Making Sense of the Meaning and Intent of the Second Amendment: It Isn’t Hard, Folks!

2nd amendment - there are no rights if you can't defend them

by Diane Rufino, May 24, 2017

“No free man shall be debarred (denied) the use of arms.” –  as proposed by Thomas Jefferson for Virginia’s Bill of Rights, 1776

The Federal Farmer (anti-Federalist author) in 1788: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”

Patrick Henry to the Virginia Convention to Ratify the US Constitution, in June 1788: “The great object is that every man be armed.”

At the same time it ratified the US Constitution in 1788, the New Hampshire Ratifying Convention proposed this amendment for the Bill of Rights: “Congress shall never disarm any citizen, unless such as are or have been in actual rebellion.”

The Federal Gazette, dated June 18, 1789, described James Madison’s proposal for a Bill of Rights: “The people are confirmed in their right to keep and bear their private arms.”

“We have found no historical evidence that the Second Amendment applies only to members of a select militia while on active duty. All the evidence indicates that the amendment, like other parts of the Bill of Rights, applies to and protects individual Americans.”   —  The Court of Appeals for the 5th Circuit (2001)

INTRODUCTION –

The Second Amendment: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

For most of our nation’s history, the Supreme Court has essentially managed to avoid ruling on the meaning and intent of the Second Amendment and that worked out just fine. And that’s probably because for about 150 years, it apparently was universally understood that the amendment protected an individual right to arms rather than a right only when organized in a militia. It wasn’t until the 20th century that a legal debate began in earnest over the characterization of the right recognized in the Second Amendment.

Is the right to arms an individual right or a collective right?  Indeed, in the 20th century, federal courts have seemed confused on this question. Some embrace the historical model, which holds that the amendment recognizes the right of people, as individuals, to bear arms.  And others embrace the more radical model, the “collective rights” model, which holds that individuals have the right to arms but only when they are members of a militia.

The “collective rights” model was embraced in 1939 in a case called United States v. Miller.  The case arose after two men, Jack Miller and Frank Layton, were arrested for transporting a double-barrel 12-gauge shotgun across state lines and in interstate commerce. They were charged with violating the National Firearms Act (“NFA”).  Miller and Layton argued that the NFA violated their Second Amendment right to keep and bear arms and therefore it was unconstitutional as it applied to them. The federal district court agreed and dismissed the case. The government appealed and it went to the Supreme Court. The issue at the heart of the case was whether the Second Amendment protects an individual’s right to keep and bear arms. The Supreme Court concluded that it does not. It reasoned that because the possession of a sawed-off double barrel shotgun does not have a reasonable relationship to the functioning or efficiency of a well-regulated militia, the Second Amendment does not protect the possession of such an instrument.

Although the right to arms became an increasingly heated topic as the 20th century went on, the Supreme Court refused to hear cases to re-address the amendment.  And so, the Miller decision defined the position of the federal judiciary from 1939 for almost 70 years.  The Second Amendment did not recognize an individual’s right to have and bear arms for self-defense – only the defense of a State. But then in 2008 and then in 2010, the Supreme Court, with the late great Antonin Scalia on the bench, agreed to hear two cases, each addressing the same issue and each directly asking the Court to re-address the meaning and intent of the Second Amendment.  The 2008 case, District of Columbia v. Heller, addressed a federal gun control law, and the 2009 case, McDonald v. Chicago, addressed a state gun control law. [The first was a direct challenge to the Second Amendment and the second was a challenge under the incorporation clause of the Fourteenth Amendment].

In Heller, at issue was a gun ban in the District of Columbia (hence, it was a federal gun law) which regulated firearms in several ways: (1)  It made it illegal to carry an unregistered firearm; (2) It prohibited the registration of handguns; (3)  It required owners of lawfully-registered firearms to keep them unloaded and disassembled, even in the home, or bound by a trigger lock or other similar device unless the firearms were located in a place of business or being used for legal recreational activities.  Dick Anthony Heller was a D.C. special police officer who was authorized to carry a handgun while on duty. He applied for a one-year license for a handgun he wished to keep at home, but his application was denied, and so he brought suit to challenge the gun ban as violative of the Second Amendment.

The Supreme Court agreed with Officer Heller (5-4 majority, of course). It held that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.  Therefore, the ban on registering handguns and the requirement to keep guns in the home disassembled or nonfunctional with a trigger lock mechanism was inconsistent with the intent of the Second Amendment. Justice Antonin Scalia delivered the opinion.  The Court held that the first clause of the Second Amendment that references a “militia” is a prefatory clause that does not limit the operative clause of the Amendment. Additionally, the term “militia” should not be confined to those serving in the military, because at the time the term referred to all able-bodied men who were capable of being called to such service. To read the Amendment as limiting the right to bear arms only to those in a governed military force would be to create exactly the type of state-sponsored force against which the Amendment was meant to protect people. Because the text of the Amendment should be read in the manner that gives greatest effect to the plain meaning it would have had at the time it was written, the operative clause should be read to “guarantee an individual right to possess and carry weapons in case of confrontation.” This reading is also in line with legal writing of the time and subsequent scholarship. Therefore, banning handguns, an entire class of arms that is commonly used for protection purposes, and prohibiting firearms from being kept functional in the home, the area traditionally in need of protection, violates the Second Amendment.

The piece of legislation addressed in the McDonald case was Chicago’s gun registration law, which: (1) Prohibited the registration of handguns, thus effecting a broad handgun ban; (2) Requires that guns be registered prior to their acquisition by Chicago residents; (3) Mandated that guns be re-registered annually, with another payment of the fee; and (4) Rendered any gun permanently non-registrable if its registration lapses. 76-year-old Chicago resident Otis McDonald, a retired maintenance engineer, had lived in the Morgan Park neighborhood since buying a house there in 1971. He complained about the decline of his neighborhood, describing it as being taken over by gangs and drug dealers. His home and garage had been broken into five times. An experienced hunter, McDonald legally owned shotguns, but believed them too uncontrollable in the event of a robbery, and so he wanted to purchase a handgun for personal home defense. Due to Chicago’s requirement that all firearms in the city be registered, yet refusing all handgun registrations after 1982 when a city-wide handgun ban was passed, he was unable to legally own a handgun. So, he and some of his neighbors challenged the Chicago gun registration law as violative of the Second Amendment, as applied to the States through the Fourteenth Amendment. He didn’t believe that the Second Amendment was meant to leave him as a sitting duck – a potential victim – in his crime-ridden neighborhood.

The Supreme Court held that the Fourteenth Amendment makes the Second Amendment’ right to keep and bear arms for the purpose of self-defense applicable to the states. With Justice Samuel A. Alito writing for the majority, the Court reasoned that rights that are “fundamental to the Nation’s scheme of ordered liberty” or that are “deeply rooted in this Nation’s history and tradition” are appropriately applied to the states through the Fourteenth Amendment. The Court recognized in Heller that the right to self-defense was one such “fundamental” and “deeply rooted” right, and so, the Second Amendment’s protections and prohibitions apply to the States.

As you read the body of this article, consider what liberal justices Stephen G. Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor argued in their dissent. They wrote that there is nothing in the Second Amendment’s “text, history, or underlying rationale” that characterizes it as a “fundamental right” warranting incorporation through the Fourteenth Amendment.  Keep that in mind.

Heller and McDonald were decided after a deep look into the historical roots of the Second Amendment, something that the Court should have done in the Miller case. The current understanding is that the Second Amendment recognizes and protects an individual’s right to arms for self-defense and equally recognizes the right to have and bear arms for the purpose of a state militia.

The opinion makes sense.  According to the Declaration of Independence, and natural law, we have the right to life and liberty. These rights are inherent with our humanity. They are inalienable. We never surrender them. Therefore, by extension (by corollary), we must have the right to defend them. In other words, the right to life, and liberty (and Property too) also implies the right to defend them. Otherwise, the rights are meaningless; there are merely parchment pronunciations.

The desire to live and survive is innate; we reflexively act to protect our lives and to thrive. And when we can’t, we feel violated. Just ask anyone who has been the victim of a violent crime, of a robbery, an assault, a break-in.  Ask someone who has the experience of a stranger breaking into their house in the middle of the night. I had that experience. And I have a gun today because I never want to feel helpless and vulnerable and the victim of predation again.

From a simple reading of the Bill of Rights, one notices that the First Amendment and the other amendments as well, address individual rights. If the Bill of Rights identifies individual rights – as did the Magna Carta and the English Bill of Rights – shouldn’t one sense pressure to view the Second Amendment similarly?

Historically, the “individual right” view is the best proven one, and so the Supreme Court rightly decided the Heller and McDonald cases.  But what is that history that so grounds our Second Amendment and so secures its meaning as an individual right?

The DVD “In Search of the Second Amendment” explains this history very clearly.

THE HISTORY of the SECOND AMENDMENT

[This section is lifted, in part, from the DVD “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006)]

The 1930’s through the 1970’s was a time period when Americans were embracing their gun rights, but lawyers weren’t paying much attention to the Second Amendment – one way or another (that is, on either side of its interpretation).  There wasn’t much thought given to it. But as the years went on, there was growing evidence for the “individual right” view. Law reviews were publishing articles on the topic and books on the Constitution were taking notice of this meaning. Momentum was slowly building for a show-down in the Supreme Court to address this building consensus.

One of the leading Constitutional Law treatises of the later 20th century, American Constitutional Law, was written by Laurence Tribe, professor of Constitutional Law at Harvard Law School. His first edition was written in 1978. Attorney Leonard Levy wrote a subsequent book, Essays on the Making of the Constitution, in which he attacked Tribe’s textbook for failing to acknowledge the growing the evidence of the “individual right” view of the right to have a bear arms. Tribe immediately published a second edition accepting this evidence.

Why this growing trend?  And what does it mean for the Miller decision?  Did the Court at the time not have the evidence?  Before coming to the conclusion that the Second Amendment conferred only a collective right (although it appears they only alluded to this viewpoint without coming right out with a bright line rule of construction), didn’t they bother to go back and research the amendment’s history?

What got the ball rolling towards the “individual right” point of view?  One article appears to be responsible. The recent boom in Second Amendment legal scholarship that has led to most constitutional scholars to accept the view that the amendment protects an individual’s right to have and bear arms began with an article by Don Kates, published in the Michigan Law Review. That article was titled “Handgun Prohibition and the Original Meaning of the Second Amendment.’ [http://www.constitution.org/2ll/2ndschol/57mich.pdf].

Top legal scholars, many of which are liberal, such as Sandy Levinson (of the University of Texas, writing in the Yale Law Journal), Randy Barnett (Boston University School of Law), Bill Van Alstyne (Duke University), and Eugene (Professor at the UCLA School of Law) have made it clear that their research has led them to conclude that the Second Amendment protects an individual right to have arms.

The history behind the Second Amendment goes back well before the colonies were even settled. It goes back to the very history of the fore-fathers and founders of our country. It goes back to the history of England, the country that gave us so much of our common law, gave us our Bill of Rights, and gave us much of the foundation upon which we built our Declaration, our Constitution, and our system of government.

In medieval England, there was no royal army. There wasn’t enough money or control to have such a formal army. Instead, the King would have to count on his subjects to fight for him – to fight for the kingdom. And so, by law, the King established a citizen militia.  By law – the Militia laws – every male subject, beginning at a certain age, was required to own guns, have ammunition, be trained in their use, and show up for regular training sessions. Citizens could be called up at any time by the King to form the militia and so they had to always be in a state of readiness.  Henry VIII lowered the age of the males required to be trained to use guns. Under his rule, fathers were required to train their sons from age 7 and older in the use of firearms. “Bring them up in shooting!”

In 1688, a medieval “duty” to have and bear arms became an “indubitable right.”  How did this happen?   Dr. Joyce Malcolm, Patrick Henry Professor of Constitutional Law and the Second Amendment at George Mason University School of Law and fellow of the Royal Historical Society, is an expert on this topic. She has been called “the leading historian on the history of English gun rights and English gun control.” Malcolm explains that gun ownership transformed into a “right” during the tumultuous 17th century in England, and for understandable reasons. The transformation arose out of a conflict between King Charles I and Parliament. Eventually, in 1642, civil war broke out and members of Parliament, led by Oliver Cromwell, brought charges against Charles. He was captured, tried for treason, and beheaded. His sons, the future King Charles II and King James II had fled to France at the time.

After Cromwell died and his son took over, rather than stability in England, there was mass chaos. The people, out of sheer desperation, asked Charles II to come back to England, assert his right to the throne, and rule, which he did.  But what did Charles come home to?  He returned to a country that turned on his father; a country that beheaded him. He also returned to a country that was very well-armed. Almost immediately, he sought to disarm the subjects and control the bearing of arms. He instituted serious gun control measures, both on individuals and on manufacturers. Gun manufacturers had to report to the King how many guns they manufactured each week and who purchased them. There were controls on the importing of guns, licenses were required for subjects who needed to move weapons around the countryside, and subjects had to report if they were traveling with a firearm. In the year 1660, King Charles II issued a series of orders to disarm those citizens that he deemed were – or would be – political opponents. One particular act that Parliament passed, in 1662, was especially repugnant. It was the Militia Act of 1662 and it gave militia officers the power to disarm anyone they believed was likely to be an opponent of the Crown.  And at first, the Act was actively enforced.  In 1671, Parliament passed the Game Act, which proved to be the greatest control over ownership of firearms that England ever had. The Game Act listed a whole host of weapons that were prohibited for hunting, and at the head of that list was guns !!

Charles II died and having produced no heirs, he was succeeded by his brother James. King James II would use the Game Act to try to disarm all those subjects who he deemed were not well-enough off. In other words, he tried to limit gun ownership to only those of a certain class of subjects. He sent out mass orders to disarm the citizenry.  According to the record, Dr. Malcolm explains, the orders were apparently not carried out.  But the actions of the King to disarm his subjects certainly arose concern and fear among the people of England.

And so, finally in 1688, the English people had had enough. They, together with a union of Parliamentarians, invited William and Mary, of Orange to take over the throne and depose King James II. Mary was the daughter of the king. The people promised they would oust James and offer no resistance to William and Mary if they agreed to sign a Bill of Rights acknowledging the rights of the people and promised to be held to that document. William and Mary agreed. They sailed from Orange and were met with the support of the citizenry, in what would be known as the “Bloodless Revolution” (or Glorious Revolution). James was forced to flee.  A new Parliament was formed (one not loyal to James, who was still alive) and this Parliament decided that a Bill of Rights was necessary to re-affirm all the rights that had been imperiled by James.  In order to tie the new King and Queen to an obligation to abide by these rights, the same statue that elevated William and Mary to the throne also contained those rights – The Charter of Rights – The Charter of Ancient and Indubitable Rights.”  In fact, this Bill of Rights of 1689 was referred to as “The new Magna Carta.”  The statue created a contractual obligation, one that tied the right of the King and Queen to rule to an obligation to respect the rights contained in the Charter.

One of those rights was the right of British subjects (“who are Protestants”) to have arms for their defense (self-defense) “suitable to their position and allowed by law.”

Arms seizure weighed heavily during the deliberations in Parliament as it drafted the Bill of Rights of 1689. So incensed that the people, in mass, had been targeted for arms confiscation under the Militia Act (and even some members of Parliament had been targeted), that the people and Parliament felt that the “duty” to have and bear arms was actually a “right.” The ability to arm oneself for self-defense was considered a right.

Indeed, by 1688, and enshrined in the Bill of Rights of 1689, the duty to be armed became a right. One of the rights of Englishmen became the right to have arms for self-defense.

Between 1603 and 1776, the rights of Englishmen became the rights of Americans.

When the first three ships arrived in the New World, in what would become the commonwealth of Virginia, the English settlers encountered hostile French and Dutch settlers as well as hostile Indians. Because of this hostile environment, the arms laws were even stricter than the English ones. English colonists were required to have arms on them at all times and they were required to be trained in their use. “Every male inhabitant shall carry a firearm wherever he goes.”  As the colonies were settled, one by one, they established their state militias. They drew from their knowledge of the militia system in England to develop their own military forces. The resulting colonial militia laws required every able-bodied male citizen to participate and to provide his own arms. For example, in the colony of Virginia, in 1623, the Virginia General Assembly commanded, “that men go not to work in the ground without their arms; That no man go or send abroad without a sufficient partie well-armed.” In 1661, its Governor, William Berkeley stated, “All our freemen are bound to be trained every month in their particular counties.”  Virginia followed the British county lieutenant system; each county had a lieutenant, appointed as the county’s chief militia officer.

Yes, it was a “duty” to have and bear arms, in order to serve in the militia and help defend the colony, but apart from this duty, the colonists knew, as loyal British subjects (which they were and which they considered themselves), they also had the right to own them and to bear them.  For confirmation, they only needed to consult the second most popular book of the day (the first being the Bible), Blackstone’s treatise on the English common law, “Commentaries on the Laws of England” (1765).

In Blackstone’s “Commentaries on the Laws of England,” he addressed the right to arms:

“The fifth and last auxiliary right of the subject that I shall at the moment mention, is that of having arms for their defense – suitable to their condition and degree, and as such as are allowed by law. It is indeed a public allowance, of the natural right of resistance and self-preservation, when the sanctions of society and law are found insufficient to restrain violence of oppression.”

Blackstone says clearly that the right is not only for defense and for protection, but it is also to resist tyranny. The main purpose of the right to bear arms is to resist tyranny – in order that the people in the community, together and with their firearms, could overthrow a dictatorship in the last resort, should none of the other checks and balances work.

By the mid 1760’s, tensions were growing increasingly high particularly in the colonies, and in Boston in particular. It wasn’t long before the redcoats arrived, to live among the people of Boston and to make sure that they stayed “in line.” With the Redcoats came acts of criminality – rapes, robberies, murder.  The Boston Gazette published articles warning the colonists that they would soon be disarmed and should they “act out,” they would be taken to England and tried for treason. The colonists began to arm themselves – first to defend themselves against the criminal tendencies of the soldiers and also because it seemed likely that the tensions would escalate into conflict.  They cited the English Bill of Rights, the Militia Acts of the colonies, and even Blackstone’s “Commentaries” for their right to arm themselves.  “It is beyond sophistry to prove (meaning, it is clearly fallacious) that British subjects, to whom the privilege of necessary arms is expressly recognized by the [English] Bill of Rights, and who live in a province were the law requires them to be equipped with arms, are guilty of illegal acts in calling upon one another to be provided with them – as the law directs!”

Citing Blackstone, the colonists understood the reason they were vested with the right to bear arms: “It is a natural right, which the people have reserved to themselves, confirmed by the [English] Bill of Rights, to keep arms for their own defense; and as a Blackstone observer, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.”

Tensions soon escalated and a series of events followed.  Under the Intolerable Acts, the colonial legislature in Boston was abolished and King George III sent General Thomas Gage, a proven military commander at the time, there to serve as the Royal Governor. British spies tipped off General Gage that the colonists were stockpiling ammunition and artillery at nearby Concord. On the night of April 18, 1775, Gage sent a column of soldiers to Concord to destroy the supplies. Their trip led them through Lexington, where they encountered a small group of colonial militiamen. A shot went off (no one knows how it happened), but the response was immediate. Shots rang out and armed conflict between England and Massachusetts had begun. The revolution had begun. British forces drew first blood.

Despite the skirmish, the troops continued to Concord where they found the ammunition and where they also found several thousand angry townsfolk. The troops proceeded to burn the stockpile but from the vantage point of the townsfolk, it looked like they were attempting to burn down the town. And so, the townsfolk opened fire on the troops, forcing them to retreat. As they were retreating the 15 miles or so back to Boston, more and more members of the militia turned out to fire upon them. The British soldiers suffered over 300 casualties. Not only did they draw first blood, but they were defeated.

The fighting, however, was not to be contained in Massachusetts. In Williamsburg, Virginia, the colonists built an armory to store their gunpowder. Late during the night of April 20, 1775, royal governor Dunmore ordered British sailors to raid the armory and to take the gunpowder back aboard their ships. Dunmore allowed this even as statesmen such as Patrick Henry and William Henry Lee and other Virginians were already pushing to revive the state militia – to put into execution the militia law that was passed in the year 1738 – and to put them in the posture of defense (that is, to prepare them to defend the State against the British).

Just a month prior to that event, there was a general alarm that was spreading among the colonies – fueled, no doubt, by men like Patrick Henry and Thomas Paine – that the British were removing gunpowder from the public stock in order to render the colonists unable to resist the Crown. Clearly, as was done in Boston, England was intent on disarming them – just as King Charles II had done to his subjects approximately 100 years ago in the mother country. The King (George III) was not depriving them of their right of representation in Parliament this time (no taxation without representation); now he was stripping them of their right to bear arms for defense.

Only a handful of statesmen recognized what was happening and what its significance was. Patrick Henry was one. It was this general alarm, this general fear that England was coming to disarm the colonists, that prompted him, on the night of March 23 at St. John’s Church to propose three resolutions to raise, equip and prepare the militia for conflict.

His resolutions read simply:

Resolved, that a well-regulated militia composed of gentlemen and yeomen is the natural strength and only security of a free government; that such a militia in this colony would forever render it unnecessary for the mother country to keep among us, for the purpose of our defense, any standing army of mercenary forces, always subversive of the quiet, and dangerous to the liberties of the people, and would obviate the pretext of taxing us for their support.

That the establishment of such a militia is at this time peculiarly necessary, by the state of our laws for the protection and defence of the country some of which have already expired, and others will shortly do so; and that the known remissness of government in calling us together in a legislative capacity renders it too insecure in this time of danger and distress, to rely that opportunity will be given of renewing them in General Assembly or making any provision to secure our inestimable rights and liberties from those farther violations with which they are threatened.

Resolved therefore, that this colony be immediately put into a posture of defence: and that Patrick Henry, Richard Henry Lee, Robert Carter Nicholas, Benjamin Harrison, Lemuel Riddick, George Washington, Adam Stephen, Andrew Lewis, William Christian, Edmund Pendleton, Thomas Jefferson and Isaac Zane, Esquires, be a committee to prepare a plan for the embodying arming and disciplining such a number of men as may be sufficient for that purpose.

Perhaps the most rousing speech delivered in colonial America was by Patrick Henry and it was in support of these resolutions:  [As you read the speech, consider the circumstances to which he is speaking, and keeping in mind that men like Henry, Thomas Jefferson, Lee, Washington were keenly aware of the history of the people England, the continued struggle to assert their rights, to seek assurances, to have them violated, and only to have to try to re-assert them again, and again…..]

“The question before the House is one of awful moment to this country. For my own part, I consider it as nothing less than a question of freedom or slavery; and in proportion to the magnitude of the subject ought to be the freedom of the debate. It is only in this way that we can hope to arrive at truth, and fulfil the great responsibility which we hold to God and our country. Should I keep back my opinions at such a time, through fear of giving offence, I should consider myself as guilty of treason towards my country, and of an act of disloyalty toward the majesty of heaven, which I revere above all earthly kings.

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

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

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable and let it come! I repeat it, sir, let it come.

Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!”

With the raid on the armory at Williamsburg, thus confirming Patrick Henry’s worst fears, the most powerful colony in the South (Virginia) was driven into an alliance with the most powerful colony in the North (Massachusetts).  The Boston Revolution soon became an American Revolution.

Thus, the American revolution started over our RIGHT to keep and bear arms. Tensions between the colonies and Great Britain may have started over the right not to be taxed without representation in Parliament (the body from which such taxing measures arose), but the actual revolution itself erupted over the actions of the Crown to disarm the people.

In 1775, the colonies called up the First Continental Congress to seek a peaceful resolution of the growing tensions. That Congress sent a series of petitions to the King to implore him to intercede on their behalf and recognize that their rights were being violated. He laughed at the petitions and likened the colonist to petulant little children who liked to throw fits. [Patrick Henry referenced this effort in his fiery speech at St. John’s: “We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne.”]  In 1776, the colonies called up the Second Continental Congress to manage the war effort against the British. General George Washington was put over the Continental Army and on July 4, 1776, the Congress signed the Declaration of Independence, declaring the colonies to be independent from Great Britain and articulating to a “candid world” the list of grievances against Great Britain which would support and justify its decision to separate.

Once the colonies proclaimed their independence, the strongest sign they could send to demonstrate that independence was to assume statehood and adopt state constitutions (the signs of sovereignty).  And so, each colony organized itself as a state and drafted and adopted a constitution. Most also adopted a Bill of Rights, in one form or another.

Different states provided different models for the right to bear arms. In 1776, George Mason went to work on the Virginia Declaration of Rights. He introduced the enumerated rights with a statement of nature’s law and a statement of the relationship of individuals and government, in general.  He wrote:

THAT all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.

That all power is vested in, and consequently derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.

That government is, or ought to be, instituted for the common benefit, protection, and security, of the people, nation, or community; of all the various modes and forms of government that is best, which is capable of producing the greatest degree of happiness and safety, and is most effectually secured against the danger of mal-administration; and that whenever any government shall be found inadequate or contrary to these purposes, a majority of the community hath an indubitable, unalienable, and indefeasible right, to reform, alter, or abolish it, in such manner as shall be judged most conducive to the public weal.

Then he addressed the right to arms:

That a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state; that standing armies, in time of peace, should be avoided, as dangerous to liberty….

The Virginia Declaration of Rights was adopted June 12, 1776.

Thomas Jefferson submitted a draft of a Bill of Rights to be taken up at the upcoming convention (to draft a constitution for the first government of the “united” states, which as we know, was the Articles of Confederation). He wrote: “No free man shall be debarred the use of arms.”

The Pennsylvania Bill of Rights, adopted in September 1776, recognized a right to bear arms for both self-defense and in defense of the State.

  1. That all men are born equally free, and independent; and have certain, natural, inherent, and inalienable rights; amongst which are; the enjoying and defending of life and liberty; acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety.

XIII. That the people have a right to bear arms for the defense of themselves and the state.

In March 1780, Massachusetts adopted its Constitution and Bill of Rights, written by John Adams. It acknowledged a right to keep and bear arms, but added that it was for “the common good.”  The MA Bill of Rights read, in part:

The end of the institution, maintenance and administration of government, is to secure the existence of the body-politic; to protect it; and to furnish the individuals who compose it, with the power of enjoying, in safety and tranquility, their natural rights, and the blessings of life: And whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body-politic is formed by a voluntary association of individuals: It is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good.

Part the First. A Declaration of the Rights of the Inhabitants of the Commonwealth of Massachusetts.

Art. I.  All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.

XVII.  The people have a right to keep and to bear arms for the common defense.

Looking at these three Constitutions and Bills of Right, we can see that there were at least three (3) colonial models to address the right to arms.

Again, to compare and contrast them concisely, addressing them in the order they were adopted:

(1)  The Virginia model emphasizes the militia.  “A well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state…”

(2)  The Pennsylvania model doesn’t mention militia; it emphases self-defense and defense of the State.  “The people have a right to bear arms for the defense of themselves and the State.”

(3)  The Massachusetts model took the Pennsylvania approach, but added a limitation in the form of the clause “for the common defense, and added the people also have a right to “keep” arms.  “The people have a right to keep and bear arms for the common defense.”

These models would become important when our new nation would look to draft a national Bill of Rights.

And that time came in 1787, when after certain leading state leaders – namely, James Madison and Alexander Hamilton – found the Articles of Confederation unworkable for the growing union and took the initiative to call up a new constitutional convention. The Convention was held in Philadelphia from May to September 1787 and rather than heed the constitutional call of the Convention to “amend” the Articles of Confederation, a brand new plan of government was pursued and a brand new Constitution was drafted. Although the delegates from 12 states labored through the hot summer months of that year, engaged in countless debates, and pursued and negotiated through many contentious issues, in the end the final draft, the US Constitution, was not acceptable to many of the delegates. Seven delegates to the Convention walked out and refused to sign it on the last day – September 20, including Virginia’s George Mason. These delegates either complained that it conferred too much power to the federal government (mainly, an unlimited power to tax and spent, and to raise an army) or that it lacked a Bill of Rights, or both. Many of those who did not sign it were anti-Federalists, those who feared a weakening of the States at the hands of the federal government.

Nevertheless, once the Constitution was signed, it went to the States, which, acting in their own conventions, would take up the issue of ratification. If they ratified the Constitution, they would become part of the Union of States and if they didn’t, they would not.  Delaware ratified first, by a unanimous vote. Then came Pennsylvania, New Jersey (unanimous vote), Georgia (unanimous vote), and Connecticut (overwhelmingly). In January 1788, Massachusetts called its convention. Samuel Adams, who, although he did not attend the Philadelphia Convention, attended the ratifying convention. Assessing the Constitution, he addressed the Convention:

“And that the said Constitution be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience, or to prevent the people of the United States, who are peaceful citizens, from keeping their own arms, or to raise standing armies, unless necessary for the defense of the United States or of one or more of them, or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of grievances, or to subject the people to unreasonable searches and seizures of their persons, papers, or possessions.”

Samuel Adams is the strongest unsung hero of the Second Amendment. His writings on the right to have and bear arms goes back many years, even before his days in the Sons of Liberty.

Next, Maryland ratified the Constitution (overwhelmingly), then South Carolina, and finally New Hampshire (narrowly).  When New Hampshire ratified in June 1788, it became the ninth state to do so.  According to Article VII of the Constitution, the Constitution would go into effect when 9 states ratified. And so, the new Union was born.

But this new Union was still terribly fractured.  Virginia, New York, North Carolina, and Rhode Island still hadn’t decided. Actually, North Carolina met in Convention on August 2, 1788 but quickly rejected the Constitution (193-75). It agreed to meet again; it was waiting to see what the other States did regarding a Bill of Rights.

When New Hampshire ratified the Constitution on June 21, 1788, the Virginia Convention was actually still going on. It was contentious. Virginia, New York, and North Carolina were not expected to ratify, and the issue was over a Bill of Rights, which James Madison had argued in Philadelphia was not necessary. George Mason and Edmund Pendleton, two of the delegates from Virginia at the Philadelphia Convention who would not sign the Constitution, were now delegates at the Virginia Ratifying Convention and were committed to preventing the document from being ratified. These men, and many others, were already calling for another Constitutional Convention – particularly George Mason, and he had the potential power to move the plan forward. Mason and Pendleton were joined in sentiment at the Convention by Patrick Henry, who was highly skeptical of the Constitution and was confident it would lead to the consolidation of the states under the federal government.

At issue at the Virginia Ratifying Convention was essentially the concerns of the anti-Federalists, which was that the Constitution lacked a Bill of Rights (and that the government tended to be overly-ambitious and powerful).  The Virginia view, in general, was that a Bill of Rights is the very least that a government owes to its people. Mason argued for a Bill of Rights, and of course, any Bill of Rights worth its salt would have to include a right to bear arms. Patrick Henry told the Convention: “The great object is that every man be armed!”

In the end, a compromise was reached.  James Madison promised that if the Virginia delegation would ratify the Constitution in the Convention he would recommend to the first US Congress that a Bill of Rights be added, as a series of amendments. Madison was known to be a trustworthy man and so, the Constitution was narrowly ratified on June 25 (89-79). However, the Virginia delegation did not merely ratify; in anticipation of a national Bill of Rights, it also proposed and drafted a series of amendments for consideration.

“Resolved, that, previous to the ratification of the new Constitution of government recommended by the late federal Convention, a declaration of rights, asserting, and securing from encroachment, the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most exceptionable parts of the said Constitution of government, ought to be referred by this Convention to the other states in the American confederacy for their consideration”

When the Virginia delegation went back to write the amendments they would recommend, they looked to the Massachusetts and the Pennsylvania models, in addition to their own model.  The language that they came up with is as follows: “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people, trained to arms, is the proper, natural, and safe defense of a free state.”

The right to bear arms for defense of oneself and the State comes from the Pennsylvania model. The right to keep and bear arms comes from the Massachusetts model.  By removing express limitations (such as “for the common good” or other qualifiers that might be later construed to limit the right (“for defense of themselves and the State”), the first part of the proposed amendment construes the right to arms in its broadest terms. The second part of the proposed amendment comes from the Virginia model and addresses the militia. The Virginia delegation already believed it was expressed in its broadest terms.

So, the Second Amendment is actually two separate thoughts. The intentional, conscious effort was to express the right to arms in the broadest terms possible, to be understood in its broadest sense.

The New York Convention followed. It wrapped up on July 26, one month after the Virginia Convention. It was another contentious convention. As in Virginia, it was a battle between anti-Federalists and Federalists.  On the anti-Federalist side, the words of the Federal Farmer (possibly Richard Henry Lee) were invoked: “To preserve liberty, it is essential that the whole body of the people always possess arms and be taught how to use them.”  Daniel Webster, for the Federalists, answered: “Before a standing army can rule, the people must be disarmed, as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword because the whole body of the people are armed and constitute a force superior to any band of regular troops that can be raised in the United States.”  [to paraphrase: Because of the fact that the people are armed and therefore superior to any troops raised by the United States, they can prevent the execution of any law they perceive not to be just and constitutional].

The debates in New York led to the most famous work on the meaning and intent of the Constitution – the Federalist Papers.  In fact, Madison addresses the militia (and a standing army) in Federalist No. 46.  He wrote: “The people will never have to worry about a standing army because of the state militias.”

The New York Convention very narrowly ratified the Constitution (30-27). But as Virginia did, it called for a Bill of Rights and provided several for consideration.  North Carolina went on to ratify, but only because a Bill of Rights has actually been adopted!  And then Rhode Island ratified after that.

The Constitution was adopted on June 12, 1788 when the ninth state, New Hampshire ratified it. Fall 1788 saw the first national elections and as expected, James Madison was elected to the House of Representatives. In the months after the election and before taking his seat in Congress, which was in New York City at the time), Madison sat at his home in Montpelier and drafted a Bill of Rights. He drew from the proposed amendments that were submitted by the states.  He planned to bring them with him to the first session of Congress and present them, thus making good on his promise. He drafted twelve amendments.

On June 8, 1789, Madison stood up in the House of Representatives and proposed what would become the federal Bill of Rights. His proposed Second Amendment read: “The right of the people to keep and bear arms shall not be infringed; a well-armed and well-regulated militia being the best security of a free country; but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.”

The first Congress amended Madison’s proposal; it removed the language concerning the conscientious-objector.  Then a committee was formed – a drafting committee – consisting of Madison himself and Roger Sherman, an anti-Federalist, to provide the final draft. The final draft of the Second Amendment was a pared-down version which read: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

In the debates in the Senate on the proposed Bill of Rights, a motion was made to insert into the Second Amendment the words “for the common defense” next to the words “bear arms.”  It was rejected !!

On September 25, 1789, Congress approved the amendments (all 12 of them) and then they were sent to the states.

James Madison’s friend, Tench Coxe, of Philadelphia, provided the most comprehensive analysis of the Second Amendment in a publication under the pen name “The Pennsylvanian.” It was printed in all the states.  He wrote: “As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which might be occasionally called to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article [the Second Amendment] in their right to keep and bear their private arms.”

The Bill of Rights was ratified on December 15, 1791.

All the leading commentators of the day saw the right to bear arms as an individual right, including  US Supreme Court Justice Joseph Story (1811-1845), who was the leading constitutional expert and commentator during the early-mid 20th century, Michigan Supreme Court Justice Thomas Cooley (1864-1885), the leading constitutional commentator at the end of the 19th century, and Sir William Blackstone, the leading English commentator who was very influential on our founders and framers.

St. George Tucker, who first gained fame as a Revolutionary War hero from Virginia, became famous again for writing a very famous treatise. In 1803, he wrote a 5-volume set, being characterized as the American version of Blackstone’s “Commentaries.”  It was titled: Blackstone’s Commentaries, with Notes of Reference to the Constitution & Laws of the Federal Government of the United States & of the Commonwealth of Virginia.  Tucker was seen as the best source and authority on the original intent and early interpretation of the US Constitution until about 1825, and his work has been cited by the US Supreme Court over forty times. For those looking to understand the meaning and intent of the Constitution at the time it was adopted and as it served our first sessions of government, it would be interesting to read Tucker’s volumes.

Tucker wrote about Blackstone’s exposition on the right to arms as it existed in the English law and explained how it applied to the United States. Tucker wrote: “’The right of the people to keep and bear arms shall not be infringed.’ This amendment is without any qualification as to their condition or degree, as in the case of the British government.”

He went on to elaborate even further:  Explaining the scope of the amendment, he wrote: “This [the Second Amendment] may be considered the true palladium of liberty…  The right of the self-defense is the first law of nature; in most governments, it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any color or pretext whatsoever, prohibited, then liberty, if not already annihilated, is on the brink of destruction.”

In 1825, Tucker’s treatise was replaced by the text written by William Rawle – A View of the Constitution of the United States of America. Regarding the Second Amendment, Rawle wrote in his book: “No clause in the Constitution could by any rule of construction be conceived to give to Congress a power to disarm the people..”  [Rawle was part of the convention in Pennsylvania that ratified the US Bill of Rights; he was offered the position of first US Attorney General but turned it down].

The most influential constitutional commentator of the late 19th century and early 20th century was Thomas Cooley. He was considered the greatest legal mind of the time. He wrote the text: The General Principles of Constitutional Law in the United States of America.  In his text, he explains exactly what the right is that is protected in the Second Amendment: “It may be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia, but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrollment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the actions or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is that the people, from whom the militia must be taken, shall have the right to keep and bear arms, and that they need no permission or regulation of law for the purpose…”

Professor Randy Burnett of Boston University’s School of Law sums up the history of the Second Amendment this way: “What is shown by the historical record is that we have statements made before the second amendment was proposed, while the second amendment was being considered, and immediately after the second amendment was ratified, each of which reflects the understanding of the speaker that the amendment protects an individual right to have and bear arms.  What we don’t have – what we don’t find in the historical record is a single example of any contemporary at the time of the second amendment referring to it as anything other than an individual right.”

Professor Eugene Volokh, of the UCLA School of Law, comments: “Throughout the 1700’s, throughout the 1800’s, and up until the early 1900’s, the right to bear arms was universally seen as an individual right. There was virtually no authority for the collective rights/ states’ right point of view.” (States right to call a militia, that is).

But yet, in the late 20th century and now in the 21st century, somehow this history means nothing?

“The Second Amendment is a right held by States and does not protect the possession of a weapon by a private citizen.”  — The Court of Appeals for the 6th Circuit (2000)

“The right to keep and bear arms is meant solely to protect the right of the States to keep and maintain an armed militia.”   — The Court of Appeals for the 9th Circuit (1996)

The conservatives on the bench in the Heller case and then in the McDonald case got it right. They chose to be intellectually honest.

References:

DVD:  “In Search of the Second Amendment (A Documentary),” produced and directed by David T. Hardy (2006).  Second Amendment Films LLC

United States v. Miller, 307 U.S. 174 (1939)

District of Columbia v. Heller, 554 U.S. 570 (2008)

McDonald v. Chicago, 561 US 742 (2010)

Don B. Kates, Jr.  “Handgun Prohibition and the Original Meaning of the Second Amendment,” 82 Michigan Law Review (MICH. L. REV.) 204-273 (1983).    Referenced:  http://www.constitution.org/2ll/2ndschol/57mich.pdf

Resolutions of the Provincial Congress of Virginia (Patrick Henry) regarding the militia, March 23, 1775 – http://avalon.law.yale.edu/18th_century/res_cong_va_1775.asp

George Mason, the Virginia Declaration of Rights.  Referenced at:  http://www.history.org/almanack/life/politics/varights.cfm

Virginia’s Ratification of the Constitution, Elliott’s Debates (June 25, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june25/

The proposed amendments to the Bill of Rights submitted by the State of Virginia (June 27, 1788) –  http://teachingamericanhistory.org/ratification/elliot/vol3/june27/

Teaching American History (an Intereactive Resource) –  http://teachingamericanhistory.org/ratification/overview/

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A Government That Wants to Control Us, Not Represent Us

TYRANNY   by Diane Rufino

George S. Liberty recently wrote a rant about government on his blogsite after he watched a news clip about Jonathan Gruber, the controversial architect of Obamacare.  His theme was how audacious and contemptible the government has become regarding the American people.  Clearly, the government has little respect for the people. It feigns loyalty to them only when it comes to election time or when it serves its purposes in enlarging the federal institution. As George wrote: “It’s clear that government feels it must oversee us rather than represent us. It knows best.”

The federal government is steadily becoming more antagonistic and repugnant to the People.  Its interests are not the interests of the American people. In fact, too many times, its interests are exactly opposed to their interests.  Look at the immigration issue, look at the erosion of race relations at the direct hands of the current administration, and look at the soft stance the current administration is taking with respect with the greatest evil the world has encountered since Nazi Germany and its designs for genocide of the Jews and world domination.  When has America ever stood by and watched its citizens being brutally beheaded?  The Patient Protection & Affordable Care Act, for example, which violates so many precious American liberties that this article dares not even go into them, was passed with a level of deception and duplicity that hasn’t been seen in this country since the days of the Civil War and Reconstruction. As if the backdoor deals, threats, and political promises make by the President weren’t enough, as if his promise to the American people, through an interview with George Stephanopolous, that the mandate was not a tax only to have the mandate officially classified as a tax (and supported and justified by the government’s taxing power) wasn’t enough, and as if the promises of lower healthcare costs (and retention of one’s doctor) only to see costs skyrocket, doctors lost, and businesses suffer wasn’t enough, we now learn that the architect of the healthcare bill “counted on the stupidity of the American people” in getting the bill passed in the court of public opinion.  He said that if more people knew what was written in the bill, it would have never passed. “This bill was written in a tortured way to make sure CBO did not score the mandate as taxes. If CBO scored the mandate as taxes, the bill dies. Okay, so it’s written to do that.  In terms of risk rated subsidies, if you had a law which said that healthy people are going to pay in – you made explicit healthy people pay in and sick people get money, it would not have passed… Lack of transparency is a huge political advantage. And basically, call it the stupidity of the American voter or whatever, but basically that was really really critical for the thing to pass… Look, I wish we could have made it all transparent, but I’d rather have this law than not.”

This government – OUR government – a government supposedly of the people, by the people and for the people –  purposely set out to deceive We the People.  Wow.  I mean, WOW!  Can you believe the audacity of our government?  King George III of England seemed audacious at one time.  He and the British Parliament took the liberty of taxing the American colonies to cover the costs incurred by the British in fighting the French in the French & Indian War (to clear claim to the New World territories) and the costs to protect them.  Yes, the tax was ultimately being used to serve and benefit the colonies, but it was the fact that the King didn’t first provide them with a seat in Parliament to give them representation with respect to legislation that affected them which set them off.  This failure of the King to safeguard their rights as Englishmen (as laid out in the English Bill of Rights of 1689, among other charters) is what gave birth to the Sons of Liberty, led to the Boston Tea Party, the shots at Concord & Lexington, the Declaration of Independence, and ultimately to our secession from Great Britain.  The lack of transparency, the duplicity, the contempt, etc…..  King Obama and his Congress of rats and weasels all of a sudden don’t seem much different from King George.

As I hear news story after news story showing just what a leviathan that our government has become – in both size and attitude –  I can’t help but reflect upon the genius of our Founding Fathers.  Thomas Jefferson repeatedly explained how government would work best. In 1816, he wrote to his friend Joseph Cabell: “”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 every one 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.”  The federal government was never intended to have such concentrated power and authority over the states and over the lives and property of the people. Whatever happened to these documents: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. –That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…..”     And “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 highly intuitive and intellectual geniuses that debated and drafted our Constitution knew very well what could happen if the populace became complacent and tacitly surrendered their freedom to the designs of government. Thomas Jefferson and others warned that government would tend to grow itself and put its own interests above those of the people.  The delegates to the Philadelphia Convention thought they addressed this problem by creating separate legislative, executive, and judicial branches and by building into government various levels of checks and balances.  Madison’s essays – Federalist No 47 and No. 51 – addressed these important design features.  Aside from the separation of powers and the systems of checks and balances, our Founders believed the two most powerful checks on government would be the States (federalism; Tenth Amendment) and the People themselves (ever vigilante of their liberties).

The question is this: Once government becomes self-serving rather than freedom-serving, are we stuck with it?  The answer is no.  Lucky for us, the sheer brilliance of our Founders can be seen in the plain words of our country’s charter of freedom – the Declaration of Independence:

“…….That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

But the obvious follow-up question is this:  At what point do we “alter or abolish” our government?  Jefferson addresses that question in that second paragraph:

“…… Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shown, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.“

At this point, so many of our precious liberties – certainly our rights to property and now our rights to make basic choices regarding our lives, our associations, our conscience, and our health – are not secured by our government. In fact, government is assaulting and eroding them. Our right to bear arms, the one right that helps us secure all others, has become ever so tenuous.  Is now the time to “alter or abolish” our government?

Judging by the sheer volume of Americans that the government has managed to shackle to its existence and its programs, individual liberty may no longer be that “precious gem” (as James Madison once called it at the Virginia Ratifying Convention) that should be placed above all else. There was a time when it was.

And government knows this.  Perhaps that was the very intent of government when it set on its path to become the great leviathan that it currently is. Maybe it knew that the people had to be coerced into surrendering their liberties – by promising them stuff and taking care of them from cradle to grave and by convincing them that the promise of guaranteed freedom isn’t the same as a guaranteed paycheck or guaranteed housing or guaranteed healthcare.

Maybe those government officials who have sought over the years to use the full power of the government to divest it of its constitutional moorings studied Federalist No 51.  In that essay, James Madison wrote: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

People can’t control government like they are supposed to if government controls them.  And make no mistake about it…. Government today DOES control the American people.

Combine the complacency that people have on account of the emphasis that the leviathan places on social and welfare programs with the “experience that hath been shown” of human nature to be “disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”  This looks like a perfect recipe for government longevity and acceptance of tyranny.  And so, in one of his arguments, George S. Liberty writes: “The government will continue to take, and take, and take. And it will push, push, and push –  all in the design to sustain itself at the expense of the populacebecause it knows that people are more inclined to suffer the consequences than to right themselves. The government banks on the fact that we are timid.”

It cannot be repeated too often that the Constitution is a limitation on the government, not on private individuals — that it does not prescribe the conduct of private individuals, only the conduct of the government — that it is not a charter for government power, but a charter of the citizens’ protection against the government.

In other words, in this country, it is freedom that is enlarged.….   NOT the government.  Freedom must endure at all costs; NOT government.  Government must not be perpetual, if it be at the expense of individual freedom.  But individual freedom MUST be perpetual, even and perhaps especially at the expense of government.

Thomas Jefferson once wrote: “Unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted to their own oppression, and to the perpetuation of wealth and power in the individuals and their families selected for the trust. Whether our Constitution has hit on the exact degree of control necessary, is yet under experiment.” (in a letter to M. van der Kemp, 1812)  Maybe our future generations of Americans are better served in our public schools by spending a month every year learning what our Founding Fathers had to say about civic duty instead of constantly re-learning about slavery and Jim Crow (the wounds that no one seems to want to let heal).

So, where are today’s Thomas Paine, Patrick Henry, Thomas Jefferson, James Madison, John Adams, Sam Adams, and George Washington?

If ever we needed these men – or their spirits – it is now.

Keep the Federal Government in Check with NULLIFICATION – Not Liberty Amendments!

Nullification - Mark Levin v. Thomas Jefferson

by Diane Rufino, October 10, 2013

Mark Levin, who wrote an excellent book “The Liberty Amendments” to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers “kooks.”  His solution is to keep the federal government in check by a series of constitutional amendments.

My question to Mr. Levin is this:  Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to “alter or abolish” government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean?  It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that’s why those amendments are included… They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It’s time those who have had their rights trampled upon step up and say NO MORE.  Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence.  As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter.  The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

The Rightful Remedy is Nullification and NOT constitutional amendments. Don’t get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy.  But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People.  Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to “Please, please, please try to respect the Constitution.”

It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core.  John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…  It is stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves.”  Thomas Paine, in his Rights of Man, wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  And in 1782, in his Notes on Virginia, Thomas Jefferson explained: “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.”

I believe Mark Levin is dead wrong in attacking the Nullification movement.  I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution – when the Constitution was never legally amended to get us in the predicament that we are in – then he has a flawed understanding of our founding principles and the American founding philosophy of government.

He presupposes that only the People and the States need to abide by Constitutional limits.  It doesn’t matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms.  Mr. Levin is so hung up on “what the People and the States can constitutionally do” to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote “The Liberty Amendments,” the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual.  A government that is supposed to serve the People (“that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”) should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from “altering” their government so that it isn’t “becoming destructive of its ends.” Nullification, on the other hand, checks the government at every instance.  It puts sovereign power in the hands of those who were the intended depositories – the People.

Nullification is the magic bullet.  As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

Opponents of Nullification want to take this remedy away.  They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on.  First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause.  They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement “badge” that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don’t get the urge to second-guess the actions and intentions of the federal government.

Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld.  Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States.  Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws.  Opponents of nullification claim this is the constitutional.

They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim.  The two principles actually work hand-in-hand.  The Supremacy Clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn’t say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority.  And that’s where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People.  A free people should never have to suffer the enforcement of unconstitutional laws on them.

Unfortunately, the government doesn’t want to recognize the inherent limitation in the Supremacy Clause – that only those laws made “in pursuance” to the Constitution are supreme.  It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause.  People want Liberty.  Governments want concentrated power.  These are competing goals.  Our Founders understood that.  And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government.  “Reserved” powers meant exactly that.  Those powers not expressly delegated to the federal government are reserved by the People and the States.

In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn’t have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history – the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion.  That opinion held: “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

Chief Justice Warren continued: “It is necessary only to recall some basic constitutional propositions which are settled doctrine.  Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,  that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 “to support this Constitution…..  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.”

Justice Frankfurter, concurring in the opinion, wrote separately: “The States must yield to an authority that is paramount to the State.”

Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based.  Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

The Supreme Court likes to cite its early decision in Marbury v Madison (1803).  Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution.  And it’s no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government.  Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers.  Nullification doesn’t ask us what the Supreme Court says on a particular matter.  Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority.  Nullification is an implied principle.  It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples’ rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

As we all know, We the People are vested, under Natural Law and God’s Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the “consent of the governed,” by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights).  The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to “alter or abolish” their government when it becomes destructive of its ends.  As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles.  The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain “declaratory and limiting phrases” – which would be our Bill of Rights.  Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively.  This is precisely the type of government referred to and envisioned in our Declaration…  one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it.  But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power.  That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power.  Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects.  In particular, the decision emphasized and reinforced two key constitutional themes:

(1)  Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified).  Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don’t magically change definition as the times change and the Constitution doesn’t evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

(2)  Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party.  Anytime a justice veers from his oath and doesn’t interpret the Constitution according to strict construction and original intent he commits TREASON.  “The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.”

On the other hand, Jefferson disagreed with Marshall’s reasoning with respect to judicial review, the doctrine the case is known for establishing.  In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. “Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.  If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Marshall continued: “An act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written Constitution.”  In other words, when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid.  Jefferson criticized the decision by arguing that “the Constitution has erected no such tribunal” with such power.  He argued that “to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy.”

It’s worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of “judicial review”).  There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

As one lawyer and opponent of Nullification writes: “Anyone who believes that Nullification is legitimate either 1) Hasn’t read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside.”  Obviously this lawyer hasn’t read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself.  Both warned about putting too much power in the federal judiciary.

Thomas Jefferson wrote to William C Jarvis in 1820: “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.”   

Jefferson wrote to Charles Hammond in 1821: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, 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 center 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.”

And Abraham Lincoln, in criticizing the Dred Scott decision, said: “If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

I have read what our Founders wrote about Nullification.  I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based.  I believe it to be as foundational a principle as limited government and “government of the People.”  I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders – to honor the spirit of our American Revolution and to secure individual liberty.  I always question the intentions and judgment of federal court judges.

Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court’s decisions: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”  And we should take his advice and disregard the Court’s opinion in Cooper – and in Ableman too!

Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

      “A decision by the Supreme Court does not establish a ‘supreme Law of the Land’ that is binding on all persons and parts of government, henceforth and forevermore.  Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary.  But there is a necessary distinction between the Constitution and constitutional law.  The two are not synonymous. The Constitution is a document of our most fundamental law.  It begins ‘We the People of the United States, in Order to form a more perfect Union…’ and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed – the fundamental requirement of any legitimate government – is transformed into a government complete with ‘the powers to act and a structure designed to make it act wisely or responsibly.’ Among its various ‘internal contrivances’ (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, ‘the supreme Law of the Land.’

      Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

      The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution – the executive and legislative no less than the judicial – has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.  For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

     But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

     Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story.  In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than ‘the supreme law of the land.’ Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is ‘what the judges say it is.’ The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

     Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President’s to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee – which, by the way, passed his state’s Senate by a vote of 39 to 9 – would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood – that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land – just like the Constitution.  He was faulted, in other words, for failing to agree with an idea that would put the Court’s constitutional interpretations in the unique position of meaning the same as the Constitution itself.

     My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, ‘that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ This was the reason, in Marshall’s view, that a ‘written Constitution is one of the greatest improvements on political institutions.’

     Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, ‘each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’ And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is ‘our peculiar security.’

     Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, ‘is to submit to government by judiciary.’”

It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

Here is my biggest problem with Mr. Levin’s promotion of his “Liberty Amendments” – aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do.  Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process….. Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification.  Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government.  When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table.  In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, “those of us with the authority to say no to the federal government executing that authority.”  As every supporter of Nullification knows, the individual states pre-existed the federal government.  While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand).  As Maharrey explains: “The states created the federal government and enumerated power to it.”  In his writings and when he presents, he is quick to cite Madison’s famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

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.”

Nullification - Michael Maharrey 2013

Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution.  Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government.  Government is a “creation” of the People and not its ruler.

If our Founding Fathers and founding revolutionaries had taken Mark Levin’s approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention – to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government – and hence the delegates were without proper authority to do what they did).

Thomas Jefferson wrote: “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.”   [Kentucky Resolutions of 1799]

James Madison, in his Notes on Nullification (1834), explained: “…when powers are assumed which have not been delegated, a nullification of the act“ is “the natural right, which all admit to be a remedy against insupportable oppression…”

In the Virginia Resolutions of 1798, Madison wrote: “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…”

At North Carolina’s ratifying convention, James Iredell told the delegates that when ‘Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.’  In December 1787, Roger Sherman of Connecticut observed that an ‘excellency of the constitution’ was that ‘when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.’”

I’ll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

Constitutional attorney, Publius Huldah, recently wrote: “Resistance to tyranny is a natural right – and it is a duty.”   I’ll support Ms. Huldah’s position anyday over those attorneys who oppose Nullification.  Ms. Huldah sides with the People and their Natural Rights.  Those other attorneys side with a centralized, all-powerful and all-knowing government – the very thing we fought a Revolution to rid ourselves of.

In the United States, natural rights are protected by government and not violated by it.  At least that was the American ideal.

Nullification is the Rightful Remedy when you understand the simple truth – that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves.  The federal government is not just stepping on the States’ rights, but it is a usurpation of INDIVIDUAL liberty.  Nullification is our immediate remedy to re-assert and reclaim those rights.  Read the Declaration of Independence again.  All government power comes from the individual.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf.   They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose.  Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be “worked upon by the temper of the times.”  All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

Again, as Thomas Paine wrote in his Rights of Man (1791): “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation.”  For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War.  Washington wanted his men to understand full well what they were fighting for in America’s quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. “

That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government…”   The federal government has no right or power to interfere with the right of the People to do so.  Similarly, it has no right to take away the remedy of Nullifcation.

Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: “How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?” As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express “further limitation” on the federal government. In other words, the federal government would be limited by the recognition and assertion of States’ Rights and States’ powers.  The preamble to the Bill of Rights states clearly that “a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added…”  In other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States’ rights and People’s rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can’t limit the Bill of Rights.  After all, the Bill of Rights is also a limit on the federal courts !!

In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin’s Article V Convention will offer any real relief.  It is very unlikely that our constitutional republic can be properly restored under that scenario – at least not in the near future. The American people are growing too restless and frustrated to wait.  In his article about a Nullification event in Wisconsin, Christian Gomez wrote: “As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: ‘All it takes for evil to succeed is for a few good men to do nothing,’ Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting.”

 

References:

Thomas Woods, “Is Nullification Unconstitutional?,” February 5, 2013.  Referenced at:  http://www.tomwoods.com/blog/is-nullification-unconstitutional/

Christian Gomez, “’Restoring the Republic’ Event in Wisconsin Addresses Nullification,” The New American, September 25, 2013.  Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification,” Freedom Outpost, September 14, 2013.  Referenced at:  http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

Cooper v. Aaron, 358 U.S. 1 (1958)

Ableman v. Booth, 62 U.S. 506 (1859)

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

Edwin Meese III, “The Law of the Constitution.”  A Speech delivered to Tulane University on October 21, 1986.  Referenced at:  http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

Federalist No 45.  http://avalon.law.yale.edu/18th_century/fed45.asp

James Madison, Report of 1800.  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

 

APPENDIX:

Ableman v. Booth (1859)  –

The Court noted:  “It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court.”

It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

This Constitution, and the laws of the United States which shall be passed 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.’

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.

The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some tribunal was created to decide between them finally and without appeal.

This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.

We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States…..

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them…..   Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.

The Fugitive Slave Act is fully authorized by the Constitution of the United States.”  [pp. 516-525]

 

Is Nullification Unconstitutional

By Thomas Woods, February 5, 2013

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “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, the standard law-school response deletes the most significant words of the whole clause.  It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose of and is alien to the structure of that document.

James Madison 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 spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The 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.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my article: “Nullification: Answering the Objections,” by Tom Woods, Liberty Classroom [http://www.libertyclassroom.com/objections/ ] and/or pages 288-290 of my book Nullification.

Where are Today’s Sons of Liberty?

Sons of Liberty    by Diane Rufino

We talk a lot today about how the Constitution no longer means what it used to and it no longer protects individual freedom and liberty as it used to. We say this because a government of limited and defined powers has steadily and without apology become a government of broad and undefined powers.  When a state should happen to assert its sovereignty and challenge the usurpation of power, the federal government issues a letter threatening to take them to court. The government knows that what the Constitution won’t allow it to do, the courts will.

But the situation is far more serious than what we thought.  Yes, our Constitution is and has been under attack. And yes, the relationship between the individual and the government has been fundamentally altered. But the document that perhaps may be even more significant to us as Americans, the Declaration of Independence, is also under attack. The attack, if we want to be intellectually honest, started with the man the government touts as the greatest American president Abraham Lincoln.

Just as the Constitution was fundamentally transformed as the American people slept and as they became virtual strangers to their own history and heritage, the Declaration has been eroded because of the same reason.

John Adams once said: “A constitution of government once changed from freedom, can never be restored. Liberty, once lost, is lost forever.”  The American people don’t know how close they are to losing the very gifts they have taken for granted for so long.  We here today will enjoy the last remnants of freedom, but through our actions, our neglect, our spite, and our ignorance we may condemn our children and grandchildren to repurchase it, perhaps with their lives. It may be too late.

What shame we should feel that the people we love most in this world – our children – will not be able to exercise liberty as fully and enjoy property as unconditionally as we did when we were young. The most important property of all – that which stems from our minds, our hearts, and our ambitions – has come increasingly under the control of the federal government, to be regulated for others rather than protected for the individual.

Our greatest shame should be in the reality that posterity will have to buy back a gift we were supposed to preserve for them.

The problem today is that we’ve too long forgotten what makes us uniquely American. It’s not the heritage we bring with us to add to this melting pot we call the United States.  No, it’s the very thing that Martin Luther King referred to in his “I Have a Dream” speech – the promissory note that all Americans are entitled to. “When the architects of our republic wrote the magnificent words of the Constitution and the Declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the unalienable rights of life, liberty, and the pursuit of happiness,” as well as the guarantee that government would be protect those rights. That promissory note attaches to us at our birth and attaches to everyone who comes to America’s shores looking for freedom and the American Dream. In the United States, individual liberty is the product of natural law and God’s law and not a token gift from a benevolent government. In the United States, government doesn’t grant rights; it protects them. Our laws apply in times of good and bad; they apply to good people and bad people. The Bill of Rights has no exemptions for “really bad people” or even non-citizens. The Bill of Rights, as prefaced in its preamble as “further declaratory and restrictive clauses” on the power delegated to the government in the Constitution – is an important check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. And at the core of what defines America is that grand moral proclamation so eloquently articulated in the Declaration of Independence.

For too many years, Americans have remained silent as precious liberty interests have been taken away from them. It’s been a slow, progressive erosion indeed.  We today are guilty too, if not more than any other generation. We don’t understand that our freedom and liberty is only as secure as the foundation that supports and protects it. And every bit of that foundation is being eroded or has been eroded, including the notion of individual sovereignty (as I’ve pointed out in my previous article – “What It Means to be Sovereign” –  http://forloveofgodandcountry.com/2013/07/30/what-it-means-to-be-sovereign/).

We no longer jealously guard what our Founding Fathers sought to accomplish when they pledged their lives, their fortunes, and their sacred honor for and what our forefathers fought and died for. The spirit of the American Revolution is dead. Patrick Henry warned that we should never lose that spirit. Yet, when the Constitution was written and then presented to the Virginia ratifying convention in 1788 – only one year after it was written in Philadelphia – Henry took the floor and listed a series of issues he found with the document, all “tending to re-establish a monarchy” and subjecting citizens to the type of government that they had just dissolved their bonds of allegiance with. He accused the Virginians of already losing the spirit of the Revolution and being too willing to surrender their freedoms. He warned them to guard “that precious jewel,” which is liberty.

Before the Revolution, as we all know, the British Parliament imposed the Stamp Act – a tax on documents. The colonists did everything in their power, mostly through the Sons of Liberty, to frustrate its enforcement. They protested, hung British officials in effigy, organized angry mobs, threw rocks at the homes of officials tasked with collecting the tax, and otherwise intimidated such officials so that most resigned. In short, the Stamp Act could not be enforced. The colonists stood up for their rights (the right NOT to have a government in some far off land legislate for them and tax them without their representation).  As Benjamin Franklin (who was acting as the ambassador to England from Massachusetts at the time) tried to explain to Parliament: “The Stamp Act says we shall have no commerce, make no exchange of property with each other, neither purchase nor grant, nor recover debts; we shall neither marry nor make our wills, unless we pay such and such sums; and thus it is intended to extort our money from us or ruin us by the consequence of refusing to pay it…. They (the colonists) think it extremely hard and unjust that a body of men in which they have no representatives should make a merit to itself of giving and granting what is not its own but theirs, and deprive them of a right they esteem of the utmost value and importance, as it is the security of all their other rights.” A member of Parliament then asked Franklin if the colonists know their rights, and Franklin responded that they know them very well indeed. Franklin went on to warn Parliament that if the Stamp Act was not repealed, the colonies would likely revolt.

Next came the tax on tea. The King and Parliament were mindful of the rising passions of the colonists and their “revolutionary spirit.” In order to impose a tax yet not burden the colonists, Parliament secured a great surplus of tea from the East India Company. Because it was a surplus, it would be sold to the colonies at a lower price. On top of that, there would be a tax imposed of 3 pence per pound. It was no doubt, a minute tax on the tea. With the reduced price plus the tax, colonists would still be paying less for tea than they had paid before. There was no burden. Yet, we know what happened. We know that about 100 members of the Sons of Liberty dressed up as Mohawk Indians and dumped 342 chests of tea into the Boston Harbor to protest that minute tax. They protested, not because the tax imposed a hardship, but because they were smart enough and liberty-minded enough to recognize the violation of their rights which was at the core of that tax. They would not submit.

Today, we stand idly by even while the government destroys chunks of our liberties. When the 2011-2012 National Defense Authorization Act (NDAA) was passed, the Obama administration added a new clause (to the original Authorization of Military Force, AUMF, which Bush requested to hunt down and prosecute the perpetrators of 9/11). Instead of targeting the perpetrators of 9/11, the federal government added a clause to target US citizens, on American soil, who are engaged in hostilities against the United States (undefined terms, of course). Once targeted, they are stripped of their Bill of Rights and can be interrogated, tortured, and held indefinitely without a formal charge or without a trial. The Supreme Court created a special term for these Americans (reviving a term used by FDR in WWII) – “enemy combatants.” The US Constitution already addresses these types of people – they are called “traitors” – and appropriate action is clearly spelled out, so as not to punish without recognizing inherent human rights. But our government needed a way to by-pass constitutional rights and so, we have the NDAA and the ability of the Executive Department to unilaterally attach the label of “enemy-combatant” to an American citizen. But what did the American people do when their rights were taken away? Most said: “Well, the government needs to do what it needs to do to keep us safe.” And where was the outrage when the Supreme Court found that Obamacare was constitutional and the federal government can use the taxing power to compel human behavior in ways that in and of itself are unconstitutional (federal government has NO right to get involved in healthcare; it’s not an enumerated function). Again, too many people were just happy to know the government will be ensuring that they have healthcare coverage than to appreciate the enormity of the violation of fundamental rights that underlies that decision. The debate over whether the government needs to restrain gun rights in order to stem violence in our schools is another issue. Sustainable development policies are another. The “Wall of Separation” and growing hostility of government against religion is another….

The list goes on and on. We just sit back. We don’t protest, we don’t do all we can to frustrate the enforcement of unconstitutional federal laws or policies or even court decisions….  We’ve lost the Revolutionary spirit. We’ve lost the spirit in our hearts and minds that compels us to stand up for our precious liberties.

And the sad thing, we’ve already lost so much.

So the question is this: Why don’t we care?  Why aren’t we doing more?  And where are today’s Sons of Liberty?