Thanks Ronald Reagan for the Speeches and the Laughs, but Mostly for Your Wisdom and Your Example

RONALD REAGAN - black and white

by Diane Rufino, August 24, 2018

I’d like to take a trip down memory lane, back to the time when Ronald Reagan was president, when most Americans admired our leader, trusted him, and felt comforted and safe knowing he was in charge. He had class and a certain gentility, yet also having a backbone to stand up for our country’s values and to stand firm on his moral convictions.

Ronald Reagan should be a role model for all Americans. He was civil and polite and even if he disagreed with you, you felt that it could never shake the bonds of friendship or make him have any less respect for you. For him, government served a purpose and that purpose was clear and limited. To view it any other way was to sacrifice individual liberty and to diminish its security.  He believed our country was founded on individual liberty to secure individual liberty.  Yet he was fully aware that government belongs and serves all citizens and it is their voice, at the ballot box, that sets its course.

In looking at Reagan’s entertainment and then his public service career, we see that he refused to be defined by a particular political party, looking instead to see which party supported the best policies, which party best served the American people and furthered the safety and security of the country. As most people know, he started off as a Democrat but later switched to the Republican Party.

In 1986, speaking at a fundraiser for Illinois Governor James Thompson (running for the US Congress), Reagan recounted a conversation he had in the White House with a man, Jim O’Grady, who went through a similar political transition, or transformation. He said:

“When he was at the White House, Jim said to me, ‘The great Democratic Party of my father’s and grandfather’s time just doesn’t exist anymore. Mr. President, I didn’t leave the Democratic Party, the Democratic Party left me. That’s why I switched parties.’ And I said, ‘Jim, join the crowd.’”

He went on to share the experience of the great Winston Churchill:

“I know how tough it can be to change parties. I was working for Republican candidates for some time before I changed my registration. But for anyone who’s concerned about, and thinking about doing, that, I think Winston Churchill—when he changed parties, was a member of Parliament in England. And he answered a question as to why. He said, ‘Some men change principle for party, and some change party for principle.’”

There was a time when the Democratic Party still stood for solid principles and policies.

Being an actor and president of the Screen Actor’s Guild, it would have been very unusual for Ronald Reagan not to be a Democrat. As we all know, Hollywood has been historically Democratic. Most likely, he used his political affiliation only to enhance his own interests, and the Democrat Party was more suited to his own personal advancements in the Hollywood business industry.

Once Ronald Reagan became more successful as a businessman than he actually was as an entertainer and became more involved in politics, it seems he realized that while the Democrat Party was good to address the plight and situation of certain groups of individuals, it was not looking out for the best interest of the country or American citizens as a whole. He realized, despite the policies of the Democratic Party to “take care of people,” at their core, the policies did more harm than good – for both those they intended to help, for taxpayers, and for the rest of Americans. For all the spending that Democrats did on entitlement programs, there was little good to show for it; in fact, the policies did little to actually further individual success, dignity, or advancement, and rather created a problem of dependency, inferiority, and victimhood. As Reagan would point out, entitlement policies were fraught with fraud, abuse, and dependency and they (more than anything else) were enabling government to become larger and larger, something he had always viewed with great skepticism. He found it inconsistent that a country that calls itself free could allow the federal government to have increasing control and influence on citizens’ everyday lives.

Ronald Reagan became a Republican.

Reagan officially switched political parties in 1962, although some say that he wanted to do so even as far back as 1952, when he threw his support for Dwight D. Eisenhower and his running-mate, Richard Nixon.

In fact, in 1964, being asked to speak on behalf of presidential candidate Senator Barry Goldwater, Reagan delivered one of the most significant and famous speeches of all time – “A Time For Choosing.” In that speech he alluded to the choice Americans would have to make in the 1968 election — a choice for big government and less freedom or limited government and more freedom (“This is the issue of this election: whether we believe in our capacity for self-government or whether we abandon the American revolution and confess that a little intellectual elite in a far-distant capitol can plan our lives for us better than we can plan them ourselves.”)

With that speech, California Republicans took notice. They were impressed with his political views and his undeniable charisma. And so they nominated him as the Republican party candidate for Governor in 1966.

The rest is history. And to a great many Americans, he is sorely missed.

Like it or not, agree or disagree, President Trump is a lot like Reagan. Like Ronald Reagan, Donald Trump started off as a Democrat. That makes sense…. he’s a New Yorker. And like Reagan, Trump became more civic-minded once he achieved personal wealth… once he came to understand all the intricacies of how businesses are affected by government policies; how wealth is created.

Both men gravitated to party that allows American citizens to have greater opportunities to control their own destinies rather than be made to be dependent on government agencies.

But most of all, both men heeded the call of the time, to rally a people to change a disastrous course that its government was on.  In fact, the situation presented to both men is incredibly similar. One just needs to continue reading Reagan’s remarks at that 1986 fundraiser event to note the similarities:

“As you may know, I went to Eureka College. That’s a little bit to the south and west of here. And I’ll never forget graduation day, when the president of the school handed me my diploma. He asked me a question that really stuck in my mind. He asked, ‘Are you better off today than you were 4 years ago?’ Well, I’ve posed that question myself a few times since.

There was a time, and not so long ago, back in 1980, when the American people had to answer that question with a big, resounding ‘NO!’ The complete mismanagement of the party then in power had made an invalid of the once powerful giant of the American economy. After years of neglect, our proud military had fallen into disrepair and the mighty United States had become a whipping boy for penny-ante dictators and fanatics. A chorus of doom and gloom rose up from our opponents saying our best days were behind us and ringing down the curtain on America.

But you can be sure the American people never lost faith in our country. They knew that America’s best days were ahead of her, that the future was bright. And all they had to do was to clear out those people in Washington who were making such a mess of things. As usual, the American people were right. We came in and cut taxes, squashed inflation, unburdened the economy of needless regulations, heralding one of the longest peacetime expansions in history. Today there are actually 30,000 pages less in the Federal regulations than there were those few years ago. We built up our military, and around the world we spoke out loudly and clearly for freedom.

Today America is once again strong and united. Our economy is a powerhouse of economic growth and job creation, and we’ve regained our rightful place as leader of the free world. Now, there’s one change that makes me particularly proud: We have restored pride in the uniform of the military of the United States of America. Today’s recruits—and they’re all volunteers-are the most educated and some of the most highly motivated—simply the finest young men and women who have ever served their country. Indeed, we have a higher percentage of high school graduates in the military than we have ever had in our entire history, even with our wartime drafts. If we ever have to send them in harm’s way, I’m going to make sure they have the very best possible equipment that America can produce.

But it’s important to remember those dark days 5 ½ years ago, because the tax-and-spend crew is still lurking in the shadows, just waiting for a second chance. The liberal leadership of the Democratic Party hasn’t changed; they’re as addicted as ever to big government, high taxes, and inflation. They’re just itching to repeal our tax cuts, to replace our opportunity society with a welfare state. And their foreign policy is still the same: slash defense and, when in doubt, always ‘blame America first.’ The Democratic leadership would chart the most dangerous course for a nation since the Egyptians tried a shortcut through the Red Sea. You have to think about that one for a minute. We can’t let America be paralyzed by a hostile Congress. We have too much yet to accomplish…

I’ve come here today to tell you that this election in 1986 will be a crucial moment of decision for our country. Will liberal policies return us to the days of malaise?  Or will America continue down the road to progress? The answer to that question depends on one thing: [the people you elect]…..

I don’t have to tell you how important it is to have —– supporting our efforts to slim down the Federal bureaucracy and bring government back where it belongs: closer to the people. There are many people in Washington who have forgotten—or who want to forget this nation is a federation of sovereign States, and that is our basic strength……”

[Reference:   http://www.presidency.ucsb.edu/ws/?pid=37732 ]

Ronald Reagan brought us so much laughter and so much wisdom. He saw the defining issue of the day, laid it out crystal clear to the people of the United States, and put the country’s destiny in their hands. And as Reagan commented above: “The American people never lost faith in our country. They knew that America’s best days were ahead of her, that the future was bright. And all they had to do was to clear out those people in Washington who were making such a mess of things.”

And Donald Trump did the very same thing. Drain the Swamp. Make America Great Again.  The American people knew that it was DC getting in the way of the country’s greatness and the ability of people to get ahead.

I hope when people step into the ballot box in November, they remember Ronald Reagan and they realize the hope of the country lies within them, in their ability to appreciate what America needs to continues to be her greatest self and their willingness to make the right choices.  I hope they think back to Ronald Reagan and his path to finding his political identity, and especially to the criteria he used in finding that identity.

Conservatives, we may not have the mainstream media on our side, and we may not have those with the loudest platforms on our side, and we may not have the courts on our side, but if we want to do the right thing for our country, we need to use the one thing we do have…..  the ballot box.

As usual, the American people were right. We came in and cut taxes, squashed inflation, unburdened I hope everyone asks the right questions when they step into the ballot box

 

References:

Remarks given by President Ronald Reagan at a Fundraiser for Gov. James R. Thompson, Jr., in Rosemont, Illinois (April 12, 1986)  –   http://www.presidency.ucsb.edu/ws/?pid=37732

Video: Ronald Reagan’s Humor over the Years — https://www.facebook.com/diane.rufino.7/videos/10215249902793014/

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Cicero Warned About the Evils of an Ambitious Government

CICERO - bust   by Diane Rufino, July 15, 2018

When a government becomes powerful, it is a usurper which takes bread from innocent mouths and deprives honorable men of their substance for votes with which to perpetuate itself.” — Marcus Tullius Cicero.

Cicero was a famous lawyer, philosopher, and most importantly and significantly, a Roman senator during Pompey Magnus’ and then Julius Caesar’s rule. Anyone who has studied Roman history knows of the great Cicero. Cicero was the great defender, the great proponent of the Roman republic.

Cicero warned about the evils of an ambitious government. At some point, that government becomes more concerned about its power, its longevity, and its control over its citizens than it is about the rights of the citizens themselves and their legitimate issues. It transforms from a government for the people to a government for the government, and the best way for a government to perpetuate its own power and control is to be able to secure their votes. The best way to secure their votes is to keep them dependent on the government for their essentials, for their sustenance. And that’s when governments move towards socialism.

Keeping people comfortable in their poverty is what the government seeks… keeping them just comfortable enough so that they don’t bother exerting the energy to get a good education and become self-sufficient (which means they become suspicious and resentful of government); keeping them comfortable enough so that they don’t bother exerting the energy to go out and get a good job and therefore jeopardize getting all the free stuff. Man is essentially a lazy creature. If he can get for free what it normally would take a lot of energy to obtain, he has a tendency to get it for free… OR, to take it from those who have “enough.”  Man is also smart. If the incentives are taken away (the incentives that come from a free market economy) for him to be successful, he won’t be willing to put in the many years of education, all the hard work, the sacrifice, and take the necessary risks in order to become successful, to develop a necessary or a novel or a more efficient, effective product, to build a successful business, or to offer important services. If he can’t enjoy the benefits, the fruits, of his hard work and his sacrifice, he won’t put in the energy. And society suffers. Innovation stagnates.

Government needs – absolutely needs –being large enough to maintain the safety and security of the people and securing their inalienable rights yet small enough not to over-regulate the people it governs. As long as government remains small enough and dedicated to the proper aims for its existence, then it should not need to find ways to control people, control the votes they cast, and keep them dependent and thus prevent them from investing in themselves and doing for themselves. Being independent and able to provide for oneself is the absolute way to be objective about government and how it is being run and how it is governing, and therefore the best way to keep it honest and ethical.

Again, Cicero understood the evils that come from an ambitious government.

Cicero had a profound impact on our Founding Fathers, particularly on their understanding of the proper role of government and their design to secure human rights and defend individual liberty by tightly constraining government. As he wrote: “Never was a government that was not composed of liars, malefactors and thieves.”

During the Enlightenment era, philosophers from England and France began to think similarly to Cicero – about the natural role of government rather than a divine right to sovereignty. They, as Cicero did, spent a lot of time philosophizing about the proper role of government and of laws. Frederic Bastiat, for example, recognized that the greatest single threat to liberty is government. The extension of that is that government must be established for the right reasons and must be constrained.

In his writings, Cicero talked about the rightful purpose of laws. He said laws had to serve “right reason’; in other words, laws should promote and reward good behavior while punishing and discouraging bad behavior. In his book, The Law, Bastiat talks about laws needing to be kept in their proper domain which is the protection of every person’s liberty and property.  According to Bastiat: “See if the law takes from some persons what belongs to them, and gives it to other persons to whom it does not belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime.”

Relying on Cicero’s advice, and Bastiat’s as well, to keep government minimal and constrained, adding in John Locke’s explanation for the natural purpose for government (to secure individual rights), and topping it off with Montesquieu’s advice for the need for checks and balance on government to keep power that is properly divided in check, our Founders came up with the government that was created by the US Constitution.

Our current federal government hardly resembles that government. It has gotten large, bloated, aggressive, and overly ambitious. It is so ambitious that it looks out for itself first and foremost. Consequently, it now longer knows what its “proper domain” is and in many respects, it is no longer interested in protecting every person’s liberty and property. It is certainly not interested at all in property rights. Property now exists for government to tax.

Cicero started man thinking in the right direction – a direction that would ultimately result in a nation defined by the Declaration of Independence and one dedicated to the security of individual liberty. Sadly, the government he believed and stood up for would cost him his life.

During the years when Julius Caesar wrestled control of Rome from Pompey and then sought to concentrate power in just himself, Cicero warned about the dangers to the republic. Concentrating power in himself, Caesar naturally sought to take power away from the Senate, the people’s body, thus taking away government power from the people. Cicero believed and defended the Roman republic. His strength of character and devotion to principle led to his demise. He was assassinated on the order of Marcus Antony and Augustus Caesar, per Rome’s Proscription law, labeled as a traitor for daring to remain loyal to the republic rather than to Rome’s all-powerful leaders, Julius Caesar, Augustus, and Antony. Antony instructed that Cicero be beheaded and that his hands be cut off, particularly the one he had used to compose the speeches against him, portraying him as a despot. Cicero’s head was put on display outside the Senate, by its door, and his hands nailed to the podium on the Senate floor, to deter future insolent behavior.

Let us never forget our courageous founders who put their lives on the line to stake out our country’s independence from a government that had grown tyrannical and disrespectful to individual rights. We get a glimpse of what was at stake for them when we read the final paragraph of the Declaration of Independence: “… we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Their act of rebelling against the Crown was an act of treason, punishable by the most cruel and horrible of deaths. They, like Cicero, stood up for responsible government, a government (republic) of the people and responsible to the people, knowing they would likely be punished for being traitorous.

The question is, of course, will we heed Cicero’s advice. Will we appreciate Bastiat’s warning. Are we doomed to an ambitious government that will continue down the road to socialism and political despotism or will be work to take back our government and divest it of its unconstitutional and unnatural powers.

JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be that “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).

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.

Nullification: Comments to a Harsh Critic

Thomas Jefferson - Change We Can Believe in   by Diane Rufino

I wrote an article in support of Nullification (“Limit Federal Spending through Nullification and State Escrow Accounts”).  A man responded with this comment: “You  propose a remedy and say it’s based on Nullification… In other words, it’s based on crackpottery, along the lines of ‘sovereign citizens.’  SCOTUS has repeatedly rejected nullification and yet loons still pop out of the woodwork claiming to perform legal smoke-and-mirrors using it.”

I wrote the following to him in response:

You seem to understand very little of the most critical of the checks and balances that our Founders created in order that our government remained limited and the liberty of the American people (who had just seceded from the most powerful empire on the planet at the time because that King and Parliament refused to respect the rights of the colonists under the English Bill of Rights of 1689) remain paramount, protected, and unburdened. I’m talking about the federal nature of our government. State versus federal government. Sovereign versus Sovereign. Each acting as jealous guardians of their power in order that neither invade the sphere of power of the other. This was the unique design feature of our American government and the gemstone upon which our liberty was to be secure. I mean, the Ninth and Tenth Amendments certainly are not obscure, And that’s what Nullification is all about. It’s about recognizing this critical doctrine, giving it practical meaning, and about recognizing what Patrick Henry warned about in 1788 in the Virginia Ratifying Convention (Our eye must always be on Liberty….”give us that precious jewel and you can take everything else.”).

If you truly believe that the federal government has the exclusive right to judge the extent of its own powers, then you are unfit to preserve liberty for your grandchildren.  You are fit for a master and deserve one.

If the federal government has the exclusive right to judge the extent of its own powers, as Madison and Jefferson warned in 1798-99, it will continue to grow – regardless of elections, the separation of powers, and other limits on government power.  And then we will have a government no better than the one our forefathers fought a bloody revolution for or the ones that we fought a horrendous world war to wipe off the face of the planet.

You may trust 9 men who wear black robes and sit on the bench of the Supreme Court, but that’s all they are…. men (“motivated, as we all are, by the same passion for party, for power, for social change, and for legacy). And their power is the most dangerous because they are in office for life, and not responsible or accountable, as the other functionaries are, to Elective control. 4 members of the Court already believe that their job is to re-interpret the Constitution. How would you like it if an unaccountable group of people took a look at your mortgage agreement and decided that its terms all of a sudden don’t mean the same as when you signed the document? How would you like it if, for the good of the bank and its ability to lend more money to more people, it was going to increase your interest rate by 100% (that is, double it), or even triple it.  A free people deserve transparency. They deserve to know that the document that protects them from the reaches of government is ironclad and means today what it meant yesterday and what it will mean tomorrow. Let me ask you this. You say the Supreme Court addressed the issue of secession and nullification and decided that they are unconstitutional. (I lump them both together since that is what most critics of Nullification seem to do).  First of all, the justice who wrote the decision was a personal friend of Abraham Lincoln. He was promoted from Sec, of State to Chief Justice. He owed his career to Lincoln and the decision reads as if Lincoln himself wrote it. Second of all, Chase did not go to law school. He learned law pretty much by an apprenticeship. And you’re willing to say his decision should be worthy of being called “the law of the land”?  Third, and finally, the ONLY job of the Supreme Court is to interpret strictly the Constitution (see Marbury v. Madison). As Justice Marshall wrote in that decision: “To take one step beyond the bounds of the Constitution is to violate the oath of allegiance that one takes to that document and that amounts to treason.” (I’ve paraphrased).  Secession and Nullification are NOT addressed in the Constitution at all. Why? Because secession is a fundamental right, as explained in the Declaration of Independence. It is as fundamental to free individuals as is the inalienable rights of Life, Liberty, and Pursuit of Happiness. (Go to paragraph 2; it’s all right there). And Nullification is implied in the very nature of federalism and in the Tenth Amendment. It’s like saying to an individual… “You have the right to life but you can’t defend it.”  Well, we DO have the right to life and we DO have the right to defend it. The implied right is our right to self-defense and self-preservation, which is also in second paragraph of the Declaration.  If the issue is NOT in the Constitution, the Court has nothing to interpret. It is beyond their jurisdiction. The Declaration is not a document for the federal courts to interpret or dismiss.  Thomas Jefferson wrote: “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.”  This is great advice and one that no one seems to heed.

You may put your trust in SCOTUS, but it is poorly-placed trust, my friend. That Court has taken away your right to alter or abolish your government, even when it becomes destructive of your God-given rights, it has taken your money (ear-marked for “social security”) and said it is NOT your property after all and the government can do what it wants with it, it has forbidden you to express your religion in public institutions, it has said you have no right to be informed or consulted if you child wants an abortion, and it recently announced that the government can use the taxing power to coerce ordinary Americans into doing what it wants them to do,  As for me, I put my trust in Thomas Jefferson and James Madison, the very men who remember why we separated from England and who wrote our founding documents (and therefore, understood them best).