime friend and fellow firefigher Danny Suhr, who was struck by a falling body and killed as they were running to the burning towers.

At 3:15 pm, President Bush had arrived back in DC.  Condoleeza Rice greeted him with these words: “We’re at war, sir.” Bush asked CIA Director George Tenet who he thought was responsible for the day’s attacks and Tenet replied: “al-Qaeda. The whole operation looked, smelled, and tasted like bin Laden.” Tenet then told him that passenger manifests showed that three known al-Qaeda operatives were on board Flight 77.

At 8:30 pm, President Bush prepared to address the nation –  to address 320 million Americans who had witnessed an unspeakable tragedy. He gave these words: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices: secretaries, business men and women, military and federal workers, moms and dads, friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge — huge structures collapsing have filled us with disbelief, terrible sadness, and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed.  Our country is strong.

A great people has been moved to defend a great nation. Terrorist attacks can shake the foundations of our biggest buildings, but they cannot touch the foundation of America. These acts shatter steel, but they cannot dent the steel of American resolve. America was targeted for attack because we’re the brightest beacon for freedom and opportunity in the world. And no one will keep that light from shining. Today, our nation saw evil — the very worst of human nature — and we responded with the best of America… with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could….

I have directed the full resources of our intelligence and law enforcement communities to find those responsible for these evil acts and to bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.”

Before going to bed that night, President Bush would write this in his diary: “The Pearl Harbor of the 21st century took place today.… We think it’s Osama bin Laden.”

Those working at the scene hoping to find any survivors were horrified. There were places they walked where they saw body parts — parts of human bodies…  hands, legs. Mayor Guiliani would later report: “We recovered about 19,000 body parts – a very small percentage of intact bodies.  About half of the families got something they were able to bury and the other half got nothing.”

Today – 10 years later – we stand here not as Men or Women, Young or Old, Rich or Poor, or members of any ethnic group.  We do not stand here as laborers or professionals or housewives or public servants. Or as Christians or non-Christians. We are Americans.  On the morning of 9/11, our enemies didn’t target any one group over another. They targeted Americans.  Firefighters and other first responders risked their lives to save those dying and in danger..  They didn’t see the scared and suffering in terms of race, religion, gender, or profession. They simply saw them as fellow Americans.

The spirit that the terrorists tried so hard to kill on September 11 has never been stronger.  The attacks only solidified our commitment that America will survive and freedom will ring.  The attacked forged a new generation of patriots.  Men and women have been inspired in force to join the armed services.  Over 3 million have volunteered.

Today is a day to remember the attack on our country, the overwhelming response by first responders, and the tremendous outpouring of support and love for fellow Americans.  Today we honor those who died for no reason other than they happened to be where they were on that morning.  The display of the flag at half-mast, the participation in remembrance services, the watching of footage on TV, and the saying of prayers is about respect and an unspoken duty to keep 9/11 from fading in significance. It’s about a solemn promise to fellow Americans to keep their spirit and sacrifice alive.  As Scottish poet Thomas Campbell wrote: “To live in hearts we leave behind is not to die.”  3000 unarmed, innocent Americans were targeted for death in NYC and Washington DC because they were Americans.  It could have easily been my husband or my child who was on one of those planes, or your husband, wife, or child.

Today we renew our respect for firefighters and others who quickly and unconditionally respond to emergency and tragedy.  We recall the contribution from the brave firefighters who lost friends and family and even their own lives.  We thank the clergy who performed last rights and comforted those who were injured and dying.  Their words and presence meant more than we can ever know.  343 firemen and paramedics lost their lives on that fateful morning.  They crawled up fiery blackened, smoke-filled staircases to save complete strangers… And they willingly did so.  We have such fondness and respect for our firefighters.  They are a special breed.  You see, the death card is one that every firefighter carries in his hand. He hopes he never has to play it, but it’s always there.  Every time we hear a siren or a fire truck wail, we instantly know that a life will be saved.  Sadly, we never know if the fireman’s life will be sacrificed.

As we recall the barbaric events of the morning of 9/11 and the human tragedy that unfolded before our eyes, and as we participate in remembrance services, we look for the soothing words that only members of the clergy can deliver.  Reverend Michael Bresciani said: “If a hundred clergy were called to pray at the ceremony they could do nothing to bring back those lost in the 9/11 attack.”  But it would have been an act of respect, of consolation, and above all, a welcome reprieve from the indignations the families have already endured (including the fact that certain perpetrators of 9/11 have yet to be brought to justice, let alone even tried, a triumphant mosque near Ground Zero that is moving forward in its development, and an atheist suit that has been filed to remove the cross – a remnant from the crumbled towers – that was intended to be part of a memorial display).  People look to clergy for comfort and empathy, and in fact, it was in this very capacity that Father Mychal Judge, chaplain of the NY Fire Department, lost his life at the site of the flaming Towers.  He was in the lobby of the South Tower administering last rites when it collapsed.  Debris flew everywhere, striking Father Mychal in the head.  It was reported that at the time he was struck, he was praying out loud:  “Jesus, please end this right now! God, please end this!”  When I was in high school, Father Mychal served at St. Joseph’s parish in my hometown of East Rutherford, in north Jersey.  I was in a youth group at the time.

It is said that the test of any religion, government, political system, or educational system is the type of man or person that it forms.  Let us think about that as we reflect on the events of 9/11 and let us hope that the events of that day will forever inspire us to put forth the best leaders in the world, committed to freedom, peace, and security.

May all those who died on 9/11 rest in peace and may we continue to remember what happened on that horrible day…