TITAN v. TITAN: President Trump and the Federal Courts Face Off Over Temporary Travel Ban

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by Diane Rufino, February 6, 2017

On January 27, President Donald Trump issued an Executive Order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” which provides a 90-day suspension of entry into the United States for individuals from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen on account of their status as posing a heightened risk of terrorism. It was the US Congress, under President Barack Obama, which had assigned this status to those seven countries.

The Executive Order was issued after the President determined that “deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States,” and that our Nation accordingly must take additional steps “to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.” [see the text of the Executive Order]. Invoking his constitutional authority to control the entry of aliens into this country and congressionally-delegated authority to “suspend the entry of any class of aliens” whose entry “would be detrimental to the interests of the United States,” the President, by issuing the Executive Order, has directed a temporary 90-day suspension of entry for individuals from seven countries previously identified as posing a heightened risk of terrorism by Congress or the Executive Branch; a temporary 120-day suspension of the U.S. Refugee Admissions Program; and a suspension of entry of Syrian nationals as refugees until the President determines that measures are in place “to ensure that admission of Syrian refugees is consistent with the national interest.” Exec. Order §§ 3(c), (5)(a), (c).

Democrats and opposition groups have nicknamed the Executive Order “the Muslim travel ban.”

Two days ago, on February 4, a federal district judge in Seattle issued a ruling – a nationwide temporary restraining order (TRO), aka, an injunction – that temporarily blocks the Executive Order. The court order prevents the president’s Executive Order from going into effect and allows the immigration to move forward.

The State Department has agreed to abide by the ruling until it files an appeal. In the meantime, the judge’s decision allows tens of thousands of aliens from terrorist nations visas to travel to our country. The ruling came after Washington State Attorney General Bob Ferguson, filed a complaint challenging the constitutionality of the Executive Order’s key provisions. The TRO was issued by Seattle US District Judge James Robart pending a full review of Washington states’ complaint. In response to the decision, WA Attorney General Ferguson commented: “The Constitution prevailed today. No one is above the law—not even the president.”

Minnesota joined the suit with Washington and since the TRO was issued, seven other states have decided to join and challenge the “travel ban.” They want it overturned. These seven states include Washington, Virginia, Massachusetts, Hawaii, New York, Michigan, and California.

One day, earlier, however, another district court (Massachusetts) concluded in a thorough, well-reasoned opinion, the Executive Order is a lawful exercise of the political branches’ plenary control over the admission of aliens into the United States. Louhghalam v. Trump, Civ. No. 17-10154-NMG, Order 11 (D. Mass. Feb. 3, 2017)

This article will explain why the Executive Order and the temporary travel ban is legal and appropriate and why I think it will ultimately be upheld.

First, immigration is the sole responsibility of Congress (not of the States). The States expressly delegated such power to the federal Congress in Article I, Section 8: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States……  To establish a uniform rule of naturalization….”  (The Supremacy Clause ensures that the States respect the federal government as the sovereign on this issue). Under this authority, Congress passed the Immigration and Naturality Act of 1952 (codified at 8 USC Chapter 12) which lays out federal immigration law.  § 1182 of this Act concerns inadmissible aliens; it delegation to the President of the United States the power to suspend entry “for all aliens or any class of aliens as immigrants” or to “impose on the entry of aliens any restrictions he may deem to be appropriate.”

Second, the travel ban is a proper exercise of the President’s power to issue Executive Orders to force the government to enforce laws already on the books (such as the one discussed above), his war power as Commander-in-Chief (we are currently engaged in a War on Terror, as admitted so by our very own Congress and presidents), his Foreign Policy powers, and his National Security Powers.

I. The Executive Order and What It Says (and Doesn’t Say) –

The Executive Order, available on the White House website, reads:

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:

Section 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.

In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.

Sec. 2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.

Sec. 3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.

(a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.

(b) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.

(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).

(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.

(e ) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.

(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment. [The full text is provided in the Appendix below]

Section 217(a)(12) of INA, 8 USC 1187(a)(12), which is the Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015 (and extended in 2016) and which is highlighted and italicized above in the text of the Executive Order, identifies seven countries which are excluded from the waiver program. These seven countries are Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. These countries were identified under the Act, by the Obama administration, because they present a heightened risk of terrorism and they cannot and do not provide proper information on its nationals so that the United States can vet those coming into our country. A different section of the Order refers to Syria specifically, because it calls for the indefinite suspension of Syrian refugee admissions, until such time as the President believes security concerns have been adequately addressed. The President’s Executive Order does not seek to make new law. Rather, it clarifies existing law and aligns it with national security concerns. The Executive Order addresses the basic requirement for an alien to enter and reside in the United States – a verifiable visa.

Under the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., an alien may not enter and permanently reside in the United States without a visa. See §1181(a). President Trump is using the visa requirement to introduce proper vetting measures as it relates to those coming in from countries previously identified as engaging in terrorism and being unable to provide adequate visas. Without proper visas, the government (and the innocent citizens of the United States) do not know what type of citizens they are getting and furthermore, will be unable to keep tabs on them. According the INA, visas must ensure that the individual seeking to move to the US is not inadmissible for a number of reasons, including that they innocent of terrorist activities. The seven countries covered by the Executive Order cannot ensure that its citizens meet our threshold. Hence, the president has issued a temporary ban for 90 days in order that proper assurances can be provided.

So, to be clear about the President’s Executive Order: It bars Syrian refugees indefinitely and blocks citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen from entry into the US for 90 days. The provisions of the Executive Order will force the State Department and Homeland Security to establish proper vetting procedures by the 90-day period (the temporary ban) for those countries so that authorities can keep the United States safe. The exact process by which the president seeks to establish proper vetting procedures is explained clearly in the Order.

Here is some background information on the Immigration and Nationality Act, to which the Visa Waiver Program Improvement and Terrorist Travel Prevent Act has been recently added:

The Immigration and Nationality Act (INA), as amended, prohibits admission into the United States of a foreign national not in possession of a valid visa, with a few limited exceptions. One such exception is the Visa Waiver Program (VWP or Program) which, for a number of years, was a pilot program (VWPP). That pilot program, which was first enacted in 1986, was designed to allow nationals from certain countries to enter the United States under limited conditions, for a short period of time, without first obtaining a visa from a U.S. consulate abroad. On October 30, 2000, President Clinton signed the Visa Waiver Permanent Program Act, making the program permanent. See Section 217. The VWP, administered by the Department of Homeland Security (DHS), in consultation with the State Department, utilizes a risk-based, multi-layered approach to detect and prevent terrorists, serious criminals, and other mala fide actors from traveling to the United States. This approach incorporates regular, national-level risk assessments concerning the impact of each program country’s participation in the VWP on U.S. national security and law enforcement interests. It also includes comprehensive vetting of individual VWP travelers prior to their departure for the United States, upon arrival at U.S. ports of entry, and during any subsequent air travel within the United States, among other things.

The VWP authorizes the Attorney General, in consultation with the Secretary of State, to waive the requirement of a valid nonimmigrant visa for visitors for business (B-1) or pleasure (B-2) who are seeking to enter the United States from certain countries for not more than 90 days. In 2003, 13.5 million visitors entered the United States under this Program, constituting almost one-half of all visitors that year. The main advocates of the VWPP were the Department of State (DOS), the American tourist industry, and the business community. DOS advanced a two-fold incentive for the program: (1) eliminating the requirement for nationals of high volume application, low denial rate countries to apply for nonimmigrant visitor and business visas at the consulates, thus also eliminating processing paperwork and freeing consular resources for other activities; and (2) fostering better relations with reciprocity countries that allow U.S. citizens to also enter without a visa. The U.S. tourist industry was enthusiastic in its support of the program, as it correctly envisioned that millions of tourists would take advantage of the opportunity to travel to the United States on the spur of the moment without the time-consuming inconvenience of having to obtain nonimmigrant visas in advance of travel. The business community also welcomed the idea that people could enter the United States on short notice to conduct business without first applying for a nonimmigrant visa.6 For the most part, while the VWPP had been enthusiastically received, the Program was also the subject of a critical report issued by the Justice Department’s Office of Inspector General. Testifying before a House subcommittee on May 5, 1999, the Inspector General noted that the Pilot Program could facilitate illegal entry because visitors from VWPP designated countries avoid the pre-screening that consular officers normally perform on visa applicants. It was also pointed out that some terrorists and criminals intercepted at the time of inspection were attempting to enter under the VWPP. Another problem, according to the Inspector General, was government employee corruption involving bribery and trafficking in fraudulent or blank passports and other documents.

At press time, 27 countries are designated participants They include Andorra, Australia, Austria, Belgium, Brunei, Denmark, Finland, France, Germany, Iceland, Ireland, Italy, Japan, Liechtenstein, Luxembourg, Monaco, New Zealand, the Netherlands, Norway, Portugal, 18 San Marino, Singapore, Slovenia, Spain, Sweden, Switzerland, and the United Kingdom. A small number of countries that were once designated VWP countries have been disqualified from the VWP. Belgium is currently in provisional status because of concerns about the integrity of its nonmachine-readable passports and issues associated with the reporting of lost or stolen passports. Qualifying countries are designated by the Attorney General, in consultation with the Secretary of State, based upon that country’s satisfaction of a number of requirements, including not issuing passports to persons who pose a threat to the welfare, health, safety, or security of the United States, having a low non-immigrant visa refusal rate for the two years prior to designation, and the status of the country as one that issues its citizens machine-readable passports (“MRP”) that satisfy the internationally accepted standard for machine readability.

Section 217(a)(12) provides that a visa will not be waived “from Iraq, Syria, or other country or area of concern.” Specifically, the section states that a visa will not be waived for any “alien who has been present, at any time on or after March 1, 2011, in Iraq or Syria, or any country designated by the Secretary of State or Secretary of Homeland Security [under section 6(j) of the Export Administration Act of 1979 (50 U.S.C. 2405) (as continued in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701 et seq.)), section 40 of the Arms Export Control Act (22 U.S.C. 2780), section 620A of the Foreign Assistance Act of 1961 (22 U.S.C. 2371), or any other provision of law], as a country whose government has repeatedly provided support of acts of international terrorism or has provided support of acts of international terrorism.” [https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html ]

II.  Constitutional Authority –

As mentioned earlier, immigration is a responsibility delegated to the federal government by the States. It was an express delegation for an express purpose – to “provide for the common defense.”  Together with the authority “to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions; and to provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States (Article I, Section 8), Congress was vested with the authority “to establish a uniform rule of naturalization.” (also Article I, Section 8).  All of these objects, as explained in the first line of Section, comprise the federal government’s primary purpose – “to provide for the Common Defense.”

So, Article I of the US Constitution gives Congress the power to make all “necessary and proper” rules to legislate and define our nation’s immigration policy.  Because this authority was delegated from the States to the federal government, the federal government is sovereign on this topic; that is, its authority is supreme. The States of Washington and Minnesota may think it has the power to interfere with the government’s rightful role – to somehow claim that its interests supersede the federal government’s decision with respect to the nation as a whole, but it is the government which is given deference.

Article II of the US Constitution provides the president with his powers. Article II, Section 1 gives the President the authority to enforce the laws passed by Congress. The president, therefore, is tasked to make sure our immigration laws are enforced.  Article II, Section 2 gives the president additional powers over immigration – under his war powers.

Article II, Section 2 of the US Constitution reads: “The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States; he may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices….”  When the Congress voted almost unanimously to authorize military force to fight the war on terror (AMU of September 14, 2001), it was taken as a declaration of war. As soon as our country engaged in military action, and especially with a declaration of war, the president holds the title of Commander-in-chief and has, on top of his executive powers, vast war powers.

The President also has Foreign Policy powers and National Security powers. (The State Department and Homeland Security Departments are executive cabinet offices under his control).

III.  Statutory Authority –

The Immigration and Naturality Act of 1952, codified under Title 8 of the United States Code (8 U.S.C. Chapter 12), also known as the McCarran–Walter Act, restricts immigration into the United States. It expressly authorizes the president to suspend entry of all aliens or any class of aliens, or place any restrictions on their entry as he deems necessary or appropriate, whenever he finds that such aliens would be detrimental to the interests of the country. There isn’t even a requirement that the country be at war or involved in any particular conflict.  Congress knowingly, expressly, granted the President of the United States with plenary power to suspend or restrict aliens, or any class of aliens, into the country.

The Immigration and Naturality Act of 1952 was passed by a Democrat-controlled Congress, both House and Senate, and was signed by a Democrat president, Harry S. Truman.

8 U.S. Code § 1182 reads:

8 U.S. Code § 1182 – Inadmissible Aliens

(10) Miscellaneous

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

The provision gives presidents broad authority to ban individual immigrants or groups of immigrants. Presidents haven’t hesitated to use it.  In modern times, Barack Obama invoked it 19 times, Bill Clinton 12 times, George W. Bush six times and Ronald Reagan five times. George H.W. Bush invoked it once.

Indeed, throughout our history, there have been a number of instances in which the United States has curtailed or suspended the immigration of people from certain regions or nations, both during times of war and times of peace. In several circumstances, these laws have been upheld by the Supreme Court, confirming the power of the Federal Government to regulate immigration based on the national interest. The text of the Immigration and Nationality Act is clear – the President has broad discretion to keep certain people out of the United States.

Not long after the American colonies fought the British for their independence and then established the new union (“a more perfect union”; created by the adoption of the US Constitution), the French had their own revolution. (1789-1799). The Federalists, led by Washington and then John Adams, detested the French Revolution of 1789 (1789-1799) because it led to mob rule and confiscation of property. The Republicans, which represented a new party started by Thomas Jefferson to oppose the Federalists, supported the French Revolution for its democratic ideals.

The French and English were longtime enemies. So, when President Washington developed favorable relations with Great Britain (by negotiating a treaty to settle outstanding differences between it and the States), the French revolutionary leaders became angered. In the election of 1796, Federalist John Adams won the most electoral votes to become president. Republican Thomas Jefferson came in second, which made him vice-president. (The 12th Amendment later changed this election method, requiring separate electoral ballots for president and vice-president).  Shortly after becoming president, Adams sent diplomats to France to smooth over the bad feelings. But three French representatives – dubbed X, Y, and Z – met secretly with U.S. diplomats and demanded $10 million in bribes to the French government to begin negotiations. When the Americans refused, Mr. X threatened the United States with the “power and violence of France.”  News of the “XYZ Affair” enraged most Americans. Many Federalists immediately called for war against France while Republicans spoke out against the “war fever.”

Neither the United States nor France ever declared war. But the Federalists increasingly accused Jefferson and the Republicans of being a traitorous “French Party.” Rumors of a French invasion and enemy spies frightened many Americans. President Adams warned that foreign influence within the United States was dangerous and must be “exterminated.”

Amidst this climate, in 1798, President Adams signed the notorious Alien and Sedition Acts into law to help him deal with repercussions of the French Revolution and also the Quasi-War with France. The Acts, readily adopted by a Federalist-dominated Congress, were intended to make the United States more secure from alien (foreign) spies and domestic traitors. The acts allowed the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” at any time and any male citizen of a hostile nation during times of war. The two most notable of these acts were the Alien Enemies Act and the Alien Friends Act.

The Alien Enemies Act provided that once war had been declared, all male citizens of an enemy nation could be arrested, detained, and deported. If war had broken out, this act could have expelled many of the estimated 25,000 French citizens then living in the United States. But the country did not go to war, and the law was never used. It was later used, however, to justify FDR’s rounding up of Japanese-American citizens during World War II.

The Alien Friends Act authorized the president to deport any non-citizen suspected of plotting against the government during either wartime or peacetime. This law could have resulted in the mass expulsion of new immigrants. The act was limited to two years, but no alien was ever deported under it.

In 1882, President Chester A. Arthur signed the Chinese Exclusion Law, which prohibited the immigration of Chinese laborers. The Chinese Exclusion Act was a vital test for the power of the federal government to restrict immigration. It was upheld by the Supreme Court in the 1889 case of Chae Chan Ping v. United States. In the opinion of the court, Justice Stephen Johnson Field wrote, “The power of the government to exclude foreigners from the country whenever, in its judgment, the public interests require such exclusion, has been asserted in repeated instances, and never denied by the executive or legislative departments.”  (The act was repealed by Congress in 1943).

In his 1905 State of the Union address, President Theodore Roosevelt had spoken of the need “to keep out all immigrants who will not make good American citizens.” In 1906, in his State of the Union address to Congress, he said he needed to have the power to “deal radically and efficiently with polygamy.” The following year, Congress passed and Roosevelt signed into law the Immigration Act of 1907, which read (Section 2):

“The following classes of aliens shall be excluded from admission into the United States: “All idiots, imbeciles, feebleminded persons, epileptics, insane persons, and persons who have been insane within five years previous; persons who have had two or more attacks of insanity at any time previously; paupers; persons likely to become a public charge; professional beggars; persons afflicted with tuberculosis or with a loathsome or dangerous contagious disease; ….  “polygamists, or persons who admit their belief in the practice of polygamy……”

The Immigration Act of 1907 had been meant to select only those immigrants who would make good Americans.  It is interesting to note the phrase “polygamists or persons who admit their belief in the practice of polygamy.” (The Immigration Act of 1891 had merely banned polygamists). Muslims at that time were furious over the Immigration Act of 1907 specifically because of this phrase because, as they pointed out, that phrase would prohibit the entry of the “entire Mohammedan world” into the United States. Muslims believe in polygamy. They may not actively practice it, but every faithful Muslim believes in the practice; the religion allows it.

Unlike modern presidents, Roosevelt did not view Islam as a force for good. Rather, he had described Muslims as “enemies of civilization.”  He once wrote that, “The civilizations of Europe, America and Australia exist today at all only because of the victories of civilized man over the enemies of civilization,” praising Charles Martel and John Sobieski for throwing back the “Moslem conquerors.”

In 1917, Congress passed the Immigration Act of 1917 (aka, the Literacy Act or the Asiatic Barred Zone Act). In addition to barring “homosexuals”, “idiots”, “feeble-minded persons”, “criminals”, “epileptics”, “insane persons”, alcoholics, “professional beggars”, all persons “mentally or physically defective,” polygamists, anarchists, and people over the age of 16 who were illiterate, this act barred immigration from Southeast Asia, India, and the Middle East.

Presidential Proclamations 2525, 2526, and 2527 were signed by President Franklin D. Roosevelt shortly after the attack on Pearl Harbor. Citing the Alien and Sedition Acts as precedence, these proclamations restricted the entry and naturalization of Japanese, Germans, and Italians respectively. Later, FDR would bar entry into the US of the Jews who were seeking asylum from the genocidal Nazi regime.

During the Iranian hostage crisis in 1979, President Jimmy Carter issued a number of orders to put pressure on Iran. In particular, he issued a pair of orders:  One was an order for Iranian students to report to immigration offices in order to determine if they had violated the terms of their visa; if they had, they would be deported. The second was an order to end all future visas for Iranians and to stop issuing most new visas.  Carter ordered administration officials to “invalidate all visas issued to Iranian citizens for future entry into the United States, effective today. We will not reissue visas, nor will we issue new visas, except for compelling and proven humanitarian reasons or where the national interest of our own country requires. This directive will be interpreted very strictly.”

On December 12, 1979, a federal judge, Joyce Hens Green, initially ruled the order unconstitutional, but her ruling was reversed on appeal.  On Sept. 22, 1980, the Times, citing an Immigration and Naturalization Service spokesman, reported that by that date, nearly 60,000 students had registered as required, about 430 had been deported and 5,000 had left voluntarily.

In October 1985, President Ronald Reagan temporarily barred entry to officers or employees of the Cuban government or the Communist Party of Cuba who held diplomatic or official passports. Focused on stamping out communism, he also targeted officers of the Cuban-backed Nicaraguan government and the ruling Sandinista National Liberation Front.

As mentioned above, President George H. Bush used the provision (8 USC §1182) only once. His sole use of the provision followed a 1991 a coup in Haiti that spurred thousands of people to flee on rickety boats and head for the U.S. Hundreds died at sea, but many were rescued, overwhelming processing centers set up at the U.S. Naval Base at Guantanamo Bay, Cuba, and aboard Coast Guard cutters. Rather than allow Haitians to enter the United States and be screened, Bush issued an order “to enforce the suspension of the entry of undocumented aliens by sea and the interdiction of any covered vessel carrying such aliens,” allowing the U.S. to intercept the boats and send the migrants back.

President Obama turned to the provision more than any other recent president, using it to bar people who conducted certain transactions with North Korea, engaged in cyberattacks aimed at undermining democracy, or contributed to the destabilization of Libya, Burundi, Central African Republic or Ukraine. His broadest application of the law came in 2011, when he suspended entry of foreigners “who participate in serious human rights and humanitarian law violations and other abuses,” including “widespread or systemic violence against any civilian population” based on, among other factors, race, color, disability, language, religion, ethnicity, political opinion, national origin, sexual orientation or gender identity.  Obama has also used the law to block anybody involved in “grave human rights abuses by the governments of Iran and Syria…..”

President Bill Clinton used the law to block perpetrators in the ethnic conflicts that erupted in the former Yugoslavia in the 1990s, targeting people responsible for the repression of civilians in Kosovo, along with those obstructing democracy in Yugoslavia or lending support to the Yugoslav government and the Republic of Serbia. In 1994, he also suspended individuals and their immediate family members who were said to formulate, implement, or benefit from policies that impeded war-torn Liberia’s transition to democracy. Similar suspensions were imposed on conflict-ravaged Sierra Leone in 2000.

President George W. Bush temporarily barred foreign government officials who were responsible for failing to combat human trafficking. He also blocked those whose actions threatened Zimbabwe’s democratic institutions and transition to a multiparty democracy. Amid concerns that Syria was fomenting instability in Lebanon, Syrian and Lebanese officials deemed responsible for policies or actions that threatened Lebanon’s sovereignty were also barred from entering the U.S.

To re-cap, several US presidents have banned aliens and have, in fact, targeted certain aliens in particular. Chinese were banned by Chester A. Arthur (ethnic class). Teddy Roosevelt banned anarchists (political). FDR banned Jews and Jimmy Carter banned Iranians (because of the Embassy takeover). Ronald Reagan banned Cubans (ethnic class). Clinton banned junta members of Sierra Leone and Haiti (politics). George Bush banned government officials from Zimbabwe and Belarus (politics). Even Obama banned people from Iraq.

IV. Sovereignty –

“A country that can no longer say who can, and who cannot, come in is no longer sovereign. A government that can no longer control immigration is no longer a legitimate government.”

Sovereignty is an important concept and probably the one most ignored in this current debate on the Executive Order’s temporary travel ban (from aliens from terrorist nations).

Sovereignty refers to the authority of a state to govern itself and to make all necessary laws and policies for the benefit of its physical jurisdiction and for its citizens. It’s most critical function is to keep the state safe and secure and to ensure its continued existence as an independent state. In other words, its most important function is national security. Immigration is intimately tied to the function of national security.

National security is a concept that a government, along with its parliaments, should protect the state and its citizens against all kind of “national” crises through a variety of power projections, such as political power, diplomacy, economic power, military might, and so on.

The Heritage Foundation published an excellent overview of the responsibility of the federal government in providing national security. The article explains:

Those who have not done so recently would benefit from studying what the United States Constitution says about the federal government’s responsibility to provide for the common defense. Most Americans had to memorize the preamble to the Constitution when they were children, so they are aware that one of the purposes of the document was to “provide for the common defense.” But they are not aware of the extent to which the document shows the Founders’ concern for national security.

In brief, the Constitution says three things about the responsibility of the federal government for the national defense.

National defense is the priority job of the national government. Article I, Section 8 of the Constitution lists 17 separate powers that are granted to the Congress. Six of those powers deal exclusively with the national defense—far more than any other specific area of governance—and grant the full range of authorities necessary for establishing the defense of the nation as it was then understood. Congress is given specific authority to declare war, raise and support armies, provide for a navy, establish the rules for the operation of American military forces, organize and arm the militias of the states, and specify the conditions for converting the militias into national service.

Article II establishes the President as the government’s chief executive officer. Much of that Article relates to the method for choosing the President and sets forth the general executive powers of his office, such as the appointment and veto powers. The only substantive function of government specifically assigned to the President relates to national security and foreign policy, and the first such responsibility granted him is authority to command the military; he is the “Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.”

National defense is the only mandatory function of the national government. Most of the powers granted to Congress are permissive in nature. Congress is given certain authorities but not required by the Constitution to exercise them. For example, Article I, Section 8 gives Congress power to pass a bankruptcy code, but Congress actually did not enact bankruptcy laws until well into the 19th century. But the Constitution does require the federal government to protect the nation. Article 4, Section 4 states that the “United States shall guarantee to every State a republican form of government and shall protect each of them against invasion.” In other words, even if the federal government chose to exercise no other power, it must, under the Constitution, provide for the common defense.

National defense is exclusively the function of the national government. Under our Constitution, the states are generally sovereign, which means that the legitimate functions of government not specifically granted to the federal government are reserved to the states. But Article I, Section 10 does specifically prohibit the states, except with the consent of Congress, from keeping troops or warships in time of peace or engaging in war, the only exception being that states may act on their own if actually invaded. (This was necessary because, when the Constitution was written, primitive forms of communication and transportation meant that it could take weeks before Washington was even notified of an invasion.)

In discussing the topic of national security, it is important to understand some of the concepts that the term incorporates.

The first is the concept of power. It can best be defined as a nation’s possession of control of its sovereignty and destiny. It implies some degree of control of the extent to which outside forces can harm the country. Hard, or largely military, power is about control, while soft power is mainly about influence—trying to persuade others, using methods short of war, to do something.

Instruments of power exist along a spectrum, from using force on one end to diplomatic means of persuasion on the other. Such instruments include the armed forces; law enforcement and intelligence agencies; and various governmental agencies dedicated to bilateral and public diplomacy, foreign aid, and international financial controls. Variables of power include military strength, economic capacity, the will of the government and people to use power, and the degree to which legitimacy—either in the eyes of the people or in the eyes of other nations or international organizations—affects how power is wielded. The measure of power depends not only on hard facts, but also on perceptions of will and reputation.

Another term to understand properly is military strength. This term refers to military capacity and the capabilities of the armed forces, and it is a capacity that may not actually be used. It often is understood as a static measure of the power of a country, but in reality, military strength is a variable that is subject to all sorts of factors, including the relative strength of opponents, the degree to which it is used effectively, or whether it is even used at all.

Force is the use of a military or law enforcement capacity to achieve some objective. It is the actual use of strength and should not be equated with either strength or power per se. Using force unwisely or unsuccessfully can diminish one’s power and strength. By the same token, using it effectively can enhance power. Force is an instrument of power just as a tool or some other device would be, but unlike institutional instruments like the armed forces, its use in action is what distinguishes it from static instruments of strength like military capacity. Thus, force should be understood narrowly as an applied instrument of coercion.

Finally, there is national defense. Strictly speaking, this refers to the ability of the armed forces to defend the sovereignty of the nation and the lives of its people; however, since the attacks of September 11, 2001, the mission of homeland security—using domestic as well as military instruments to defend the nation from terrorist and other attacks either inside or outside the country—has come to be understood as an element of national defense.

V. The War on Terror and the President as Commander-in-Chief –

On September 11, 2001, 19 militants associated with the Islamic extremist group al-Qaeda hijacked four airliners and carried out suicide attacks against targets in the United States. Two of the planes were flown into the towers of the World Trade Center in New York City, a third plane hit the Pentagon just outside Washington, D.C., and the fourth plane crashed in a field in Pennsylvania. Over 3,000 people were killed horrifically, including more than 400 police officers and firefighters. The Twin Towers collapsed, several surrounding buildings collapsed as well, and one section of the Pentagon was destroyed. Just like the attack on Pearl Harbor, it was a day that will live in infamy. It will continue to define certain human beings, certain groups, a fanatic religious ideology as pure evil.

[Osama bin Laden would issue a “Letter to America” in November 2002, explicitly stating that al-Qaeda’s motives for their attacks included: US support of Israel, support for the “attacks against Muslims” in Somalia, support of Philippines against Muslims in the Moro conflict, support for Israeli “aggression” against Muslims in Lebanon, support of Russian “atrocities against Muslims” in Chechnya, pro-American governments in the Middle East (who “act as your agents”) being against Muslim interests, support of Indian “oppression against Muslims” in Kashmir, the presence of U.S. troops in Saudi Arabia, and sanctions against Iraq].

As the dust barely settled in lower Manhattan on 9/11. President Bush addressed the American people and the world. He said: “Today, our fellow citizens, our way of life, our very freedom came under attack in a series of deliberate and deadly terrorist acts. The victims were in airplanes or in their offices — secretaries, businessmen and women, military and federal workers. Moms and dads. Friends and neighbors. Thousands of lives were suddenly ended by evil, despicable acts of terror. The pictures of airplanes flying into buildings, fires burning, huge structures collapsing, have filled us with disbelief, terrible sadness and a quiet, unyielding anger. These acts of mass murder were intended to frighten our nation into chaos and retreat. But they have failed. Our country is strong. A great people has been moved to defend a great nation. Today, our nation saw evil, the very worst of human nature, and we responded with the best of America, with the daring of our rescue workers, with the caring for strangers and neighbors who came to give blood and help in any way they could. The search is underway for those who are behind these evil acts. I’ve directed the full resources for our intelligence and law enforcement communities to find those responsible and bring them to justice. We will make no distinction between the terrorists who committed these acts and those who harbor them.”

In the months that followed, the US learned just how barbaric the attackers are. On January 23, 2002, Daniel Pearl, a reporter with the Wall Street Journal, left his apartment in Karachi, Pakistan for an interview. He had temporarily set up a residence in Karachi to report on America’s War on Terror. He was following a lead. He would never return that day. He was kidnapped and beheaded, with the captors turning over a 3-minute videotape of his grisly demise. President Bush watched the video. After the severed Pearl’s head, they cut up his body into ten pieces and put it into the shopping bags. They walked around with the bags to find a place to bury them, until they finally dug a hole just outside the building where he was killed. The floor of the room was then washed and they held sunset prayer there.

Months later, the US would articulate a new national security policy which would become known as the Bush Doctrine. The Bush doctrine signaled a radical break from previous national security strategies and fundamentally changed the way the US would act toward the rest of the world; the era of deterrence and containment was over. Deterrence and containment defined US policy at the end of 1945 and into the Cold War. The Bush Doctrine, defined in the positional paper “The National Security Strategy of the United States,” which was written by President Bush and the State Department (September 2002), was the answer to terrorism. As outlined in this paper, post-9/11 US foreign policy rests on three main pillars: a doctrine of unrivaled military supremacy, the concept of preemptive or preventive war, and a willingness to act unilaterally if multilateral cooperation cannot be achieved. President Bush argued that the new policy was necessary to prevent the proliferation of weapons of mass destruction among rogue states and terrorist groups. The policy of deterrence, he maintained, was no longer sufficient to prevent a rogue nation or terrorist organization from using nuclear, chemical, or biological weapons. He explained: “Given the goals of rogue states and terrorists, the United States can no longer solely rely on a reactive posture as we have in the past. The inability to deter a potential attacker, the immediacy of today’s threats, and the magnitude of potential harm that could be caused by our adversaries’ choice of weapons, do not permit that option. We cannot let our enemies strike first. Traditional concepts of deterrence will not work against a terrorist enemy whose avowed tactics are wanton destruction and the targeting of innocents; whose so-called soldiers seek martyrdom in death and whose most potent protection is statelessness.”

On Sept. 14, 2001, the U.S. Congress in effect declared war when it passed the Authorization for Use of Military Force (AUMF) as a joint resolution. The vote was overwhelmingly one-sided. In the House, the vote was 420 Ayes, 1 Nay, and 10 Not Voting. In the Senate, the vote was 98 Ayes, 0 Nays, and 2 Present/Not Voting. Rep. Barbara Lee was the nay vote in the House.

The War Powers Resolution of 1973 requires the president of the United States to notify Congress within 48 hours of ordering US armed forces for a military operation overseas. Those forces cannot operate in a deployed status for more than 60 days. Combat military operations lasting longer than that time frame require a congressional Declaration of War OR an Authorization for the Use of Military Force. Bush almost unanimously got that AUMF from Congress in 2001 when he declared the war on terrorism.

The 2001 AUMF passed by Congress in the wake of the September 11 attacks authorized the President to use force, if necessary, to seek retribution (seek justice) for the attacks on 9/11. Specifically, the AUMF states: “The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.” In other words, with the AUMF, the President has been given a free hand in conducting the War on Terrorism and also in identifying the “enemy” or “enemies.” All he has to do his tie a person to an “organization” such as al-Qaeda and make a case that the person in some way “aided” the terrorists or will pose a threat by possibly or potentially engaging in future terrorist acts. [Note: There is no exception made for American citizens. There is no distinction between persons on American soil or in other countries].

The AUMF is the legal justification for the War on Terrorism. It authorizes military operations on a broad scope and in ways to be determined by the President. It elevates the president to Commander-in-chief. It has been used as the legal justification for American military action against al-Qaeda terrorists anywhere in the world, and as the legal justification for the continuing War on Terrorism. It is inconceivable that a court, let alone the highest court in the land – the Supreme Court, would overturn the power to declare war that is vested in the Congress. Congress alone has the power to declare war. It is a power explicitly and expressly delegated to the Congress in Article I of the US Constitution. Article I, Section 8, Clause 11, sometimes referred to as the War Powers Clause, vests in the Congress the power to declare war, in the following wording: “The Congress shall have Power…. To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.” Congress need not know the details of the war or how the President intends to “command” the war effort; the details do not necessarily limit the declaration of war. It is the declaration or the Authorization for Use of Military Force that establishes that the country is at war. A government during peacetime is much different from a government in time of war. [See Federalist No. 45, written by James Madison]

Congress controls the decision to wage war in another way. It provides the funding. Congress funds the war. And without fail, Congress has provided funding for the War on Terror since 2001. Again, once the country is at war, the president assumes almost plenary war powers (consistent with the Constitution, of course) and the nation goes into self-preservation and survival mode. In 2002, President Bush asked Congress for a separate Authorization for the Use of Military Force (AUMF) for the Iraqi War, which he received.

In 2012, Congress passed the National Defense Authorization Act, which, like other versions of the bill before it, specified the budget and expenditures of the US Dept. of Defense. A version of the bill had passed for 55 years. However, this bill was a bit different. It contained provisions that many found extremely troubling.

The most controversial provisions were contained in subsections 1021–1022 of Title X, Subtitle D, entitled “Counter-Terrorism,” which declared that the “battlefield” in the War on Terror also included the United States itself. It authorized the indefinite military detention of persons the government suspects of involvement in terrorism, including US citizens (termed “belligerents”) arrested on American soil.

Section 1021 of the NDAA reads:

SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
(a) In General- Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107-40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war.
(b) Covered Persons- A covered person under this section is any person as follows:
(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.

(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
(c) Disposition Under Law of War- The disposition of a person under the law of war as described in subsection (a) may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
(2) Trial under chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111-84)).
(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
(4) Transfer to the custody or control of the person’s country of origin, any other foreign country, or any other foreign entity.

With the NDAA, which has been re-upped for fiscal year 2017, we see the president enlarging his war powers. We see that he acknowledges that the war on terror has already come to our homeland.

In 2014, ISIS (The Islamic State) was gaining power and President Obama lacked a strategy to deal with it. At the end of the year, House Speaker John Boehner advised: “I would urge the president to submit a new Authorization for Use of Military Force (AUMF) regarding our efforts to defeat and to destroy ISIL.” In that demand, Boehner was echoing constitutional scholar and then-presidential hopeful, Senator Ted Cruz and strict constitutionalist Rand Paul. Senator Cruz asserted that “initiating new military hostilities in a sustained basis in Iraq obligates the president to go back to Congress and to make the case to seek congressional authorization” and Senator Rand Paul said, “I believe the President must come to Congress to begin a war and that Congress has a duty to act. Right now, this war is illegal until Congress acts pursuant to the Constitution and authorizes it.” And so, in February 2015, President Obama asked Congress for that authorization. The US had already been bombing ISIS for six months. Ignoring the advice of Boehner, Cruz, and Paul, the White House claimed it already enjoyed the legal right to wage war under the 2001 AUMF and thus didn’t need the new authorization. But still, the White House went ahead and asked. It’s proposed AUMF would authorize force against ISIS, but only for three years. Congress never granted that AUMF, but it did go ahead and fund military actions.

Again, we note that the War on Terror is enlarging and in fact, as we learn from the events unfolding in the Middle East, the terrorist network is organizing, gaining power, and poised take over several regions. We see and that the United States is still very much determined to contain the growing evil that threatens the freedom and security of her citizens and of the world.

VI. The Korematsu v. United States decision (1944) –

The Korematsu case famously addresses the constitutionality of Japanese internment in the wake of the attack on Pearl Harbor by the empire of Japan. It addressed the war powers of Congress and the war powers of the President, as Commander-in-chief. The opinion, written by justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent, and that the validity of action under the war power must be judged wholly in the context of war. He argued that compulsory exclusion, though constitutionally suspect, is justified during circumstances of “emergency and peril.”

The case upheld a law excluding certain Americans (American citizens, to be clear) from areas in the United States on account of national security. It found that although there was discrimination on account of nationality, which would subject that law to the most stringent of judicial scrutiny, the policy survived that scrutiny because national security required it.

We cannot forget that our country suffered an attack perhaps more horrific than Pearl Harbor on 9/11, as ordinary citizens were targeted in skyscrapers rather than military personnel. And although President Bush and his Homeland Security Department managed to keep us safe in our homeland during his two terms, President Obama and his Homeland Security team could not. In fact, as the world seemed to explode in Islamic attacks, so did our country. It seems quite clear to most people that terrorism is on the rise and that we need to ramp up both our offense and defense in this War on Terrorism.

The opinion of the Court, as delivered by Justice Hugo Black (appointed by FDR):

The petitioner, an American citizen of Japanese descent, was convicted in a federal district court for remaining in San Leandro, California, a “Military Area,” contrary to Civilian Exclusion Order No. 34 of the Commanding General of the Western Command, U.S. Army, which directed that, after May 9, 1942, all persons of Japanese ancestry should be excluded from that area. No question was raised as to petitioner’s loyalty to the United States. The Circuit Court of Appeals affirmed, and the importance of the constitutional question involved caused us to grant certiorari.

It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.

In the instant case, prosecution of the petitioner was begun by information charging violation of an Act of Congress, of March 21, 1942, 56 Stat. 173, which provides that:

…..whoever shall enter, remain in, leave, or commit any act in any military area or military zone prescribed, under the authority of an Executive order of the President, by the Secretary of War, or by any military commander designated by the Secretary of War, contrary to the restrictions applicable to any such area or zone or contrary to the order of the Secretary of War or any such military commander, shall, if it appears that he knew or should have known of the existence and extent of the restrictions or order and that his act was in violation thereof, be guilty of a misdemeanor and upon conviction shall be liable to a fine of not to exceed $5,000 or to imprisonment for not more than one year, or both, for each offense.

Exclusion Order No. 34, which the petitioner knowingly and admittedly violated, was one of a number of military orders and proclamations, all of which were substantially based upon Executive Order No. 9066, 7 Fed.Reg. 1407. That order, issued after we were at war with Japan, declared that “the successful prosecution of the war requires every possible protection against espionage and against sabotage to national defense material, national defense premises, and national defense utilities….”

One of the series of orders and proclamations, a curfew order, which, like the exclusion order here, was promulgated pursuant to Executive Order 9066, subjected all persons of Japanese ancestry in prescribed West Coast military areas to remain in their residences from 8 p.m. to 6 a.m. As is the case with the exclusion order here, that prior curfew order was designed as a “protection against espionage and against sabotage.” In Hirabayashi v. United States, 320 U.S. 81 (1943), we sustained a conviction obtained for violation of the curfew order. The Hirabayashi conviction and this one thus rest on the same 1942 Congressional Act and the same basic executive and military orders, all of which orders were aimed at the twin dangers of espionage and sabotage.

The 1942 Act was attacked in the Hirabayashi case as an unconstitutional delegation of power; it was contended that the curfew order and other orders on which it rested were beyond the war powers of the Congress, the military authorities, and of the President, as Commander in Chief of the Army, and, finally, that to apply the curfew order against none but citizens of Japanese ancestry amounted to a constitutionally prohibited discrimination solely on account of race. To these questions, we gave the serious consideration which their importance justified. We upheld the curfew order as an exercise of the power of the government to take steps necessary to prevent espionage and sabotage in an area threatened by Japanese attack.

In the light of the principles, we announced in the Hirabayashi case, we are unable to conclude that it was beyond the war power of Congress and the Executive to exclude those of Japanese ancestry from the West Coast war area at the time they did.True, exclusion from the area in which one’s home is located is a far greater deprivation than constant confinement to the home from 8 p.m. to 6 a.m. Nothing short of apprehension by the proper military authorities of the gravest imminent danger to the public safety can constitutionally justify either. But exclusion from a threatened area, no less than curfew, has a definite and close relationship to the prevention of espionage and sabotage. The military authorities, charged with the primary responsibility of defending our shores, concluded that curfew provided inadequate protection and ordered exclusion. They did so, as pointed out in our Hirabayashi opinion, in accordance with Congressional authority to the military to say who should, and who should not, remain in the threatened areas.

In this case, the petitioner challenges the assumptions upon which we rested our conclusions in the Hirabayashi case. He also urges that, by May, 1942, when Order No. 34 was promulgated, all danger of Japanese invasion of the West Coast had disappeared. After careful consideration of these contentions, we are compelled to reject them.

Here, as in the Hirabayashi case:

….. we cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that, in a critical hour, such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety which demanded that prompt and adequate measures be taken to guard against it.

Like curfew, exclusion of those of Japanese origin was deemed necessary because of the presence of an unascertained number of disloyal members of the group, most of whom we have no doubt were loyal to this country. It was because we could not reject the finding of the military authorities that it was impossible to bring about an immediate segregation of the disloyal from the loyal that we sustained the validity of the curfew order as applying to the whole group. In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin. That there were members of the group who retained loyalties to Japan has been confirmed by investigations made subsequent to the exclusion. Approximately five thousand American citizens of Japanese ancestry refused to swear unqualified allegiance to the United States and to renounce allegiance to the Japanese Emperor, and several thousand evacuees requested repatriation to Japan.

We uphold the exclusion order as of the time it was made and when the petitioner violated it. In doing so, we are not unmindful of the hardships imposed by it upon a large group of American citizens. Hardships are part of war, and war is an aggregation of hardships. All citizens alike, both in and out of uniform, feel the impact of war in greater or lesser measure. Citizenship has its responsibilities, as well as its privileges, and, in time of war, the burden is always heavier. Compulsory exclusion of large groups of citizens from their homes, except under circumstances of direst emergency and peril, is inconsistent with our basic governmental institutions. But when, under conditions of modern warfare, our shores are threatened by hostile forces, the power to protect must be commensurate with the threatened danger.

It is argued that, on May 30, 1942, the date the petitioner was charged with remaining in the prohibited area, there were conflicting orders outstanding, forbidding him both to leave the area and to remain there. Of course, a person cannot be convicted for doing the very thing which it is a crime to fail to do. But the outstanding orders here contained no such contradictory commands.

There was an order issued March 27, 1942, which prohibited petitioner and others of Japanese ancestry from leaving the area, but its effect was specifically limited in time “until and to the extent that a future proclamation or order should so permit or direct.” 7 Fed.Reg. 2601. That “future order,” the one for violation of which petitioner was convicted, was issued May 3, 1942, and it did “direct” exclusion from the area of all persons of Japanese ancestry before 12 o’clock noon, May 9; furthermore, it contained a warning that all such persons found in the prohibited area would be liable to punishment under the March 21, 1942, Act of Congress. Consequently, the only order in effect touching the petitioner’s being in the area on May 30, 1942, the date specified in the information against him, was the May 3 order which prohibited his remaining there, and it was that same order which he stipulated in his trial that he had violated, knowing of its existence. There is therefore no basis for the argument that, on May 30, 1942, he was subject to punishment, under the March 27 and May 3 orders, whether he remained in or left the area.

It does appear, however, that, on May 9, the effective date of the exclusion order, the military authorities had already determined that the evacuation should be effected by assembling together and placing under guard all those of Japanese ancestry at central points, designated as “assembly centers,” in order to insure the orderly evacuation and resettlement of Japanese voluntarily migrating from Military Area No. 1, to restrict and regulate such migration.

Public Proclamation No. 4, 7 Fed.Reg. 2601. And on May 19, 1942, eleven days before the time petitioner was charged with unlawfully remaining in the area, Civilian Restrictive Order No. 1, 8 Fed.Reg. 982, provided for detention of those of Japanese ancestry in assembly or relocation centers. It is now argued that the validity of the exclusion order cannot be considered apart from the orders requiring him, after departure from the area, to report and to remain in an assembly or relocation center. The contention is that we must treat these separate orders as one and inseparable; that, for this reason, if detention in the assembly or relocation center would have illegally deprived the petitioner of his liberty, the exclusion order and his conviction under it cannot stand.

We are thus being asked to pass at this time upon the whole subsequent detention program in both assembly and relocation centers, although the only issues framed at the trial related to petitioner’s remaining in the prohibited area in violation of the exclusion order. Had petitioner here left the prohibited area and gone to an assembly center, we cannot say, either as a matter of fact or law, that his presence in that center would have resulted in his detention in a relocation center. Some who did report to the assembly center were not sent to relocation centers, but were released upon condition that they remain outside the prohibited zone until the military orders were modified or lifted. This illustrates that they pose different problems, and may be governed by different principles. The lawfulness of one does not necessarily determine the lawfulness of the others. This is made clear when we analyze the requirements of the separate provisions of the separate orders. These separate requirements were that those of Japanese ancestry (1) depart from the area; (2) report to and temporarily remain in an assembly center; (3) go under military control to a relocation center, there to remain for an indeterminate period until released conditionally or unconditionally by the military authorities. Each of these requirements, it will be noted, imposed distinct duties in connection with the separate steps in a complete evacuation program. Had Congress directly incorporated into one Act the language of these separate orders, and provided sanctions for their violations, disobedience of any one would have constituted a separate offense. There is no reason why violations of these orders, insofar as they were promulgated pursuant to Congressional enactment, should not be treated as separate offenses.

Some of the members of the Court are of the view that evacuation and detention in an Assembly Center were inseparable. After May 3, 1942, the date of Exclusion Order No. 34, Korematsu was under compulsion to leave the area not as he would choose, but via an Assembly Center. The Assembly Center was conceived as a part of the machinery for group evacuation. The power to exclude includes the power to do it by force if necessary. And any forcible measure must necessarily entail some degree of detention or restraint, whatever method of removal is selected. But whichever view is taken, it results in holding that the order under which petitioner was convicted was valid.

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Justice Felix Frankfurter concurred in the opinion. He wrote: The provisions of the Constitution which confer on the Congress and the President powers to enable this country to wage war are as much part of the Constitution as provisions looking to a nation at peace. And we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is “the power to wage war successfully.” Hirabayashi v. United States. Therefore, the validity of action under the war power must be judged wholly in the context of war.

The Korematsu decision has not been overturned. It is still good precedent.

While there are some who think Korematsu was a bad decision, Supreme Court great William Rehnquist thinks differently. In his 1998 book All the Laws But One – Civil Liberties in Wartime, he wrote: “An entirely separate and important philosophical question is whether occasional presidential excesses and judicial restraint in wartime are desirable or undesirable. In one sense, this question is very largely academic. There is no reason to think that future wartime presidents will act differently from Lincoln, Wilson, or Roosevelt, or that future Justices of the Supreme Court will decide questions differently than their predecessors.”

VI. Kerry v. Din (2015) —

The Kerry v. Din case is a recent case which speaks to the rights that foreign nationals are entitled to with respect to coming to the United States, and particularly when they come from a country that has a history of terrorism. If a person believes he or she has a right to something, such as “Life, Liberty, or Property,” then a violation of such, including imprisonment, confiscation, condemnation, a denial of an essential liberty right, triggers Due Process rights (that is, a process to challenge that denial under our constitution). When Due Process is violated, then there is potential Due Process violation, challengeable under the 5th amendment or 14th amendment (depending whether the denial is by the federal government or the state, respectively). In Kerry, the Supreme Court held: “No Due Process is owed when these interests are not at stake.” A foreign national (non-US citizen, not living in the US) is not entitled to a Due Process challenge because he has no rights that are respected by the US Constitution. Furthermore, he has no standing to bring suit in the United States for such a violation.

The case concerns a US citizen who married a citizen and resident of Afghanistan (that is, citizen of the latter). Fauzia Din, who is a United States citizen, filed a visa petition for her husband Kanishka Berashk, a citizen and resident of Afghanistan. She wanted to bring him to the United States. Nine months later, the State Department denied the petition based on a broad provision of the Immigration and Nationality Act that excludes aliens on terrorism-related grounds. Berashk asked for clarification of the visa denial and was told that it is not possible for the Embassy to provide him with a detailed explanation of the reasons for denial.

After several other unsuccessful attempts to receive explanation of the visa denial, Din sued and argued that denying notice for aliens who were not granted a visa based on terrorism grounds is unconstitutional. The federal district court held that Din did not have standing to challenge the visa denial notice. The US Court of Appeals for the Ninth Circuit reversed and held that the government is required to give notice of reasons for visa denial based on terrorism grounds. The Ninth Circuit held two things: (1) that a U.S. citizen has a protected liberty interest in her marriage that entitled her to review of the denial of a visa to her non-U.S.-citizen spouse, and (2) that the US government deprived her of that liberty interest when it denied the spouse’s visa application without providing a more detailed explanation of its reasons.

The case was appealed to the Supreme Court in 2013 and was decided in 2015. The question presented was this: “Is the government required to give a detailed explanation for denying an alien’s visa based on terrorism-related ground under the Immigration and Nationality Act?”

In a 5-4 decision for Kerry, delivered by the late Justice Antonin Scalia, the Supreme Court held that Mrs. Din was not deprived of any constitutional rights in the due process of law by denying a full explanation of why an alien’s visa was denied. The Due Process Clause of the Fifth Amendment states that no citizen may be deprived of “life, liberty, or property” without due process, but judicial precedent has held that no due process is owed when these interests are not at stake. Because none of these interests are implicated in the denial of a nonresident alien’s visa application, there is no denial of due process when the visa application is rejected without explanation. Although “liberty” has been construed to refer to fundamental rights, there is no precedent that supports the contention that the right to live with one’s spouse is such a fundamental right.

The Court agreed with Secretary John Kerry (State Department) that the U.S. has never recognized a liberty interest in having a citizen’s alien spouse admitted to the U.S, and that Congress has plenary power to deny admission. As Scalia wrote: “Neither Din’s right to live with her spouse nor her right to live within this country is implicated here. There is a “simple distinction between government action that directly affects a citizen’s legal rights, or imposes a direct restraint on his liberty, and action that is directed against a third party and affects the citizen only indirectly or incidentally.” The Government has not refused to recognize Din’s marriage to Berashk, and Din remains free to live with her husband anywhere in the world that both individuals are permitted to reside. And the Government has not expelled Din from the country. It has simply determined that Kanishka Berashk engaged in terrorist activities within the meaning of the Immigration and Nationality Act, and has therefore denied him admission into the country.”

The Court further analyzed whether procedural due process requires consular officials to give notice of reasons for denying a visa application. In Justice Anthony Kennedy’s concurring opinion, he wrote: “Notice requirements do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.” Because the consular officials satisfied notice requirements, there was no need for the Court to address the constitutional question about the right to live with one’s spouse. Furthermore, Kennedy reasoned that because the decision was made based on a “facially legitimate and bona fide reason,” the courts need not look any further, especially when national security is involved. He wrote that notice requirements “do not apply when, as in this case, a visa application is denied due to terrorism or national security concerns.”

VIII. No Discrimination –

The Left and the media has been misrepresenting President Trump’s Executive Order on immigration and refugee admission as a “Muslim ban” – or, more cleverly, a ban on immigration from “Muslim-majority countries.” In truth, the ban applies to everyone from the countries of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen – Muslim, Christian, whatever. In fact, one of the first families caught at the airport when the executive order went into effect was a Christian family from Syria.

These seven nations were not chosen at random. They were all singled out as exceptional security risks in the Terrorist Prevention Act of 2015 and its 2016 extension. In fact, President Trump’s order does not even name the seven countries. It merely refers to the sections of U.S. Code that were changed by the Terrorist Prevention Act, signed by President Obama in 2015 and then extended in 2016.

The list of seven nations which was compiled by Obama’s Department of Homeland Security, actually goes back to Obama’s first term, around 2011. Obama made this list, not Donald Trump, and there was very little resistance from congressional Democrats at any step in the process singling out these countries for the potential danger they pose (or for the inability to provide adequate information on their citizens). And that speaks volumes. There was no resistance because the list was perfectly sensible.

Again, on its face, the Executive Order is neutral. Only the Left reads discrimination into it. Only the Left puts the concerns and rights of non-citizens above those of citizens.

But even if the travel ban were discriminatory, the Supreme Court, in Korematsu, explained how we assess its constitutionality or lack thereof. Justice Black wrote: “It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” In other words, the burden on civil liberties is to be balanced with the public necessity. The burden may also be balanced with the severity of the threat to national security. In short, we have to ensure that government strikes the proper balance between liberty and security, with the greater weight placed properly. A nation devoted to the liberties of its citizens can only live up to those promises as long as it continues to exist. If the nation is cannibalized by the very freedoms that it seeks to protect so that its very existence is threatened, then no one’s rights are secure. Liberty no longer has a safe haven.

If we were to balance the burden on civil liberties by the burden placed on non-citizens (who arguably have no entitlement or right to come here to the United States), in the balancing test outlined by the Supreme Court (aka, “strict scrutiny”), we would need to balance that burden by the need to protect our country and its citizens from the violent attacks that are occurring, and occurring at a greatly increased frequency, by persons of one particular religious sect (or ideology). By all accounts, those seeking to do harm to us (“Death to America!”) will seek to slip into the country through the refugee and relocation programs. We then need to evaluate that burden and ask if it is reasonable and whether there are other less burdensome policies to achieve the same result. Is a 90-day temporary ban reasonable? Is it reasonable to require those seven countries listed in the Executive Order to comply with a request from our State Department and Homeland Security Department to provide reliable and verifiable information on its nationals so that the United States can properly assess and vet these individuals for entry into our cities and communities?

We are not talking about the issue of whether non-citizens living in the United States should be recognized with similar rights as citizens (minus the right to vote and hold office). We are talking about the right to come here in the first place. The “right” of a foreigner to come here necessarily burdens the right of the government to control immigration and set policy for national security.

IX. No Right to Come Here —

It is settled jurisprudence that an unadmitted, non-resident alien has no right of entry into the United States and cannot challenge his denial of his visa application. In other words, he has no protections under our Constitution and no right to use it for purposes to sue. Simply put, he has no standing. [Kleindienst v. Mandel, 408 U.S. 753, cited on pg. 762 (1972)]

The decision of the Supreme Court in Kleindienst was delivered by Justice Harry Blackmun. In that decision, the Court noted Congress’ longstanding power to exclude aliens from the United States, and to set the terms and conditions of their entry. Through the Immigration and Nationality Act, Congress legitimately delegated to the executive the authority to waive a finding of inadmissibility. He described the historical pattern of increasing federal control on the admissibility of aliens, particularly regarding individuals with Communist affiliation or views. Justice Blackmun held that the Court would not intervene so long as the executive used its waiver power on the basis of a facially legitimate and bona fide reason. “In the exercise of Congress’ plenary power to exclude aliens or prescribe the conditions for their entry into this country, Congress in § 212(a)(28) of the Act has delegated conditional exercise of this power to the Executive Branch. When, as in this case, the Attorney General decides for a legitimate and bona fide reason not to waive the statutory exclusion of an alien, courts will not look behind his decision or weigh it against the First Amendment interests of those who would personally communicate with the alien.” At pp. 761-770.].

X. Standing –

The states of Washington and Minnesota alleged that it had standing to challenge the validity of President Trump’s Executive Order, claiming it would suffer irreparable injury. It alleged that the order was directed at the Muslim religion, that there have been no terrorist attacks in the United States from any persons from the countries listed in the ban which would make the religious targeting unconstitutional, and that to block Muslims from entering Washington would cause it irreparable injury. To be clear, the focus of the states’ legal challenge was the way the president’s Executive Order targeted Islam.

Michelle Bennett, lawyer for the federal government, criticized the judge’s issuing the TRO, claiming the states of Washington and Minnesota lack standing. She argues that the states can’t sue on behalf of citizens and the states and also questions the rationale for their particular claim that the ban would cause irreparable injury

What is “standing”?

“Standing” is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party’s participation in the case. In law, “standing” is the legal right to bring a lawsuit to court. Usually, it requires that the plaintiff, or the person who brings the case, has either been affected by the events in the case or will be imminently affected or harmed if the court does not address the problem. Standing is also affected by state or federal laws that apply to the events in the case, since some laws do not allow injured plaintiffs to sue certain defendants even if the plaintiff can demonstrate that she was injured by the defendant’s actions.

A plaintiff usually demonstrates that she has standing by including the following elements in her Complaint, which is the document that opens a lawsuit in court and gives the defendant some idea of what he’s being sued for. In order to show standing, most courts require the plaintiff to mention the following three things in the Complaint:

(i) Injury: The plaintiff must show either that she has been injured in a particular way or will be injured in a particular way if the court does not act to prevent it (this is the basis of many requests for injunctions). The injury can be physical, mental/emotional, financial, or an injury to one of the plaintiff’s civil rights, as long as it is a specific injury.
(ii) Causation: The plaintiff must show there’s some connection between the injury and the defendant’s actions or planned actions. In a Complaint, causation is usually shown by a single sentence linking the defendant’s acts to the plaintiff’s injury. Complicated questions involving cause in fact or proximate cause are usually saved for trial.
(iii) Addressability: The situation has to be one the court can fix in some way, whether it’s by issuing an injunction, ordering the defendant to pay damages, or by some other particular method.

In order to keep lawsuits focused on a plaintiff who was actually injured and a defendant who may be responsible, U.S. courts have, over the years, limited the kinds of cases a plaintiff has standing to bring.

Currently, a plaintiff does not have standing if any of the following are true:

(i) The plaintiff is a third party who was not injured herself, but is suing on behalf of someone who was injured. Exceptions to this rule include parents who sue on behalf of their injured children and legally-appointed guardians who sue on behalf of their wards. Courts have also allowed organizations to sue on behalf of their members in a few cases where it was obvious that all the members faced the same injury.
(ii) The plaintiff tries to sue on behalf of some large, unidentified group who may or may not be injured. Often called “taxpayer standing,” this rule prevents cases in which one plaintiff attempts to sue the government on the grounds that the plaintiff, a taxpayer, doesn’t like what the government is doing with tax revenues. So far, the only exception to this rule has been certain cases brought under the First Amendment Establishment Clause to prevent the government from funneling taxpayer dollars to particular religious institutions.

(iii) The plaintiff is not in the “zone of interest” or “zone of injury.” In other words, the plaintiff is not the kind of person a particular law was designed to protect, and/or the plaintiff is not the kind of person that lawmakers expected to be injured if they did not enact the law. For instance, a plaintiff who has severe dog allergies does not have standing to sue a dog owner for failing to license her dog, since “severe allergy attacks” were not the kind of injury the dog license law was designed to prevent, and “people with severe dog allergies” were not the kind of people the law is designed to protect. (A severe allergy sufferer may, however, have standing to sue a neighbor dog owner for nuisance or even assault if, for instance, the neighbor encourages the dog to approach the allergic plaintiff even though the neighbor knows this will make the plaintiff very ill and might even cause death.)

The state of Washington (and then Minnesota would join in) asserted it had standing to bring the challenge by claiming that the Order would “adversely affect the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” Furthermore, the states claimed that they would be harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. They claimed the harm is significant and ongoing. Judge Robart agreed with the states’ position.

In issuing the Temporary Restraining Order, Judge Robart wrote: “It is an interesting question in regards to the standing of the states to bring this action. I’m sure the one item that all counsel would agree on is that the standing law is a little murky. I find, however, that the state does have standing in regards to this matter, and therefore they are properly here. And I probed with both counsel my reasons for finding that, which have to do with direct, immediate harm going to the states, as institutions, in addition to harm to their citizens, which they are not able to represent as directly.”

On the same day that Judge Robart issued the TRO (February 4), the government submitted an Emergency Motion to the Court of Appeals for the Ninth Circuit requesting that the injunction (or TRO) to be vacated.

The government’s position is that the states of Washington and Minnesota lack standing and that they failed to make a legitimate showing of standing in their motion for the TRO. In its Emergency Motion to the Court of Appeals for the Ninth Circuit, the government asserted:

“The district court reasoned that the Washington has Article III standing because the Order “adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel,” and that these harms “extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” But a State cannot bring a parens patriae action against federal defendants. In dismissing Massachusetts’ challenge to a federal statute designed to “protect the health of mothers and infants” in Massachusetts v. Mellon, the Supreme Court explained that “it is no part of a State’s duty or power to enforce [its citizens’] rights in respect of their relations with the federal government.” 262 U.S. 447, 478, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966). The district court also reasoned that “the States themselves are harmed by virtue of the damage that implementation of the Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.” These attenuated and speculative alleged harms are neither concrete nor particularized. With respect to Washington’s public universities, most if not all of the students and faculty members the State identifies are not prohibited from entering the United States, and others’ alleged difficulties are hypothetical or speculative.

That is particularly true given the Order’s waiver authority. See Executive Order §§ 3(g), 5(e). Furthermore, any assertion of harm to the universities’ reputations and ability to attract students is insufficiently concrete for standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). And although Washington suggested that the Order might affect its recruitment efforts and child welfare system, it conceded that it could not identify any currently affected state employees, nor any actual impact on its child welfare system.

Washington’s contentions regarding its tax base and public funds are equally flawed. See Florida v. Mellon, 273 U.S. 12, 17-18 (1927) (finding no standing based on Florida’s allegation that challenged law would diminish tax base); see also, e.g., Iowa ex rel. Miller v. Block, 771 F.2d 347, 353 (8th Cir. 1985). Nor does Washington have any “legally protected interest,” Arizona Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 134 (2011), in the grant or denial of entry to an alien outside the United States. The INA’s carefully reticulated scheme provides for judicial review only at the behest of an alien adversely affected, and even then only if the alien is subject to removal proceedings, see 8 U.S.C. § 1252.

Under longstanding principles exemplified by the doctrine of consular non-reviewability, an alien abroad cannot obtain judicial review of the denial of a visa (or his failure to be admitted as a refugee). Brownell v. Tom We Shung, 352 U.S. 180, 184 (1956). It follows that a third party, like Washington, has no “judicially cognizable interest,” Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973), in such a denial. Or to put it in Administrative Procedure Act (APA) terms, review is precluded by the INA, the relevant determinations are committed to the Executive’s discretion (indeed, to the President, who is not subject to the APA), and Washington lacks a cause of action. 5 U.S.C. §§ 701(a), (702).”

The Ninth Circuit denied the government’s motion.

Did the Ninth Circuit engage in partisan politics by denying the government’s motion ?

XI. Conclusion —

In conclusion, in light of the government’s obligation to keep the country safe and secure, in light of its war powers, its powers with respect to immigration, foreign policy, and national security, and noting that the temporary ban is neutral with respect to the religion of the people impacted, the Executive Order should be upheld. Furthermore, even if the Order targets a class of persons, a balancing test will show that the temporary nature of the ban is more than reasonable in light of the threats posed by terrorists who may try to use the relocation efforts to gain access to the United States and do irreparable harm. Finally, the Executive Order is merely a reasonable expansion of a program that has already been in place under the previous administration.

References:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States” (Jan. 27, 2017). Referenced at: https://www.whitehouse.gov/the-press-office/2017/01/27/executive-order-protecting-nation- foreign-terrorist-entry-united-states

Temporary Restraining Order (Washington v. Donald Trump, President of the United States), issued by Judge Robart. https://www.documentcloud.org/documents/3446391-Robart-Order.html

The FEDRAL GOVERNMENT’S APPEAL: of The State of Wasington’s Emergency Motion for Administrative Stay and Motion for Stay Pending Appeal (State of Washington v. Donald Trump, President of the United States, in the US Circuit Court of Appeals for the Ninth Circuit) – http://www.politico.com/f/?id=0000015a-0c44-d96b-a7fe-1efdf8da0001

8 U.S. Code §1187 – Visa Waiver Program for Certain Visitors. Referenced at: https://www.law.cornell.edu/uscode/text/8/1187

Immigration and Nationality Act (INA). 8 U.S.C. 1187, Section 217 – VISA WAIVER 2/ PROGRAM FOR CERTAIN VISITORS. Referenced at: https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-4391.html

8 U.S Code Chapter 12: IMMIGRATION and NATURALIZATION – aka, The Immigration and Naturality Act of 1952. Referenced at: https://www.law.cornell.edu/uscode/text/8/chapter-12

“A Constitutional Basis for Defense,” The Heritage Foundation. Referenced at: http://www.heritage.org/defense/report/constitutional-basis-defense

Matthew I. Hirsch, “The Visa Waiver Program,” (8 U.S.C. 1187, Section 217: Visa. Waiver Waiver”) Referenced: http://hirschlaw1.com/wp-content/uploads/2012/07/website.aila_.visawaiver.pdf

John Howard, “The Seven Nations Covered by Trump’s Executive Order,” Breitbart, Jan. 30, 2017. Referenced at: http://www.breitbart.com/national-security/2017/01/30/7-nations-named-trump-executive-order-security-nightmares/

Korematsu v. United States, 323 U.S. 214 (1944). https://www.law.cornell.edu/supremecourt/text/323/214

Kerry v. Din, 576 U.S. ___ (2015). https://www.supremecourt.gov/opinions/14pdf/13-1402_e29g.pdf

Kleindienst v. Mandel, 408 U.S. 753 (1972). https://supreme.justia.com/cases/federal/us/408/753/case.html

Asra Q. Nomani, “This is Daniel Pearl’s Final Story,” Washingtonian. Referenced at: https://www.washingtonian.com/projects/KSM/

Sean Hannity, “There are Four Times the US Stopped Immigrants from a Particular Group.

Referenced at:  http://www.hannity.com/articles/immigration-487258/here-are-four-previous-times-the-14188916/

Daniel Greenfield, “When Roosevelt Banned Muslims from America,” Frontpagemag, August 18, 2016.  Referenced at:  http://www.frontpagemag.com/fpm/263879/when-teddy-roosevelt-banned-muslims-america-daniel-greenfield

Ann M. Simmons and Alan Zarembo, “Other Presidents Have Blocked Groups of Foreigners from the US, But Never So Broadly,” LA Times, January 31, 2017.  Referenced at:  http://www.latimes.com/nation/la-na-immigrant-ban-history-20170130-story.html

The Alien & Sedition Acts, Constitutional Rights Foundation.  Referenced at:  http://www.crf-usa.org/america-responds-to-terrorism/the-alien-and-sedition-acts.html

 

What is Standing? (Rottenstein Law Group). http://www.rotlaw.com/legal-library/what-is-standing/

Washington shopping mall mass shooter – an illegal immigrant (from a Muslim country) who voted 3 times. Referenced at: https://www.youtube.com/watch?v=0cDwCK3Dpcg [Published on Sep 28, 2016. A man who went on a shooting rampage in a store in the Cascade Mall in Burlington, Washington is in custody, accused of killing five people. The suspect, Arcan Cetin, a 20-year-old, is being charged with five counts of first-degree premeditated murder. There’s also another element to the story that could result in other charges for Cetin. The Cascade mall shooter isn’t a U.S. citizen, but voted in 3 election cycles. From King 5: The Cascade Mall shooting suspect, Arcan Cetin, may face an additional investigation related to his voting record and citizenship status. Federal sources confirm to KING 5 that Cetin was not a U.S. citizen, meaning legally he cannot vote. However, state records show Cetin registered to vote in 2014 and participated in three election cycles, including the May presidential primary. While voters must attest to citizenship upon registering online or registering to vote at the Department of Licensing Office, Washington state doesn’t require proof of citizenship. Therefore, elections officials say the state’s elections system operates, more or less, under an honor system. — Just a couple years ago, then-Attorney General Eric Holder said vote fraud was “a problem that doesn’t exist.” They operate on the honor system? What could go wrong? — That can’t be so. We’ve been assured voter fraud is a myth. The story doesn’t say who Cetin voted for. This story highlights that immigration laws and criminal laws aren’t the only laws that illegal immigrants break and are breaking. Why was FOX News the only national news organization covering this story?

Justice Jeanine Pirro (Justice with Jeanine) – https://www.youtube.com/watch?v=PSsjcLUM6xI

APPENDIX:

Executive Order: “Protecting the Nation from Foreign Terrorist Entry into the United States (Jan. 27, 2017)

EXECUTIVE ORDER

Protecting the Nation from Foreign Terrorist Entry into the United States

By the authority vested in me as President by the Constitution and laws of the United States of America, including the Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., and section 301 of title 3, United States Code, and to protect the American people from terrorist attacks by foreign nationals admitted to the United States, it is hereby ordered as follows:
Secti  on 1. Purpose. The visa-issuance process plays a crucial role in detecting individuals with terrorist ties and stopping them from entering the United States. Perhaps in no instance was that more apparent than the terrorist attacks of September 11, 2001, when State Department policy prevented consular officers from properly scrutinizing the visa applications of several of the 19 foreign nationals who went on to murder nearly 3,000 Americans. And while the visa-issuance process was reviewed and amended after the September 11 attacks to better detect would-be terrorists from receiving visas, these measures did not stop attacks by foreign nationals who were admitted to the United States.
Numer  ous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program. Deteriorating conditions in certain countries due to war, strife, disaster, and civil unrest increase the likelihood that terrorists will use any means possible to enter the United States. The United States must be vigilant during the visa-issuance process to ensure that those approved for admission do not intend to harm Americans and that they have no ties to terrorism.
der to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.
Sec.   2. Policy. It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.
Sec.   3. Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern. (a) The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
(b)   The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall submit to the President a report on the results of the review described in subsection (a) of this section, including the Secretary of Homeland Security’s determination of the information needed for adjudications and a list of countries that do not provide adequate information, within 30 days of the date of this order. The Secretary of Homeland Security shall provide a copy of the report to the Secretary of State and the Director of National Intelligence.
(c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
(d) Immediately upon receipt of the report described in subsection (b) of this section regarding the information needed for adjudications, the Secretary of State shall request all foreign governments that do not supply such information to start providing such information regarding their nationals within 60 days of notification.
(e) After the 60-day period described in subsection (d) of this section expires, the Secretary of Homeland Security, in consultation with the Secretary of State, shall submit to the President a list of countries recommended for inclusion on a Presidential proclamation that would prohibit the entry of foreign nationals (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas) from countries that do not provide the information requested pursuant to subsection (d) of this section until compliance occurs.
(f) At any point after submitting the list described in subsection (e) of this section, the Secretary of State or the Secretary of Homeland Security may submit to the President the names of any additional countries recommended for similar treatment.
(g) Notwithstanding a suspension pursuant to subsection (c) of this section or pursuant to a Presidential proclamation described in subsection (e) of this section, the Secretaries of State and Homeland Security may, on a case-by-case basis, and when in the national interest, issue visas or other immigration benefits to nationals of countries for which visas and benefits are otherwise blocked.
(h) The Secretaries of State and Homeland Security shall submit to the President a joint report on the progress in implementing this order within 30 days of the date of this order, a second report within 60 days of the date of this order, a third report within 90 days of the date of this order, and a fourth report within 120 days of the date of this order.

Sec. 4. Implementing Uniform Screening Standards for All Immigration Programs. (a) The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission. This program will include the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.
(b) The Secretary of Homeland Security, in conjunction with the Secretary of State, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation, shall submit to the President an initial report on the progress of this directive within 60 days of the date of this order, a second report within 100 days of the date of this order, and a third report within 200 days of the date of this order.
Sec. 5. Realignment of the U.S. Refugee Admissions Program for Fiscal Year 2017. (a) The Secretary of State shall suspend the U.S. Refugee Admissions Program (USRAP) for 120 days. During the 120-day period, the Secretary of State, in conjunction with the Secretary of Homeland Security and in consultation with the Director of National Intelligence, shall review the USRAP application and adjudication process to determine what additional procedures should be taken to ensure that those approved for refugee admission do not pose a threat to the security and welfare of the United States, and shall implement such additional procedures. Refugee applicants who are already in the USRAP process may be admitted upon the initiation and completion of these revised procedures. Upon the date that is 120 days after the date of this order, the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.
(b) Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization.
(c) Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP to ensure that admission of Syrian refugees is consistent with the national interest.
(d);Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
(e) Notwithstanding the temporary suspension imposed pursuant to subsection (a) of this section, the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution, when admitting the person would enable the United States to conform its conduct to a preexisting international agreement, or when the person is already in transit and denying admission would cause undue hardship — and it would not pose a risk to the security or welfare of the United States.
(f) The Secretary of State shall submit to the President an initial report on the progress of the directive in subsection (b) of this section regarding prioritization of claims made by individuals on the basis of religious-based persecution within 100 days of the date of this order and shall submit a second report within 200 days of the date of this order.
(g) It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Sec. 6. Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility. The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.
Sec. 7. Expedited Completion of the Biometric Entry-Exit Tracking System. (a) The Secretary of Homeland Security shall expedite the completion and implementation of a biometric entry-exit tracking system for all travelers to the United States, as recommended by the National Commission on Terrorist Attacks Upon the United States.
(b) The Secretary of Homeland Security shall submit to the President periodic reports on the progress of the directive contained in subsection (a) of this section. The initial report shall be submitted within 100 days of the date of this order, a second report shall be submitted within 200 days of the date of this order, and a third report shall be submitted within 365 days of the date of this order. Further, the Secretary shall submit a report every 180 days thereafter until the system is fully deployed and operational.
Sec. 8. Visa Interview Security. (a) The Secretary of State shall immediately suspend the Visa Interview Waiver Program and ensure compliance with section 222 of the INA, 8 U.S.C. 1222, which requires that all individuals seeking a nonimmigrant visa undergo an in-person interview, subject to specific statutory exceptions.
(b) To the extent permitted by law and subject to the availability of appropriations, the Secretary of State shall immediately expand the Consular Fellows Program, including by substantially increasing the number of Fellows, lengthening or making permanent the period of service, and making language training at the Foreign Service Institute available to Fellows for assignment to posts outside of their area of core linguistic ability, to ensure that non-immigrant visa-interview wait times are not unduly affected.
Sec. 9. Visa Validity Reciprocity. The Secretary of State shall review all nonimmigrant visa reciprocity agreements to ensure that they are, with respect to each visa classification, truly reciprocal insofar as practicable with respect to validity period and fees, as required by sections 221(c) and 281 of the INA, 8 U.S.C. 1201(c) and 1351, and other treatment. If a country does not treat United States nationals seeking nonimmigrant visas in a reciprocal manner, the Secretary of State shall adjust the visa validity period, fee schedule, or other treatment to match the treatment of United States nationals by the foreign country, to the extent practicable.
Sec. 10. Transparency and Data Collection. (a) To be more transparent with the American people, and to more effectively implement policies and practices that serve the national interest, the Secretary of Homeland Security, in consultation with the Attorney General, shall, consistent with applicable law and national security, collect and make publicly available within 180 days, and every 180 days thereafter:
(i) information regarding the number of foreign nationals in the United States who have been charged with terrorism-related offenses while in the United States; convicted of terrorism-related offenses while in the United States; or removed from the United States based on terrorism-related activity, affiliation, or material support to a terrorism-related organization, or any other national security reasons since the date of this order or the last reporting period, whichever is later;
(ii) information regarding the number of foreign nationals in the United States who have been radicalized after entry into the United States and engaged in terrorism-related acts, or who have provided material support to terrorism-related organizations in countries that pose a threat to the United States, since the date of this order or the last reporting period, whichever is later; and
(iii) information regarding the number and types of acts of gender-based violence against women, including honor killings, in the United States by foreign nationals, since the date of this order or the last reporting period, whichever is later; and
(iv) any other information relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, including information on the immigration status of foreign nationals charged with major offenses.    (b) The Secretary of State shall, within one year of the date of this order, provide a report on the estimated long-term costs of the USRAP at the Federal, State, and local levels.    Sec. 11. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.    (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

DONALD J. TRUMP

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SAVE THE REPUBLIC! Rethinking the American Union of States for the Preservation of Republicanism

SECESSION - Separate or Die (head, the federal government, is chopped off)

by Diane Rufino (citing Donald Livingston in his book Rethinking the American Union for the Twenty-First Century), July 26, 2016

The purpose of this article is three-fold:  First, I want to be provocative and get readers thinking.  Second, I wish to educate the reader on our founding principles. And third, I hope to encourage the reader to read the book Rethinking the American Union for the Twenty-First Century, written in part and edited by Donald Livingston, founder and president of the Abbeville Institute.  I enjoyed the book immensely and wanted very much to help get the word out.

I think the best way to encourage one to read the book Rethinking the American Union for the Twenty-First Century is to hook him or her using one of the more thought-provoking themes of the book. And so, this article is composed in great part using selected portions from one of the chapters in that book which I found most interesting – “American Republicanism,” authored by Livingston), with a discussion of nullification, interposition, secession, and federalism by myself.  Credit, of course, goes first and foremost to Professor Livingston.

Article IV of the US Constitution guarantees to every State in the Union “a Republican form of government.”  It is known as the “Guarantee Clause.”  It has not been widely interpreted, but constitutional scholars think it ensures that each State be run as a representative democracy or a dictatorship, preventing any initiative to change a State constitution to provide such.  The Supreme Court has essentially acknowledged that it doesn’t have the slightest idea what it means, has been reluctant to specify exactly what a “republican form of government” means and has left the clause devoid of meaning.  Historically, however, republics have had distinct characteristics, namely that its citizens make the laws they are to live under, that there is a Rule of Law, and that the republic itself be relatively small with respect to population and territory, to ensure that representation is meaningful.

The American system of 1789 was not a republic. It was a federation of republics – each state itself a republic – but the Union itself was not a republic. “A federation of republics is not itself a republic, any more than a federation of country clubs is not in and of itself a country club.” Under the Constitution of 1787, the central government could rule over individuals but only under the powers delegated to it by the sovereign States. All other powers of sovereignty belong to the States, expressly reserved through the Tenth Amendment, by the natural law of sovereignty, and contractually by force of the compact theory characterizing the Constitution. Given this framework, the final safeguard for a truly republican form of government for the people in America was, and could only be, some form of lawful resistance to the concentration of coercion in the federal government, which includes state interposition, nullification, or secession. These remedies are included in the “reserved powers” belonging to the States.

Nullification is a legal theory that holds that a State has the right to nullify, or invalidate, any federal law which that State has deemed unconstitutional. If the authority for the federal government only comes from the highly-contested and debated powers that the States agreed to delegate from their reservoir of sovereign powers, as listed in the Constitution, any federal law, policy, action, or court decision that exceeds such grants of power is “null and void” and lacks enforcement power. Since the federal government will always seek to support and enforce its laws and actions, it must be the States, as the parties to the Constitution and the ones which suffer the usurpation of powers with each unconstitutional action, which must rightfully declare “unconstitutionality” and prevent them from being enforced on a free people. Because the right of nullification is not prohibited by the Constitution (nor is it even addressed), it is reserved by the States under the Tenth Amendment.

Interposition is another claimed right belonging to the States. Interposition is the right of a State to oppose actions of the federal government that the state deems unconstitutional by in order to prevent their enforcement.  The very definition of a tyrannical government is one that imposes unconstitutional actions on its citizens. Tyranny is arbitrary rule. Interposition is the actual action, whether legislative or otherwise, to prevent an unconstitutional federal law or action from being enforced on its people. The most effective remedy against unconstitutional federal action, as emphasized by both Thomas Jefferson and James Madison, is nullification together with interposition. Interposition finds its roots in the Supremacy Clause.  While the Constitution and the laws made in pursuance are considered the supreme law of the land, laws (and other actions) not grounded in rightful or legitimate Constitutional powers are not supreme and the States are well within their powers to prevent such usurpation of government power belonging to their sphere of authority.

Secession, like nullification and interposition, is not prohibited by the Constitution (or even addressed), and hence, is a reserved right of the States.

Nullification and interposition were invoked in 1798 by Kentucky and Virginia to identify the Alien & Sedition Acts as unconstitutional and to prevent citizens of those states from being imprisoned essentially for their exercise of free speech and press. Secession was threated in 1815 by Massachusetts after it characterized Jefferson’s embargo against Great Britain and his Louisiana Purchase and then Madison’s War of 1812 as a history of abuses against the North, with an intent to further the interests of the South. All three States’ Rights’ remedies were regularly invoked in the antebellum period, in every section of the Union, to assert State sovereignty and to constrain the central government. As of 1860, the central government was out of debt and imposed no inland taxes. It existed simply off a tariff on imports and land sales. The Supreme Court was tightly constrained in its exercise of judicial review. It challenged the constitutionality of acts of Congress only twice – in Marbury v. Madison (the Judiciary Act of 1789) and the Dred Scott decision (the right of a slave to challenge his status in a non-slave state when brought there by his master). States and localities in almost all States in the North refused to comply with the Fugitive Slave Act (nullification), either by statue or by civil acts of disobedience, and most strikingly, the Wisconsin legislature and the State Supreme Court in 1854 and 1859 outright challenged the constitutionality of the Act (citing coercion of the states and state officials). South Carolina nullified the Tariff of 1828, citing the improper nature of the tariff, changing it from an ordinary tariff (for revenue collection for the government) to a protectionist tariff (to provide direct funding of “improvements” for the North, as well as other enormous benefits), and claiming it was nothing more than a federal scheme to directly enrich the North at the great expense of the South.

Today, it is taught and it is believed that the “checks and balances” in the American system are only those between the president, Congress, and the Supreme Court. We know about the veto procedure, the ratification process for treaties, appointments (including federal court justices) and judicial review (this last check is not in the constitution actually but a creature of the Supreme Court itself!)  The purpose of our Separation of Powers and our series of checks and balances is to prevent the consolidation of power in any one branch of government and any one group of representatives.  But only a very limited number of Americans understand and appreciate that the greatest check on the consolidation of power comes from the unique design feature of our government established by the States and our Founding Fathers in the conventions and debates creating the Constitution – and that is Federalism.  Federalism is idea that real power is shared by the members of the “federation,” which are the States, with the creature they created (the federal government), which is the reservoir of powers expressly delegated to it by the US Constitution.  Federalism is a “sharing” or “division” of power among sovereigns in order to prevent concentration and tyranny.  The idea is that the government, as a sovereign with very limited and expressly delegated powers, and the States, as sovereigns retaining all other powers of government, will jealously guard their sphere of power and will watch, ever-so-vigilantly, the actions of one another.  What more effective check on government power could there be !!  Sovereign versus sovereign, which is what the term “dual sovereignty” refers to.  Or, as I like to refer to this design feature: “Titan versus Titan” (a reference to Greek mythology).  Alexander Hamilton, in a speech to the New York Ratifying Convention on June 17, 1788, explained it this way: “This balance between the National and State governments ought to be dwelt on with peculiar attention, as it is of the utmost importance. It forms a double security to the people. If one encroaches on their rights they will find a powerful protection in the other. Indeed, they will both be prevented from overpassing their constitutional limits by a certain rivalship, which will ever subsist between them.”

Sadly, this most effective check on consolidation of power in DC has been effectively eroded – mainly at the hands of the US Supreme Court.  The checks from the States on central authority in the form of nullification, interposition, and secession have now been ruled out.  And this is just another way of saying that the federal government can define the limits of its own powers. And that is what the American colonists and ratifiers of the Constitution drafted in Philadelphia in 1787 meant by “absolute monarchy.”

Ask yourself this:  Which branch of government ruled out the essential and natural remedies of nullification, interposition, and secession?  The answer is the US Supreme Court, supporting the ambitious plans of the federal government and improperly relying on Marbury v. Madison (1803) and the Supremacy Clause of the US Constitution for authority. For a State to treat its decisions with less than full support would bring the full resources of the federal government into its backyard. It’s happened before. Andrew Jackson, Abraham Lincoln, Andrew Johnson, Franklin D. Roosevelt, Harry S. Truman, Dwight D. Eisenhower. Rather than interpreting the Constitution, which pretty much is its sole task, the Supreme Court has redefined a new political and government system, one that is quite different from the one entrusted to us by our framers and founders.

When authority taken by the federal government falls outside of the enumerated powers, it makes no sense to ask the federal government to rule on whether the federal government has the power or not. The States, the ones which debated and ratified the Constitution for THEIR benefit, have no umpire on the bench.  As historian Tom Woods points out, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones.

So, it is no surprise that the Supreme Court consistently and steadily handed down decision after decision to strip the States’ of their natural remedies against the Titan seeking to subjugate them – the federal government. Again, the Supreme Court is itself a branch of the very government that seeks to benefit from the consolidation of power it wants by weakening the States.  What better way to get the States to calm down and get in line?

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

If you believe, as most Americans seem to believe (because of government indoctrination), that States no longer have the rights of nullification, interposition, and secession because of the action of one man, a virtual dictator, Abraham Lincoln, then you must reconcile the fact that no State any longer enjoys a republican form of government, as guaranteed in Article IV. That is, they no longer enjoy a republican form of government under any historical understanding of what such a government is nor under the vision of our founders. That notion has now decayed into a legal fiction.

But if the States are not republics, what are they?  Donald Livingston argues that the answer was given by Alexis de Tocqueville in his assessment of the French Revolution. According to de Tocqueville, the French revolution was intended to overturn the monarchy and return power to the people by creating a republic but in reality, it fundamentally changed nothing. The coercive government of the monarchy was simply replaced by a different type of coercive government.  The monopoly over government and land created by Kings (Divine Right of Kings) is a doctrine that embodies two bodies of the king. This duality is symbolized by this famous phrase: “The King is dead! Long live the King!” The first body of the king was the flesh and blood; the mortal body.  The second body was the monopoly, or the artificial corporation, established by birth-right and familial ties. Both bodies are coercive in nature since they are not “of the people” and can never truly represent them. When de Tocqueville said that the French Revolution fundamentally changed nothing, he meant that all that it did was kill the first body of the king. It left the second body of the king intact, merely changing its name from the “Crown” to the “Republic.” The revolution merely replaced the person of the king with a fictitious “nation-person.” In other words, what was created after the French Revolution was an absolute monarchy without the monarch; a regime that had all the major defects of a monarchy but none of the benefits. The post-French Revolution era of “republics” would increase government centralization beyond the wildest dream of any monarch. The German economist, Hans Hoppe, estimates that before the mid-nineteenth century, monarchs, as bad as they might have been, were never able to extract more than 5-8 percent of the gross national product (GNP) from the people, whereas “republics” have been able to exploit over 60 percent.

In his war to prevent Southern independence, Lincoln and the perversely-named “Republican” Party destroyed the two American institutions that had made true republicanism possible in a region on our continental scale – State nullification and secession. Without these rights, there can be no practical check to centralization and oppression of government, and hence, no practical way to ensure that the People of the several States are guaranteed a republican form of government.

Is it possible to have an exceedingly large republic, such as the size of our current-day United States?  British philosopher David Hume once considered the question of a large republic. He proposed the first model of a large republic in his essay “Idea of a Perfect Commonwealth,” which was published in 1792.  Hume’s model did not physically seek to divide territory up physically into individual sovereigns but rather to decentralize government power so as to preserve the human scale demanded of republican self-government. The question is whether this can realistically be done.

Hume agrees with the republican tradition that “a small commonwealth is the happiest government in the world within itself.” But Hume’s model of a large republic, in contrast to the historically small republic, would be to order the large republic in such a way as to have all the advantages of a little republic. The question is whether Hume’s model is translatable to the real world: Can the size of a republic be expanded without destroying those values unique to republican government (self-government and the rule of law) that require a human scale.

Hume’s idea of a large republic is something of the size of Great Britain or France. (Remember his essay was written in 1792!)  As a comparison, Great Britain is approximately equivalent in size to Wyoming and France is approximately equivalent in size to Texas. In Hume’s model, the republic is divided into 100 small republics, but with a national capital. Each of these small republics is then divided into 100 parishes. The members of each parish meet annually to elect 1 representative. This yields 100 representatives in each small republic’s legislature. The legislature selects from among its members 10 magistrates to exercise the executive and judicial functions of the republic and 1 senator to represent the republic in the national capital. That yields 100 senators, from among which 10 are chosen to serve as the national executive and judiciary.

Laws would be proposed by the national senate and passed down to the provincial republics or ratification. Each republic has one vote regardless of population, and the majority rules. To free the provincial legislature from having to vote on every trivial law, a bill can be sent instead to the ten provincial magistrates in each republic for ratification.

How does Hume’s large republic compare to the “highly-centralized regime” that the United States has become today?  Hume’s republic has 100 senators in the national capital representing the individual States, as we do. But the legislative body representing the nation of individuals is located in the several capitals of the provincial republics. This provides three essential advantages.  First, it provides a better and more republican ratio of representation to population. Hume’s republic is the size of Britain, which in his time had some 9 million people; yet his regionally dispersed legislature jointly yields 10,000 representatives.  [100 x 100].  By contrast, the United States has 305 million people, which is 34 times as many inhabitants. Its representative body contains not 10,000 representatives but only 435 representatives – a number that Congress capped by law in 1911.  Hume’s large republic provides a ratio of 1 representative for every 900 people, and so it is of a republican scale.  This is very important !!  The United States’ system provides 1 representative for every 700,000 people, which is not even remotely within a republican scale.

And if you are thinking that this unrepublican character of the United States can be remedied by abolishing the law setting the cap at 435 and increasing the number of representatives in the US House, you will need to understand that judging by the size of legislatures around the world, 435 is just about the right size for a lawmaking body. Everything in nature has a proper size for optimum functionality. A cell can only grow to a certain size (a certain volume-to-cell-surface ratio) so that it can absorb nutrients, eliminate waste, and respire most efficiently. A jury of 12 is perfectly suited to determine the facts of a case; a jury of 120 would be dysfunctional.  When the first US Congress met in New York in 1789, there were 65 representatives. There was 1 representative for every 60,000 people. James Madison thought that was an inadequate ratio to adequately represent the people in a republic. When the number of representatives was capped at 435 in 1911, the population in the United States was 93,863,000. That means that there was 1 representative for every 215,777 inhabitants. If we were to use the same ratio that was used in 1789 – 1: 60,000 – there would be over 5,000 members in the House of Representatives. This would be impossibly large for a lawmaking body. Size does matter.

So, if the number of representatives in Washington DC cannot be increased as the population increases, then we have clearly reached the point where talk of republican self-government is utterly meaningless.  We are merely a republican in name only. In the not too distant future, the population of the United States will reach 435 million. This would yield one representative for every million persons.  Who could honestly believe a regime under this system could be described as a republic?

The point is that a country can literally become too large for self-government.  It becomes unresponsive to the people because its representatives cannot possibly represent the interests of all its constituents.

If the United States has indeed reached the point of political obesity, then the only remedy would be to downsize. The United States will need to be downsized either through peaceful secession movements or through a division into a number of federative units forming a voluntary commonwealth of American federations – an idea that Thomas Jefferson was fond of.

For the moment, let’s put peaceful secession aside (which would divide the Union into distinct territorial jurisdictions or would create individual, independent sovereigns).  Suppose that the United States adopts such a model as Hume’s large republic. This would require abolishing the House of Representatives in Washington DC (Yay!) and transforming the State legislatures into a joint national legislature. The Senate would propose legislation to be ratified by a majority of the States, each State having one vote.

Consider trying to enact the unpopular legislation passed in 2009 and then 2010 under such a model. Of course, I’m referring to the Bailout bills and the stimulus packages of 2009 and then the Patient Protection and Affordable Care Act (or grossly referred to simply as the “Affordable Care Act’; or aptly named “Obamacare”) of 2010. A strong majority of Americans opposed the bailouts for the monster banks whose corrupt and inept policies caused the financial meltdown in 2009, the economic stimulus packages that they knew wouldn’t work, and Barack Obama’s healthcare plan of some two thousand pages, rushed through after secret meetings and secret deals and with publicly-acknowledged privileges given to some states and not others, and admissions by its leading supporters (Democrats) that they hadn’t even read it.  To this should be added that many believe that Congress has no constitutional authority to bailout businesses, let alone arbitrarily choosing which ones to provide federal aid, nor to impose a national healthcare plan, regardless whether it is good or not and whether or not it would help certain citizens out. Now, had these bills been sent down to the State legislatures for debate and ratification, as required by Hume’s large republic model, their defeat would have been so certain that they probably would never have even been proposed in the first place.

The second advantage presented by Hume’s model is that by dispersing the national legislature among the provincial republics (the smaller republics), he has eliminated the corruption that inevitably comes from putting the House of Representatives and the Senate in the same place. The number of representatives in Washington is 435 in the House, and 100 in the Senate– for a grand total of 535 lawmakers. A majority of this number is only 269. This small number rules 305 million people. And the majority can be even less, since both houses can lawfully operate, and they often do, with a mere quorum. A quorum majority of both houses of Congress is only 135 !!

Consider also that the US Supreme Court, centered in DC, a branch of the federal government, with justices who are appointed according to political and ideological lines – and not for proven understanding and adherence to the Constitution – has usurped the traditional “police powers” of the States, which it exercises for the health, safety (including law enforcement), welfare, education, religion, and morality of its citizens. The police powers exercised by each individual State for the benefit of its own people is the very essence of republican life. Nine unelected Supreme Court justices with life tenure – by only a vote of 5-to-4 – make major social policy for 305 million people. Political issues that are reserved to the States, such as abortion, marriage, and voter integrity laws, have been taken out of the policy arena and magically transformed into “constitutional rights.” This means, in effect, that the Court can rewrite the Constitution at will, entirely by-passing the process specifically provided for in Article V (ratification of any alteration/amendment of the Constitution by a ratification by three-fourths of the States).  Again, to think that five members of a high court can usurp lawmaking authority from the legislature (popularly-elected), can usurp powers from the States, and can transform the meaning and intent of the Constitution from the bench rather than the lawful process specifically put in place for the People themselves to define the limits of their government and we are still a republic is ludicrous.

Dispersing the legislatures among provinces would not necessarily get rid of government corruption, which is one of the biggest problems with a consolidated government. However, it would not exist on the same scale and of the same intensity that we see in DC today. Hume’s national legislature sits jointly in the 100 provincial capitals.  That means that a lobbying interest must deploy a much greater number of lobbyists and over greater distances. In addition, it would be much more difficult for representatives to coordinate with each other to buy and sell votes, as is routinely done in Congress today. With such a large republic, representatives would be more cautious and frugal in spending taxpayer money. After all, the 10,000 dispersed representatives who live in the same neighborhood with their constituents would have to look them in the eye and would have to answer to them.

Third, Hume provides a number of checks to prevent a faction from dominating the whole. If the senate rejects a proposed law, only 10 senators out of 100 are needed to veto that decision and forward the bill to the republics for consideration. Laws thought to be trivial can be sent from the senate to the ten magistrates of the republic for ratification instead of calling on the whole legislature. But only 5 out of 100 provincial representatives are needed to veto this and call for a vote of their legislature. Each (small) republic can veto legislation of another republic and force a vote on the matter by all the republics.

Should the United States be divided up into provincial republics – into a “federation of republics” – in order to provide a true republican form of government to its people?  Thomas Jefferson thought so.  George Kennan, esteemed historian and American diplomat (crafted the US policy of containment with respect to the Soviet Union) also thought so. In his autobiography, Around the Cragged Hill, Kennan argued that the United States has become simply too large for the purposes of self-government. As he argued, the central government can rule 305 million people only by imposing one-size-fits-all rules that necessarily result in a “diminished sensitivity of its laws and regulations to the particular needs, traditions, ethnic, cultural, linguistic, and the like of individual localities and communities.”  Kennan passed away in 2005.  That the lives, property, income, and fortunes of 305 million Americans should be the playthings of an oligarchy in Washington that can act by a majority in Congress of only 269 (and 135 if acting by a quorum) and that the essence of republican life – religion, morals, education, marriage, voting rights, law enforcement, and social welfare – should be decided by nine unelected Supreme Court justices is something no free, liberty-minded people should tolerate.

Of course, there is the other option – secession and the formation of individual republics, not held together in federation form. It is said that secession should and must be ruled out because it causes war and it will necessarily involve bloodshed.  But that is not necessarily true. Of course it will depend on the ambitions of the administration in Washington DC, in particular, the president.  We would hope that we should never again suffer the likes of another Abraham Lincoln. But there are many examples of states that have seceded peacefully, including a number of Baltic states from the former Soviet Union. Norway peacefully seceded from Sweden in 1905 and Singapore did so from the Malaysian federation in 1965.  Eventually, if things don’t change and freedom’s flame is close to being extinguished, secession may be the remedy to save the American experiment. Additionally, it may be the only way to save the US Constitution – by putting it in the hands of a people who will take care of it and be much more vigilante with its limited powers and its checks and balances than Americans have been.  When 11 Southern States seceded from the Union in 1860-61 and formed the Confederate States of the American, they, as a Union, established a new constitution. This would be the third constitution that Americans made for themselves, and in most respects, it was far superior to the one of 1787 – they backed out of.  It included several provisions which would have made it much more difficult for the central government to concentrate and usurp power. Had Lincoln respected the States’ right of self-determination (as proclaimed in the Declaration of Independence), we would have had the unique opportunity to compare, side-by-side, how each Union of States (North or South) fared under their constitutions.  The point is that secession gave the People (acting in State conventions) the opportunity to correct the defects in the Constitution that caused them to be oppressed by government. The question will be: when that time comes (and maybe it is already here), will we have the Will to Secede!!  Already, between 19-34% of Americans (ranked by State), now believe we would be better if States peacefully left the Union.

Donald Livingston closes his discussion of “American Republicanism” with this summary: “When a healthy cell grows too large, it divides into two cells. It is the cancerous cell that no longer knows how to stop growing. That artificial corporation, created by the individual States over two centuries ago, called the “United States” has, over time, metastasized into a cancerous growth on a federation of continental scale, sucking republican vitality out of States and local communities. The natural chemotherapy for this peculiar condition is and can only be some revived form of State interposition, nullification, or secession. If these are rejected out of hand as heresies (as our nationalist historians have taught since the late nineteenth century), then we can no longer, in good faith, describe ourselves as enjoying a republican style of government.

American secession

 

Again, I encourage everyone to read the entire book – Rethinking the American Union for the Twenty-First Century.  Aside from Donald Livingston, accomplished authors and academics Kent Masterson Brown, Dr. Thomas DiLorenzo, Dr. Marshall DeRosa, Yuri Maltsev, and Rob Williams also contributed chapters.

 

References:

Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century, Pelican Publishing Company, 2013.

Poll:  One in Four of Americans Want Their State to Secede, but Why?  –   http://blogs.reuters.com/jamesrgaines/2014/09/19/one-in-four-americans-want-their-state-to-secede-from-the-u-s-but-why/

Poll: A Quarter of Americans Want Their State to Secede –   http://talkingpointsmemo.com/livewire/poll-seccession

Poll:  One in Four of Americans Want Their State to Secede –   http://dailycaller.com/2014/09/19/poll-one-in-four-americans-want-their-state-to-secede/

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TENTH AMENDMENT KEEPERS: Keepers of the Tenth!

10th Amendment

by Diane Rufino, July 19, 2016

This short article is intended to alert the reader to the importance of the Tenth Amendment and hopefully inspire him or her to join the Tenth Amendment Movement and help bring government power back to the States in those areas historically belonging to them and reserved to them under the Tenth Amendment.

About the Tenth Amendment Movement:

The Tenth Amendment has its roots in the intent of each State to retain its full sovereignty and its right of self-determination. The Tenth Amendment comes from Article II of our very first constitution, the Articles of Confederation: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”  So concerned about their right of self-determination and their fear of being consumed by a centralized government under the US Constitution as drafted in 1787 at the Philadelphia Convention, that several crucial states were not willing to ratify it in convention. Virginia and New York would not ratify unless they were given assurances that amendments (for a Bill of Rights) would be added, and indeed they proposed several, including one with the language of the Tenth Amendment. To make their position firmer, they included Resumption Clauses with their Ordinances of Ratification which conditioned their ratification on the explicit right to resume all powers when they desired so. “We, the delegates of the people of Virginia do, in the name and on behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Supporters of big government (such as Abraham Lincoln, FDR, LBJ, Obama, many Supreme Court justices, and today’s progressives) have actively down-played the Tenth Amendment because it embodies States’ Rights and state power.  In the years leading up to the War of 1861 and most certainly with that war and afterwards, the political elites in government understood that the ordinary checks and balances provided in the Constitution could be co-opted and controlled, but the most critical of all the checks and balances that our Founders provided on the federal government – the tension created by sovereign states (“Dual Sovereignty,” “federalism”… or as I like to refer to it: “Titan versus Titan”) – is the one they could not, especially the Southern States. And so began the movement to destroy the concept of States’ Rights, the great movement of Thomas Jefferson.  Indeed, most Americans believe what the victor of the War of 1861 (ie, the federal government) has indoctrinated, which is that the sovereignty of the federal government, in all cases, trumps the States and that the States are powerless to oppose the government or leave the Union.  The Tenth Amendment Movement knows that this indoctrination can be reversed by education and by the willing re-assertion of the Tenth Amendment by the States.  The Tenth Amendment Movement is about educating folks and especially members and candidates for state legislatures about the compact nature of the Constitution, which essentially says that the States, as willing parties, mutually agreed to the terms of the Constitution and assented to be bound by it (forming the Union, with its “creature” – the federal government – providing certain functions on their behalf), so long as the terms were faithfully adhered.  Compacts implicate the laws of contract and to some degree the law of agency.

Unquestionably, the Constitution was created as a social compact. It had all the requisites of a contract. There were parties: thirteen States, to which were added those that similarly ratified the document in the years after 1781. There was mutuality: each State promised to give up some of its sovereignty in exchange for what the Union promised to deliver – for receiving a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade. The Constitution was created by the States and ratified by the States, each acting in Convention. It could only be amended by and between the States. And if there was any doubt about the fact that the Constitution was an agreement entered into by and between the States, Article VII states: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.”  Every one of our Founding Fathers characterized the Constitution as a compact. It was referred to as such in the Constitutional Convention in Philadelphia in 1787, in all the State Ratifying Conventions, Anti-Federalist Papers, the Federalist Papers, in the communications by Thomas Jefferson, in the Kentucky and Virginia Resolutions, written by Thomas Jefferson and James Madison (respectively), in Madison’s 1800 Report, in the several famous speeches by John C. Calhoun, and in the Ordinances of Secession.

It is critical that education by the Tenth Amendment Movement emphasize this compact nature of the Constitution and destroy the constitutional myth espoused by Lincoln to subjugate and consolidate forever the States because only then do certain remedies apply – such as nullification, interposition, and even secession itself.

The Constitution’s text and history before the War of 1861 did NOT change as a result of the surrender at Appomattox. Contracts do not textually change by the use of brute force; contracts change ONLY by the agreement of the parties. The Constitution was still a “constitution between the States” after the war as it was before. It remains so now.

Years ago, it would have been very rare to find folks who supported such critical doctrines such as Nullification and Interposition.  Even talk of States’ Rights seemed to be unpopular.  Which state would even think of daring to question the federal government?  But over the years, as the federal government has become exceedingly ambitious, arrogant, tyrannical, corrupt, reckless, and out of touch with the American people, I’ve seen things change. I’ve watched in seminars how voices of skepticism turned to support. Instead of people telling me such remedies were illegitimate, unconstitutional, and dangerous, all of a sudden, they started asking how to approach their legislators about using them against the federal government.  States are looking to nullification and interposition to finally define boundaries.  States are passing nullification measures on a wide range of issues – Obamacare, federal gun control, hemp, medical marijuana.

I hope that if you believe in the importance of this movement, as I believe, you will get involved, help educate others, and help elect like-minded representatives to your State legislature.  Whether individual freedom will be secured for “generations to come and millions yet unborn” will depend upon how the States choose to value the Tenth Amendment.  And the path that each State takes can be determined through the voice of its people.

How can you get involved?  Contact the Tenth Amendment Center, through its website.  If you have a chapter in your state, contact any of its members.  If you don’t have a chapter, either volunteer to start one or help recruit someone with the necessary time and skills to organize and run it. If you belong to an organization, such as the Tea Party or any other community organization, request that speakers be invited to talk about the Tenth Amendment, Nullification, Interposition, Judicial Activism, the Constitution and Original Intent, and other such topics.

Educate, educate, educate. The most important thing you can do is become educated!  You will find educational articles and updates on my blogsite (www.forloveofgodandcountry.com), on the Tenth Amendment Center website (http://tenthamendmentcenter.com/), and on the Abbeville Institute website (http://www.abbevilleinstitute.org/)

Finally, follow my blogsite – Tenth Amendment Keepers (https://tenthamendmentkeepers.wordpress.com) and the Facebook site of the same name.

Together, we must Keep the Tenth Amendment relevant.

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Desperately Seeking Security – For Our Second Amendment

SECOND AMENDMENT - minuteman with gun

by Diane Rufino, July 20, 2016

To those who are serious about preventing the federal government from coming after our Second Amendment rights, please read and take note…..   

If you really want to make a difference and prevent the government from infringing on our Second Amendment, you have to actively support Nullification as a remedy and propose nullification measures to use the power of the States and the People to protect THEIR protections expressly stated in the US Constitution – the Bill of Rights.  I’m not saying you have to necessarily come out and use that word, but you absolutely need to support the concept.

Remember what the preamble to the Bill of Rights emphasizes: “The Conventions of a number of States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.”   In other words, amendments One through Nine are “further restrictions on the federal government” while the Tenth is a further declaration of the intent of the Constitution (as a compact) – that the States have only delegated a select few of their sovereign powers to a common government for common purposes – for a “common defense” and some regulation of commerce between the States where it was necessary to ensure free trade – and they retain and reserve the remainder of them.

You MUST start talking about the Constitution in terms of Compact Theory and reject any characterization of the country as a Union of people rather than States (Lincoln’s rhetoric).  Only when the Constitution is once again referred to and characterized as it was intended – a compact (history is complete with its references and justifications, including from all our Founding Fathers, the Constitutional Convention of 1787, from the writings of our two greatest founders Thomas Jefferson and James Madison, the State Ratifying Conventions, and even Article VII of the US Constitution itself), can we stand on the firm ground necessary to reassert our position – that the government has no authority to burden the rights recognized and protected in the Bill of Rights and indeed which formed the very basis for our independence from Great Britain. Compacts have implicit rights and remedies reserved to its signing parties, very similar to contract law and even agency law.

You MUST start talking about State Sovereignty Bills that will protect the citizens in every state from any gun control measure that burdens our Second Amendment guarantee.  And I mean, REAL sovereignty bills that include interposition provisions and intent to enforce them. Montana introduced such a bill (or resolution) several years ago which reasserted its sovereignty under the Tenth Amendment and characterizing her position vis-a-vis the other States and the federal government in terms of a social compact where each State, as a party to that compact, has the implicit right (just as a party to a contract) to reassert the original terms of the agreement, to ensure that they are faithfully followed, and to assert her right to sever its bond and withdraw from the Union when that compact has been violated and frustrated.  The Montana bill includes a provision that puts the federal government on notice that if it attempts to do any of a list of things (I believe the bill lists 5 specific things, including GUN CONTROL, limiting the Second Amendment), then it would consider it “a fatal breach of the compact that holds us together in the Union.”

This is the only way you fight back against the designs of our present bloated, self-serving government.  These bold assertions and the strong political posturing of States will put the government on notice and equally will put the US Supreme Court on notice as well. They move forward with gun control measures, they do so at the peril of the stability of the United States.

Petitions don’t amount to a hill of beans. Over 60% of the American people showed their opposition to government-mandated healthcare but the government went ahead with it anyway.

In a politically-incorrect and realistic world, laws are supposed to protect the good people and encourage constrained behavior for the benefit of an ordered and healthy/happy society.  A person should always be free to exercise his or her God-given rights and freedoms UNTIL it burdens another’s free exercise thereof.  Laws are also supposed to punish the bad people and DISCOURAGE bad behavior.  Our government is talking about Gun Control from an incorrect point of view with respect to the purpose of laws.  It seeks to punish good people because of the actions of bad people. In doing so, it will punish good people from doing what God inherently intended people to do – protect themselves, their families, and their property, using whatever means necessary to stop the evil.  The very definition of a criminal or the criminally-inclined is a person who doesn’t obey laws.  As with Prohibition, a prohibition on guns, a registry of guns, a long waiting period on gun ownership, a limitation on gun ownership and ammunition, etc etc will only create a thriving and creative black market which will only make sure that most criminals and super bad guys (and syndicates, such as terrorist organizations) will get lots of them while honest, law-abiding, vulnerable people which characterizes the overwhelming majority of Americans who now take huge risks now every time they venture out of their homes and go into public places, will have none.

I offer these comments as someone who is equally passionate in preventing the federal government from taking our rights away or even burdening them in any way.  It’s always a slippery slope to even give in just a little.

Remember, the Second Amendment is Freedom’s Strongest Guarantee !!

SECOND AMENDMENT - poster (last time I checked, it didn't read it is a Bill of Needs)

TAKE THIS MONUMENT DOWN!

Andrew Jackson statue #2

by Diane Rufino

While we’re heading down the dangerous slippery slope of government-sponsored censorship surrounding the display of the Confederate flag and certain Civil War generals and other historical figures, I have one question to ask….. Why don’t the good people of Louisiana demand that this offensive statue of Andrew Jackson (see below) be torn down. It reads: “The Union MUST and SHALL BE preserved.”

My daughter took a pic of it while she was in New Orleans recently and I noted what was inscribed on it.

This statue honors Jackson, who apparently was a hero of the Battle of New Orleans. During the Civil War, when Union soldiers occupied New Orleans, the phrase, “The Union must and shall be preserved” was inscribed into the monument’s base. At the time, the Union often used this phrase, referring to Jackson’s support of federal supremacy over state sovereignty.

I would demand the statue be taken down as an offensive reminder of the government’s violent attempt to destroy state’s rights, neuter state sovereignty, and shred the Declaration of Independence. The statue is a constant reminder of government coercion and indoctrination, all for the purpose of maintaining the all-powerful federal government.

Enough about racism. There are far bigger issues and principles at play. A “Perpetual Union” means a perpetual government. Our Founders never subscribed to that notion. There is a reason the government supports the position that the union was intended to be perpetual, and there is a reason presidents added justices to the federal courts who believe the same way — because then the government has longevity and nothing to fear from the sovereigns that were supposed to be able to hold its future in their hands.

THE FEDERAL JUDICIARY HAS BECOME DANGEROUS & DESPOTIC: A CONSTITUTIONAL AMENDMENT

SUPREME COURT - Judicial Supremacy

by Diane Rufino, July 11, 2015

US CONSTITUTION:  AMENDMENT PROPOSAL

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

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

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “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”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance(1795)]. 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.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.

Diane - BLOG pic (Independence Mall) - BEST

INTRODUCTION:

There is one principle upon which the Supreme Court should most firmly stand united. It is explained, proclaimed, assured in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

The servant has indeed become more powerful than the master.

The reason the servant has become more powerful than its master is because the Supreme Court has expanded and re-defined the authority granted to the Congress and to the Executive in the US Constitution. And in order to do so, it first had to expand and re-define its own authority, which it did in 1803 – only 12 years after it heard its very first case (in 1791).

The first question we must ask is this:  What is a constitution?  A constitution is instrument by which authority for government is delegated from its natural depository. As the Declaration of Independence makes abundantly clear, the laws of Nature and God’s Law have established that man himself is vested with this authority. There is a natural order…  First there is man, then there are communities when men join together, and finally, there is government established by social compact whereby rules and laws are established so that men can live successfully among one another, enjoying security and without surrendering their essential rights and liberties (including property). Thomas Paine, in his publication Rights of Man (1791-92), 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.”  In other words, government action needs legitimate authority and that authority must be spelled out so that people know at which point power is being abused.

Justice William Patterson explained in more detail the significance of a constitution in one of the Supreme Court’s earliest cases, Vanhorne’s Lessee v. Dorance (1795):  “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”   He continued:

“In England, the authority of the Parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. 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 paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void…..

      I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

What makes the Constitution stable and permanent is the strict and consistent understanding of its terms and its intent.   James Madison, who is considered the author of the Constitution, advised: “If we were to look for the meaning of the instrument [Constitution] beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”

BACKGROUND:

In 1776, the 13 original British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration “that these united colonies are, and of right ought to be, free and independent states.”  The permeating principle pronounced and proclaimed in the Declaration of Independence was that every people had the right to alter or abolish their government when it ceased to serve the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united (with their representatives pledging their lives, their fortunes, and their sacred honor) to seek independence from Great Britain. A long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.

In 1777, the delegates from each of the thirteen States, met once again in the general congress and agreed to “certain articles of confederation and perpetual union between the States.”  They agreed that the union formed would be a confederation of states. That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.” The meaning of this article is quite plain.  Under the Articles, representation in the Congress of the Confederation was one vote per state, irrespective of population or the number of delegates in attendance, and the powers available were only those expressly delegated, with all others being reserved to the States separately. Under the Articles of Confederation, the War for Independence (Revolutionary War) was conducted.

On October 19, 1781, British General Charles Cornwallis surrendered his troops at the battle of Yorktown, Virginia, and the colonies were finally free!  It was not until September 3, 1783, with the signing of the Treaty of Paris, that the Revolutionary War came to its final conclusion.

In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, it is clear that in 1783 each State was a sovereign, free, and independent community.

After the pressure and necessity of war was removed, it became clear that the “common government” – the Congress of the Confederation – was impracticable and ineffective to administer the general affairs of the Union; it would need to possess additional powers.  In 1786, 12 delegates from 5 states (NY, NJ, PA, DE, and VA) gathered at a tavern in Annapolis MD to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected. That was the limited purpose of the convention. Other states were supposed to attend but never made it in time.  (Under the Articles of Confederation, each state was largely independent from the others and the national government had no authority to regulate trade between and among the states).  Alexander Hamilton wrote the Convention’s final report and sent it to Congress. It explained that the delegates decided not to proceed on the business of their mission on account of such a deficient representation, but believed that there was an even more compelling reason to hold another convention. The delegates noted that the Articles possessed “important defects” and lacked enough power to be effective, and if the problems were not addressed, the perceived benefits of the confederation would be unfulfilled. As conveyed in the Report, the delegates to the Annapolis Convention decided that another conference, “with more enlarged powers” should be called and should meet in Philadelphia the following summer to “take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”

And so, the following year, May 1787, delegates from 12 of the 13 states (Rhode Island refused to send delegates), met in Philadelphia for the specific purpose of amending the Articles of Confederation.  They ended up proposing a new form of government (thanks to the dubious scheming and planning by James Madison).  The newly-drafted Constitution for the United States, a voluntary compact, was to be submitted to the States, and, if ratified by 9 of them, would go into effect as between the States so ratifying it.  As it turned out, 11 states ratified and the Constitution became effective in 1788 (with Washington being chosen unanimously by the electoral college to be the first president and the first Congress meeting in March 1789).  North Carolina finally joined the Union (ratified the Constitution) in 1789 after a Bill of Rights was proposed by James Madison in Congress and Rhode Island joined in 1790.  The old union under the Articles was replaced by “a more perfect” union under the US Constitution.

The Union was made “more perfect” because the general government thus created, would be more effective to provide certain common services for all the states. Each state, in adopting the Constitution, contended, believed, and certainly articulated that the general government was one of specifically enumerated powers only and that they reserved the residuary of sovereign powers for themselves, as individual states.

So fearful and apprehensive were the states that the common government would usurp sovereign state powers and attempt to enlarge its powers that they took several steps:

1). They designed a bicameral legislative body that included a body that directly represented the States’ interests.  Before the 17th Amendment was adopted, US Senators were selected by the state legislatures, including on a rotating basis if need be, specifically to provide a check on legislation that burdened states’ sovereign interests or exceeded constitutional authority.  The intent was to include an express federal element to the government structure and to provide an additional and critical Check and Balance on government. The sovereign states would jealously guard their sphere of power directly, at the source.

2). Two of the delegates to the Constitutional Convention (James Madison and Alexander Hamilton) went on to write a series of essays to explain and clarify the language and provisions of the Constitution to assure the states assembled in their state ratifying conventions that the document is one that creates a “common” government of very specified delegated powers.  These are the Federalist Papers, which to this day is the greatest authority on the meaning and spirit of the Constitution. The essays were explanations upon which the states relied in their decision to ratify, much the same way as parties to the purchase and sale of real property rely on contract terms and covenants when they agree to sign and be bound.

3). They conditioned their adoption of the Constitution on certain definitions and assumptions.

4). They demanded a Bill of Rights

5). They included “Resumptive Clauses”

6). The repeatedly referred to the Constitution as a “compact” between the states (the parties) to create a common government

7). They asserted their right of nullification and interposition (the refusal to acknowledge the legitimacy of a federal law passed by abuse any Constitutional power or as a result of usurping power from any State or the People themselves)

Alexander Hamilton wrote in Federalist No. 32:  “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

And James Madison wrote in Federalist No. 45:

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.

And again, Hamilton write in Federalist No. 78:  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Even though such assurances were given, there were many who still did not trust that the Constitution could effectively check consolidation of power by the federal (common) government.  Such voices were particularly loud in the state ratifying conventions.  That is why several states either refused outright to ratify (such as North Carolina) or ratified only when promised that a Bill of Rights would be added. To emphasize exactly WHY the Bill of Rights was demanded by the states and why it was added, a preamble was included. The Preamble to the Bill of Rights reads: “Congress of the United States, in the City of New York, on March 4, 1789:  The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added to extend public confidence in the Government to best ensure the beneficent ends of the institution.”  In other words, the first ten (10) amendments were demanded by the States as a condition to joining together in a new Union in order to FURTHER LIMIT the scope of government (should they not understand the limits in Articles I – III) and to REMIND and RESTATE for the purpose of the federal government (all 3 branches) that the government is predicated on federalism – the notion of the states being sovereign and vested with all reserved powers not expressly delegated under Article I, Section 8 (nor prohibited to them under Section 9).

Aside from the Preamble to the Bill of Rights which again was specifically written to explain the reason and intention of the first ten amendments, several states inserted RESUMPTIVE CLAUSES into the adoption texts when they   officially adopted the Constitution.

The RESUMPTIVE CLAUSES were intentionally inserted because of a distrust of the government that would be created under the Constitution. They were meant as express conditions on adoption and continued membership in a Union ruled by a common government.  These states included New York, Virginia, and Rhode Island.  (It is most likely that North Carolina would have included one as well but was given firm assurances that James Madison would draft and send a Bill of Rights to the States to include in the Constitution for their protection).

New York was the eleventh State to assent to the compact of union, and her ratification was particularly important because she was seen as a potential hold-out to the ratification of the Constitution. It was a state dominated by many influential anti-Federalists, including its governor. To make her ratification conditioned on the understanding that only specifically delegated powers were intended for the federal government and nothing more, her ratification text included a declaration of the principles on which her assent was given (ie, a “Resumptive Clause”), which the following language: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same…”

Rhode Island’s clause read: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  And Virginia’s clause read: “Having fully and freely investigated and discussed the proceedings of the federal Convention, and being prepared to decide thereon, do in the name and in behalf of the People of Virginia, declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Reassumption (resumption) is the correlative of delegation.

At the time the Constitution was written and then submitted to the States for ratification, most of the Founders – and most notably, most Virginians and New Yorkers – saw the Constitution as a compact.  Reference to this was made in several Federalist essays (No. 39, 43, 44, 49, for example), in many anti-Federalist essays (written to urge skepticism of the Constitution and which prompted the writing of the Federalist Papers), and in several of the state ratifying conventions.  [Dave Brenner documents the compact nature of the Constitution in detail in his book, Compact of the Republic].  In fact, the term was commonly used for at least 100 years after. [See the various articles of secession by the southern states in 1861 and commentary explaining federalism and states’ rights].

James Madison wrote: “There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Government of the United States. The Government of the U.S. like all Governments free in their principles, rests on compact; a compact, not between the Government and the parties who formed and live under it; but among the parties themselves, and the strongest of Governments are those in which the compacts were most fairly formed and most faithfully executed.”

In his Report of 1800 to the Virginia House of Delegates, expounding on the Virginia Resolutions which addressed constitutional violations with the Alien and Sedition Acts of 1798), James Madison explained: “The resolution declares, first, that ‘it views the powers of the federal government as resulting from the compact to which the states are parties;’ in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties.  Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine which opens another source of federal powers, not less extensive and important than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In 1798, in Supreme Court case Calder v. Bull, Justice Samuel Chase discussed the leading doctrines of American constitutional law with respect to states’ rights prior to the Civil War – the Doctrine of Vested Rights (the 10th Amendment) and the Doctrine of Police Powers.  He wrote: “The people of the United States erected their constitutions to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect persons and property from violence. The purposes for which men enter into society will determine the nature and term of the social compact; and as they are the foundation of legislative power, they will decide the proper objects of it. The nature and ends of legislative power will limit the exercise of it….  There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority.  There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority…”

In The Federalist Papers, James Madison addressed the question, ‘On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?’ He answered: “By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

As explained, constitutions speak to the very foundation of law. They provide the authority for a governing body.  Thomas Jefferson wrote: “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it will be null and void.”  And Chief Justice John Marshall explained: “All laws which are repugnant to the Constitution are null and void.” (Marbury v. Madison, 1803).  Authority is not without limits, otherwise a written constitution would not be necessary. And so there are boundaries. For a government to take a step beyond such boundary would result in a nullity. Nullification is a doctrine that derives not only from the “compact theory” of the Union, but derives from the very nature of constitutions in general.  Nullification essentially states that a law made without legitimate, delegated legal authority is null and void and is not enforceable (on a State or on the People). It is a remedy to prevent government overreach and abuse.  As an effective remedy, of course, the offending law must be identified and then affirmative efforts must be made to prevent its enforcement. Nullification flows from the nature of the Constitution and as such it fundamental and foundational.  It flows from the fact that the Constitution is a compact….  an agreement by parties (the States) to be bound in a union and thereby abiding by the responsibilities (burdens, including the burden of delegating some of its sovereign powers) while benefitting by its service.

As the leading authority on Nullification, Thomas Woods, explains: “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.”

Thomas Jefferson and James Madison were the Founders (are most influential, to be sure) who articulated Nullification most clearly.

In the Kentucky Resolutions of 1798, Jefferson wrote:

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

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of 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 anullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. 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 are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in 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.

The point is that the Constitution created a common government of limited delegated powers.  The delegation of sovereign powers had to come from somewhere, and because of the declaration of liberty proclaimed in our founding document, the Declaration of Independence, we know those powers came from the States, and the People themselves. Any delegation of sovereign individual rights is always temporary in nature and any delegation of state powers is temporary as well.  Any assumption of powers not expressly delegated to government remains with the States and People, and every time any branch of government exceeds its delegated powers, it usurps them from the rightful depositories.  The States and our Founders took every possible opportunity to ensure that the government would remain limited in size and scope.  Their goal, their vision was to use the power of the states to limit the power of the federal government. It was the unique design feature that would ensure the greatest degree of freedom and bring to life the promises in the Declaration of Independence.

THESE are the principles upon which the general government was created.  This was the common understanding of the states in forming the Union.

Supremacy Clause (cartoon - States saluting Constiution)

DISCUSSION:

As predicted and despite the numerous warnings, by such esteemed intellects as Patrick Henry, Thomas Jefferson, and George Mason (to name a few), members of the federal government have attempted, and have almost always succeeded, in concentrating power in all three branches.  They have weakened the status of the states at every turn. It began, unfortunately, when the very father of our nation, George Washington, supported the very proposition rejected at the Philadelphia Convention and in the ratifying conventions — that the Constitution is not only one of expressly enumerated powers but one of “implied” powers as well (thus enlarging at the time the federal taxing power). And then came the devastating decision by the Supreme Court in 1803 in Marbury v. Madison which proclaimed, without any provision in the Constitution as support, that its decisions on constitutional matters are binding upon the other branches of government, on the States, and on the People.

The monopoly that we see today by the federal government over the meaning and intent of the Constitution, as well as the scope of its powers, was clearly beginning to take shape in 1803.

The Civil War was an unfortunate time in our history.  While the creation of the first National Bank (1791) and then the passing of the Alien and Sedition Acts (1798) posed the scenarios of what would happen if the federal government attempted to usurp or re-define its powers and what would happen if the government passed laws violative of the Constitution, the Civil War showed us what would happen if the government refused to respect its status under the Declaration of Independence and instead decided to seek its own self-preservation rather than protect the rights of the parties which created it as the agent. In other words, the Civil War presented the case of a rogue government.  Yet, at the end of the Civil War, the Constitution essentially remained unchanged except for the addition of the Reconstruction era amendments – the 13th, 14th, and 15th amendments.  The balance of power between the States and the federal government, as embodied in the Constitution, remained intact. It was only when the Supreme Court decided to re-interpret and twist and mold the 14th amendment that federalism was significantly eroded.

But then the coup de grace….  the passage of the 17th amendment.

The 17th amendment was added to the Constitution, making Senators elected and accountable only to the people. As we all know, because of the transient nature of habitation – the ability of people to move freely from state to state – as well as the overwhelming influence of immigration, the interests and concerns of the people are most often not the interests and concerns of the state as a sovereign unit. Now Senators cannot be removed for bad voting behavior for six years and have an incredible opportunity and incentive to become not only rogue representatives but to become agents of the government rather than agents of the people.

With the passage of the 17th amendment, the monopoly was firmly established.

And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals.  The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court.  For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above.  Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic.  Of course, the “compact” is the Constitution itself.  In the book, Brenner writes: “John Marshall’s Supreme Court became the very representation of what the anti-Federalists feared the most – a judiciary that overstepped its own authority and ruled on state law.  Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions.”

The book continues:

One of the last actions of the John Adams administration was to pass the Judiciary Act of 1801. This act would become known by Adams’ political opponents as the ‘midnight appointments’ because Adams literally worked feverishly to write and sign the commissions in the last days of his presidency.  Adams hoped to methodically extend the power of the Federalists by appointing relatively large groups of (Federalist) civil officers that would serve for life. One of the commissions was written for William Marbury, an avowed Federalist who Adams wished to make Justice of the Peace for the District of Columbia. 

      The Senate confirmed the appointment of Marbury and many of the other judges. It remains clear that Jefferson, as the newly-inaugurated president, instructed James Madison, the new Secretary of State, not to deliver the remaining commissions to the ‘midnight judges.’  The Constitution did not require him to grant commissions to judges he did not appoint, and it was clear that he did not wish to extend the Federalist judiciary.  After the incredibly contentious 1800 presidential election, Jefferson clearly viewed that contest as a referendum on Federalist rule….

As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.

Writing the decision, Chief Justice Marshall held that part of the Judiciary Act – the part that gave rise to Marbury’s commission – was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”  The decision concluded by saying that “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.” It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means.  In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: “This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system.”  (Cooper v. Aaron, 1958)

Marbury’s declaration of judicial supremacy ignores the opinion in Vanhorne’s Lessee v. Dorance (1795).  [See above].

It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford].  From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].

Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to “render” or “offer” an opinion, to be considered by the other branches.  Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation.  Alexander Hamilton assured the state delegations in Federalist No. 78:  “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them….    “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In Federalist No. 49, Hamilton wrote: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”

Again, in Vanhorne’s Lessee v. Dorance, Justice Patterson emphasized: “It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well.  Article III, Section 1 reads: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).

Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.

What the Constitution DOES speak to is Separation of Powers and Checks and Balances.  The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People’s house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn’t expire, that is supreme to the others.  What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be — the least dangerous branch.

James Madison, the author himself of the Constitution, asked: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.”   Furthermore, he wrote: “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority.”  Thomas Jefferson was of the same opinion. He wrote: “Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

These great men recognized the threat to government balance should the view be otherwise.  “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper,” wrote Madison.  Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote:  “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”

More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America’s onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791.  The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are “Borked”), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine “policy” from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the “Living Document” approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted.  It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation – and that is according to Article V – the “amendment process.”

Speaking about the “human” nature of justices which can cloud their decisions, one often hears someone comment that President Obama “must have something very damaging on Chief Justice John Roberts” to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare.  He said the Court “violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution.”  The justices that look to the actual (intended) meaning and spirit of the Constitution (the “strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano.  Justice Scalia offered the most scathing dissent and in fact ended by simply saying “I dissent” rather than the usual “I respectfully dissent.”  Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision “pure applesauce.”  He accused his colleagues of doing “somersaults of statutory interpretation” and wrote: Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”  When he wrote “We should start calling this law SCOTUScare,” he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.

A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14thAmendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: “The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14thamendment was passed in 1868, homosexual behavior was a felony in every state in the union … If the people of the United States have ‘evolved’ on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently ‘evolve’….  They need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!  If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? … It’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.”  Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The ‘incorporation doctrine’ is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment’s Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been “historically fundamental to our nation’s scheme of ordered liberty.”  When a federal court reviews a case claiming an asserted right is one protected under “substantive due process” (due process involving “liberty interests”), the court usually looks first to see if there is a fundamental right by examining “if the right can be found deeply rooted in American history and traditions.”  Because the incorporation test includes the clarifiers “historically” or “deeply rooted in American history and traditions,” in making its determination, the Court must look back to the era in our country’s history beginning from our founding up until the adoption of the 14thamendment – or it SHOULD.  Just as not all proposed “new” constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.  Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a “fundamental right to marry” invites controversy.  The notion of a “fundamental right” implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest (ie, the “strict scrutiny” test).  But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers).  As the dissent points out: “Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases ‘presumed a relationship  involving opposite-sex partners.’  In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right.”   Re-definition of marriage is something society decides as a whole, through the legislature.  It is not the role of a court. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”  Another dissenting opinion states: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: “The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court’s previous decisions reserve to the people of the States.”

Thomas Paine wrote:  “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.”  The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don’t have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.

With respect to the federal judiciary, Thomas Jefferson wrote: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

Furthermore, he wrote: “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  (in a letter to Spencer Roane, 1819)

Similarly, he wrote: “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.”   (in a letter to Thomas Ritchie, December 1820)

And again, he commented: “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 centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”    (in a letter to Charles Hammond, August 18, 1821)

Joseph Story, in his Commentaries on the Constitution (1833), wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” 

US Rep. Joseph Nicholson (1770-1817) warned:  “By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.”

If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it’s no better than an armed mob.  While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.

By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution – the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these “sweeping clauses” because he felt they might ultimately be used by the federal government to sweep authority away from the states.  And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate.  It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!)  The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.

On July 9, 1868, during the Reconstruction era – the era when the US Congress radically transformed the southern states – the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the “sweeping” or “elastic” clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States.  Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment’s Guarantee of Free Speech was applied to the states.  Through the “Incorporation Doctrine,” the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20thcentury and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.  In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change.  Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It’s hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.

At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution.”  The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.

This point was emphasized by the Marshall Court in 1822.  In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed.  He then sued the city for the losses caused by the sand-build up.  In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states.  The decision read:

Had the framers of the Bill of Rights intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protections from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”

The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.

Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14thamendment was not intended to make the Bill of Rights applicable to the states.  It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed.  Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scottdecision).  This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment’s first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson.  The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta.  He further explained:

(a)  That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II.  [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]

(b)  That “citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”

As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. “During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union.  [This has been termed] ‘ratification at the point of the bayonet’” because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14thamendment. “The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states.”  For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally – legitimately – adopted.

Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases.  The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system.  The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property.  It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14thamendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:

The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution . . . . But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled.  To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.  That its main purpose was to establish the citizenship of the negro can admit of no doubt.

       The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clear recognized and established.  We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs. . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.

      Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?  All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

       We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

      The war (the Civil War) being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive [the Emancipation Proclamation], both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored union as one of its fundamental articles.’

In other words, Justice Miller’s point is that the meaning and purpose of the 14thamendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution].  For example, as Miller explains, “the 15th amendment declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.”  The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.

Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.

To be clear that the amendment did not include or intend the “incorporation doctrine,” another proposed amendment during the same era can confirm this.  In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would “incorporate” the 1st amendment’s guarantee of religious freedom as a limitation on the States.  It read: “

No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication:  If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed.  Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the “Catholicization” of American education.

SUPREME COURT - government v. states

As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court’s decision in 1922 in the case Prudential Insurance Company of America v. Cheek.  The case concerned the state of New York’s ability to restrict freedom of speech.  The decision read: “As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”

In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the 14th amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.

Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court’s 14thAmendment substantive due process jurisprudence.  2 of the 3 current “originalist” members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a “judicial usurpation” and an “oxymoron.” [See Chicago v. Morales, 1999  andU.S. v. Carlton, 1994]   Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to “repeat the process at will.”  He further wrote that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and would send the Court down the road of illegitimacy.  While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights.  Rather, they believe in the paths that have been traditionally, and constitutionally, provided – through legislation and through the amendment process.

Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the “Privileges and Immunities Clause” in theSlaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws.  As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated.  Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.

The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government.  What the government can’t do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding (“money with strings”).

Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8.  The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State.  The definition of a “sovereign” includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense.  Our government system is based on the notion of Dual Sovereignty.  That is enshrined in the 10th amendment.  The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else.  In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance.  And that is why the federal government has no “Police Powers.”  Only the states have police powers.  What are “police powers”?  In the United States, a state’s police power comes from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people.  The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution.  Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices.  Welfare is a state issue, unless it is an issue that touches on “all Americans, in general.”  The Supreme Court must stick to an opinion based on the interpretation of the Constitution.

In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” (dissenting opinion).  The term “states as laboratories of experimentation” is, of course, a not only a reference to federalism but a statement of one of its greatest benefits – innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing “of the necessity for a supply of ice at the place where it is sought to establish the business.”  The plaintiff was denied a license because it was deemed that there was a sufficient supply.  A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation.  In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court’s substantive due process jurisprudence.  The full comment reads: “There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14thamendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity.  To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote:  “Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems.”  In that case, the Washington Supreme Court held that the Washington Constitution’s protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court’s jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court’s lead.

In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school.  At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:

While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.

        The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Justice Kennedy, in his concurrence, argued that the Commerce Clause should be read to allocate to the states exclusively the power to regulate gun use in school zones. This result, he wrote, is dictated by federalism, under which “the States may perform their role as laboratories for experimentation.”

In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers’ attempt to “split the atom of sovereignty.”  The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.

There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: “The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens…. Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal].  But we should at least look.”

To the Supreme Court justice, the historical record is of little importance or concern.  To be sure, the historical record hardly, if ever, mattered in their deliberations.  Rarely are the original debates and writings of the ratification conventions cited.  They have only been cited 122 times total in the over 30,000 cases they’ve ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court’s existence – in the formative years. Sadly, they haven’t been consulted as the authority on the meaning and intent of the Constitution as they clearly are.  In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington’s term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires.  If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have “served to refute every conflicting claim regarding the elastic clauses,” as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.

With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court’s mantra has been: “WHERE THERE IS A WILL, THERE IS A WAY.”  It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people – including the intelligent ones – would never imagine.  Yet it will never do the same for the states.  While enlarging every possible delegation of power for the government, it has never once enlarged the states’ domain under the 10th amendment.  While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states.  And therefore, the delegate balance of power has shifted further and further towards Washington DC – a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.

The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state.  Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition.  Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it.  New Hampshire’s resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so).  Montana’s bill was very similar and it almost passed.

The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country.  In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the “We the People” online petition system).  The site was launched on November 7, 2011, the day after Obama was elected for his second term.  President Obama had promised to respond to each petition that collected at least 25,000.  As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more.  Texas, for example, collected over 100,000 signatures.  Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.

President Obama indeed responded.  Essentially the answer was NO….  A state has no right to secede. It is stuck with the federal government, whether it likes it or not.  This is the response the White House issued on January 11, 2013:

Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, ‘in contemplation of universal law and of the Constitution the Union of these States is perpetual.’ In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that ‘the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.’

        Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, ‘of the people, by the people, and for the people’ — all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.”

Essentially, the site, the initiative by the government was a ruse; a mere “feel-good” initiative.  It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized.  As Commodus’ sister Lucilla told her conniving brother in the movie GLADIATOR: “Give the people their illusions.”  As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment’s pause.

The people used to believe in our system of checks and balances – especially the courts – to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts.  Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they’ve also been in the business of legislating from the bench.  For the most part, federal courts have become the enemy of the people.  Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency.  Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts.  There is a reason that Americans have never viewed the federal government with more distrust.  Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government.  That percentage is less for Congress alone.  Less than a quarter of Americans believe that their representatives take their concerns to heart.  Less than that believe they can change the course their government is on.  [See Pew Research].

When you have a candidate who runs not on economic promises but on a promise “to protect your phone” (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can’t display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.

Frustration with the federal monopoly is growing.  Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.

Right now, we have to ask: Who watches the watchers?  The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide.  The Court’s nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.

As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government – this government – has transgressed limits and has overstepped its authority.  When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don’t believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained.  The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty.  The 10th Amendment reminds us of the balance of power: “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.”  By pitting the two sovereigns against one another, the balance is maintained.  Each one jealously guards and protects its sphere of power.  The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself.  And as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions. The other sovereign, the States, have no chair at the table.  And the only way our system can work — that is, work to protect the rights of the people rather than promote its own interests and longevity – is if the states get that chair at the table.

“If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself…. The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment.”   [John C. Calhoun, South Carolina Expositionand Protest, 1828]

In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general.  In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court.  With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state.  Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common – or federal – government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.

It is a moral imperative that we should seek to restore the proper balance.

How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012):  “The States are separate and independent sovereigns. Sometimes they have to act like it.”

References:
James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546–50, 579.

House of Delegates, Session of 1799–1800. (aka, Madison’s Report of 1800).  Referenced at:  http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

Allen Mendenhall, “Is the Fourteenth Amendment Good,” Mises Daily, January 2, 2015.  Referenced at:  https://mises.org/library/fourteenth-amendment-good

P.A. Madison, “Historical Analysis of the Meaning of the 14th Amendment’s First Section,”Federalist Blog, last updated August 2, 2010.  Referenced at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

Frank Turk, “Why the 14th Amendment Can’t Possibly Require Same-Sex Marriage,”Townhall, March 17, 2015.  Referenced at: http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full

Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)

Barron v. Baltimore, 32 U.S. 243 (1833)

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

Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795).  Referenced at: https://supreme.justia.com/cases/federal/us/2/304/case.html

The Slaughter-House Cases, 83 U.S. 36 (1873)  – The first US Supreme Court interpretation of the 14th amendment

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).

United States v. Lopez, 514 U.S. 549 (1995)

State v. Seibel, 471 N.W.2d 226  (Wis. 1991) (Bablitch, J., dissenting)

US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

Calder v. Bull, 3 U.S. 386 (1798)

Cooper v. Aaron, 358 U.S. 1 (1958)

Chicago v. Morales, 527 U.S. 41 (1999)

U.S. v. Carlton, 512 U.S. 26 (1994)

Moore v. East Cleveland, 431 U.S. 494 (1977)

Roe v. Wade, 410 U.S. 113 (1973)   [A woman has the fundamental right to have an abortion]

Bowers v. Hardwick, 478 U.S. 186 (1986)   [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty”]   Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].

Obergefell v. Hodges, June 26, 2015.  (Gay Marriage decision of 2015).    Referenced at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).

The Kentucky and Virginia Resolutions, Bill of Rights Institute.  Referenced at: http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/

Edwin S. Corwin, “A Basic Doctrine of American Law,” Michigan Law Review, Feb. 1914; pp. 247-250.  Referenced at:  http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents.  [Addresses the case Calder v. Bull].

Jefferson Davis  [The Abbebille Review, June 2014.  http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/

“Quotes from the Founding Fathers,” RenewAmerica, March 13, 2009.  Referenced at: http://www.renewamerica.com/article/090313

James A. Gardner, “The “States-as-Laboratories” Metaphor in State Constitutional Law,”Valparaiso University Law Review, Vol. 30, No. 2.  Referenced at:http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr

James G. Wilson, “The Supreme Court’s Use of the Federalist Papers,” Cleveland State University, 1985.  Referenced at: http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles

The White House Online Petition System, “Our States Remain United.  January 11, 2013.  Referenced at:  https://petitions.whitehouse.gov/response/our-states-remain-united

New Hampshire’s State Sovereignty Resolution (HCR 6 – “A Resolution Affirming States’ Rights Based on Jeffersonian Principles”)  –  http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

John C. Calhoun, South Carolina Exposition and Protest (1828).  Referenced at: http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf

Texas Governor Greg Abbott, press release (June 26, 2015).  Referenced at: http://gov.texas.gov/news/press-release/21131

Thomas Paine, Rights of Man (1791-1792).  Referenced at: http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/

The Federalist Papers.  Referenced at:  http://avalon.law.yale.edu/subject_menus/fed.asp

* Federal mandates:  Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]

TIME TO CHANGE THE SUPREME COURT: RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

Supreme Court - caricatures

Written and Proposed by Diane Rufino

RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

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

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “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”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance(1795)]. 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.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.