History Speaks Through the Monuments on our National Mall

jefferson-memorial-lit-up

by Diane Rufino, January 21, 2017

Yesterday I visited the Jefferson Memorial to commune with my favorite Founding Father. Jefferson is perhaps the single reason I am so very proud to be an American. The principles he articulated in the Declaration of Independence, which the Second Continental Congress adopted in 1776, laid the basis for our independence from Great Britain. It established the principles and government philosophy that defines us as a nation, and although it’s message is lost on most Americans, I am sure to remind my students how it laid the basis for government by proclaiming that power originates with the individual and that power can never be fully divested from them. The Declaration informed Britain and the rest of the world that the thirteen colonies were dedicated first and foremost to the recognition and preservation of individual liberty. To that end, they proclaimed “to a candid world” that individuals of those colonies have the natural right to a government of the people, by the people, and for the people. In other words, government serves the people and its primary role is, and should be, to protect their rights. Nowhere in our founding documents does it state that government is a permanent fixture. Nowhere does it provide that the government has the right to seeks its longevity or its permanence. Rather, it exists in form and organization just as long as it serves its legitimate ends. The people always have the right – even the duty – to alter or abolish it when it frustrates its purpose.  Jefferson and Madison, along with our other Founders, knew full well that power would corrupt if it was centralized enough in government, then government would eventually limit or even deny rights away to the people. And in many instances, we see that the fears of our Founders have come to fruition.

What I learned from Jefferson is that when it comes to citizenship, it is perhaps more important to represent an idea or an ideal than merely a physical location.

And so I sat inside the rotunda and gazed up for awhile at this under-appreciated Founding Father. I walked around the room and read some of his poignant quotes memorialized on the walls and reflected on their timeless message. Sadly, to some degree, our government has rejected his wisdom.  Then I went outside the rotunda and looked straight across the tidal basin towards the rest of the National Mall. I could easily see the Washington Monument.  And I could also see the White House.  What I couldn’t see was the Lincoln Memorial.  I thought about that for a moment. And then I began to  note its significance.

It’s true that the Jefferson Memorial and the Lincoln Memorial are not visible to one another. I think there is a reason for that, whether or not it was a conscious factor in the Mall’s design. Abraham Lincoln didn’t see eye to eye with Jefferson. In fact, his vision of government was quite different. While the Declaration of Independence clearly provides that individuals can alter or abolish their government, Lincoln adamantly proclaimed that the Union, and by extension the federal government, was to be perpetual. In fact, after he repeatedly ignored and even violated provisions of the Constitution, suspended habeas corpus, imprisoned journalists, publishers, newspaper owners, citizens and seized their property, waged war without a declaration, etc, he sought a resolution from Congress to excuse those violations. Such a resolution was proposed and it read: “For the preservation of the federal government,”…..  Congress would the actions of President Lincoln.  (The resolution was never voted upon because the session of Congress concluded for the year). Lincoln had to ignore the principles laid down in the Declaration if he was to use force to bring the South back into the Union and convince the North that he had the power to do so.

President Lincoln destroyed the notion of limited government and its relationship to the individual, as promised in the Declaration, and our country has never sought to reclaim those ideals. Why?  Because government had become so strong and no one, no state, and certainly no government official had the guts to challenge the creature that the government had become. States have cowered and caved. They have tacitly relinquished their independence and have become subjugated to the design and will of the federal government. Perhaps that is why, when the government designed the National Mall, it put the memorial to Abraham Lincoln at the most prestigious position. Its layout is spectacular; Lincoln sits on high, looking out over a long reflecting pool, to the strongest branch of government – Congress. Lincoln is rewarded and glorified because he is the president who achieved the most in transforming the government into one of great power and influence and coercion over its independent parts (the States). Lincoln, in a sense, destroyed the ideals that inspired our founding generation to fight for their independence.

The Jefferson Memorial directly faces the White House – the home of our President and Chief Executive. The White House does not face the Lincoln Memorial.  Could it be that this lay-out was intended to remind Presidents of Jefferson’s ideals and the principles of government outlined in the Declaration?  Could it be that the president of the United States should forever be reminded that government is not a tool of an ambitious president (as it was for Abraham Lincoln) but rather an institution which serves the people and their interests in life, liberty, and happiness.

Something to think about.

What I can say is that when I listened to Donald Trump’s inaugural address – and particularly the part when he announced: “Every four years we gather on these steps to carry out the orderly and peaceful transfer of power….  Today’s ceremony, however, has a very special meaning because today we are not merely transferring power from one administration to another or from one party to another, but we are transferring power from Washington, D.C., and giving it back to you, the people.”  — I couldn’t help but smile and think to myself how Jeffersonian he sounded.

Maybe, at least for the next few years, we can enjoy a government of the people, by the people, for the people. Maybe Trump, in fact, gets it.

inauguration-2017-in-front-of-jefferson-memorial-very-good

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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Compact Theory: Security for American Liberty

CONSTITUTION - void

by Diane Rufino, July 18, 2016

A contract is a promise, or set of promises, between willing parties. The law of contracts is a body of law as old as the Anglo-American division of law and equity. When a contract is breached, law and equity provide remedies. In fact, the definition of contract includes the phrase “for the breach of which the law gives a remedy.”  Court of law provide monetary remedies for breach while courts of equity provide unique remedies designed to relieve the aggrieved party when monetary awards are inadequate, such as forcing performance by the defaulting party.  [This is where we get the words in Article III. Section 2, of the US Constitution: “The judicial power of the United States shall extend to all cases, in Law and Equity.”]  Synonymous with the term “contract” are “agreement” and “compact.”  Throughout Anglo-American history, people have organized their government through compacts or “social compacts.” The philosopher, John Locke, who our Founders leaned most heavily in founding our country and drafting our foundational documents, explained that individuals, when organized in societies, form their government by way of social compact.

Historical Anglo-American jurisprudence provided a party aggrieved by a breach of contract certain choices by law:  First, he could choose to proceed to a court of law and seek damages for the loss of money in reliance upon the contract being fulfilled. In such a court, the aggrieved party would seek from the party in breach such sums as would place him in as good a position as he would have been had the contract been fully performed.  Alternatively, a court of equity could enforce the contract for the aggrieved party by ordering “specific performance” by the defaulting party – that is, the court would force the party to fulfil his obligations under the contract. Finally, Anglo-American equity jurisprudence provided for another remedy for breach of contract – “rescission,” or the annulment of the contract. Since the end of the eighteenth century in England, rescission has often been used as a remedy in conjunction with “restitution.” The aggrieved party would ask the court to annul the contract and, at the same time, ask that he be made whole for his own performance, thereby placing him in the same position he occupied before he entered into the contract.

For a States to claim the right of secession from the Union, the Constitution must be construed to be an agreement created by the States as parties.

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.”  If, then, the Constitution is a compact, what is the remedy for a State or a group of States harmed by a breach of the Constitution by the federal government or other States? [Under Agency law, the “agent” (government) would be fired].  The only remedy, short of persuading the party or parties in breach to conform, is the equitable remedy of rescission.

As most people already know, several states posed obstacles to the adoption of the US Constitution and the formation of the new Union. The states of Virginia, New York, North Carolina, and Rhode Island proved to be battleground states.  Ratification by the State of Virginia was made possible only so long as the people of Virginia expressly and specifically retained the right of rescission. The Virginia resolution of ratification of June 26, 1788 read, in part: “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.”  The vote in favor of adoption was narrow, 89-79.  Virginia was only able to obtain this vote by linking ratification to amendments to be added for a Bill of Rights, which they recommended.

In New York, the battle was just as fierce. Like Virginia, the resolution of ratification was made expressly subject to its peoples’ right of rescission. It read, in part: “We, the delegates of the people of the State of New York do declare and make known that the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  The vote in favor of adoption was 30-27. Also following Virginia’s lead, the delegates to the NY Ratifying Convention then presented a veritable catalogue of rights that they believed should be added to the Constitution by way of amendment (a Bill of Rights).

North Carolina and Rhode Island were particularly skeptical. They didn’t ratify the Constitution until after George Washington was already sworn in as the first president of the United States in 1789. They waited until the first US Congress presented a Bill of Rights, as the States has demanded. North Carolina finally ratified the Constitution on November 21, 1789 and Rhode Island ratified on May 29, 1790 (after refusing to consider ratification and joining the Union seven times!!).  Like Virginia and New York, Rhode Island adopted the Constitution subject to an express right to resume their delegated powers. It’s Resumption Clause read, in pertinent part:

      We the delegates of the people of the state of Rhode Island and Province Plantations, duly elected and met in Convention, do declare and make known

     I.  That there are certain natural rights of which men, when they form a social compact, cannot deprive or divest their posterity – among which are the enjoyment of life and liberty, with the means of acquiring, possessing, and protecting property, and pursuing and obtaining happiness and safety…..

   III.  That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.

Because the adoption of the Constitution by Virginia, New York, and Rhode Island was accepted including their Resumption Clauses, those stipulations became part of the agreement or compact, thereby providing the same benefit to all the States of the Union.

The framers and ratifiers of the Constitution unquestionably understood the Constitution to be a “compact.” The voluminous records documenting the debates of the Constitutional Convention in Philadelphia of 1787 and the State Ratifying Conventions are replete with references to the Constitution as a “compact.” The Federalist Papers and the Anti-Federalist Essays use the same language, arguing for and against the ratification of the Constitution, respectively.  Thomas Jefferson and James Madison, the authors of our most important foundational documents, referred to the Constitution as such in their Kentucky Resolutions of 1798 and 1799 and Virginia Resolutions of 1798, respectively and the Southern States, in their Ordinances of Secession did likewise. When Massachusetts attempted to secede from the Union in 1814-1815, it also referred to the Constitution as a compact from which it retained the right to rescind. James Madison declared long after the ratification of the Constitution that “Our governmental system is established by a compact, not between the Government of the United States and the State governments, but between the States as sovereign communities, stipulating each with the other a surrender of certain portions of their respective authorities to be exercised by a common government, and a reservation, for their own exercise, of all their other authorities.”

If the Constitution is a compact, and it could be rescinded or annulled upon a breach, what would be sufficient to constitute a breach?  Whatever would constitute a breach is left wholly to the States seeking the extraordinary remedy of rescission. Obviously, in the words of James Madison’s 1800 Report on the Virginia Resolutions of 1798, the offensive act would have to be “a deliberate, palpable, and dangerous exercise of power not granted by the compact.”

While the governments of monarchs and dictators that ravaged Europe for centuries were based on the “universal law” that governments are not created by instruments that provide a mechanism for their own dissolution, the American government system flips that system on its head. The Declaration of Independence, embracing Natural Law and rejecting the Divine Right of Kings, proclaims that governments are only temporary in nature and are instituted among the People, by the People, and for the People for the primary purposes of securing their inalienable rights and for effecting their happiness. “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”  The Constitution, drafted to embrace the principles proclaimed in the Declaration, is therefore a revolutionary document. It is a revolutionary instrument created by a revolutionary people at the end of a successful revolution fought to end the rule of a monarch on the American States and the American people and to guarantee fundamental liberties to all citizens. The government created by the Constitution is worth keeping only so long as it serves this end. Sadly, this fundamental understanding of the formation of the Union was completely lost on Lincoln (or he was willfully and ambitiously blind to this understanding). The War of 1861 and the lies perpetrated on the country by the “victors” (because the victors have the luxury of telling the story and vilifying the conquered) have obscured the truth of our Constitution and our history. The transformation of our country from a republic to one oppressed by an over-zealous central government in the consequence of these lies.

The Constitution’s text and history before the Civil War 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.

If the government created by the Constitution ceases to guarantee liberty, there must be a remedy available to those oppressed by it. It is not the courts; the citizens may not even have standing to challenge the actions of the federal government, and moreover, the courts are creatures of the very government that would be the oppressor. To be sure, courts are not competent to even address constitutional challenges to acts of Congress that allege that those acts undermine the liberties of citizens and invade the powers reserved to the States. Resorting to the ballot may be ineffectual; the votes of a few metropolitan areas may negate the votes of all other regions. More than that, fundamental liberties should never be subject vote. What remains to protect individual liberties are the States as parties to the Constitution. As parties, they must exercise their “duty” to protect their citizens from a federal government that has grown too powerful, too intrusive, too dictatorial. They do that by exercising the right that parties to agreements have exercised for literally hundreds of years: to stand up to actions that invade the liberties of citizens and the reserved powers of the States by, first, nullifying the unconstitutional acts and then, if the federal government persists, seceding. The framers and ratifiers would not have thought any differently. After all, although they were revolutionaries who created a revolutionary form of government, they were also the inheritors of an Anglo-American legal tradition that had been developed over hundreds of years, which defined contracts and remedies available to those injured by the breach thereof.

SECESSION - individual states.jpg

The conflicts that divide Americans today are certainly as profound as those in other periods of our history, including those that compelled the Colonies to separate from Great Britain, those that troubled Massachusetts in 1815, and those that troubled the Southern States from 1828 to 1860.  The numerous laws, voluminous regulations, and many illegitimate rulings by the Supreme Court have abused and usurped our rights and liberties and have, in effect, evidenced the design by the federal government to consolidate us into a one-size-fits all nation untethered to the States which used to be obligated to protect us. The reasons for the Constitution have been frustrated and now forgotten. Clearly, the grounds to rescind the compact are legitimate and numerous.

In the history of the world, principles have always been more important than geographical boundaries.  We have to ask ourselves what our alternatives are in order to preserve our traditional American principles. If we continue to believe they are being subverted and eroded, and if we continue to believe that our rights, our freedoms, and our liberty are being threatened and violated, then we have to ask ourselves what our rightful remedies are.

 

References:

Donald Livingston, ed. “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.

Kent Masterson Brown, “Secession: A Constitutional Remedy,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.

Thomas DiLorenzo, “The Founding Fathers of Constitutional Subversion,” in “Rethinking the American Union for the 21st Century,” Pelican Publishing Company, 2013.

INDEPENDENCE DAY: The Story of Us

4th of JULY - red, white, and blue wall

by Diane Rufino, July 4, 2016

Independence Day – What it really means….

What does Independence Day – the 4th of July – mean to you?  Is it just a holiday to eat, drink, and light off fireworks?  Do you display and wave the flag of the United States out of habit – because everyone else on the block does it?  Do you cover your table with a plastic tablecloth of stars and stripes and decorate your yard with red, white, and blue because that’s what Target and Walmart remind you to do with its holiday displays and sales?   Do you actually understand what the 4th of July signifies?  Did you sleep through that lesson in American History Class? Was it even taught to you at all?

I just hope you aren’t one of those Americans who doesn’t think it matters.

When I was very young, I thought Independence Day marked the day when the 13 colonies defeated the British for our independence.  Then in middle school, I learned that it marked the date the Declaration of Independence was signed.  That was the extent of my understanding until I did my own reading.  Soon I learned that not only was the Declaration of Independence signed on July 4, 1776, but that it was an act of treason against the British Crown. It was an act of treason because while the colonies were fighting for their independence, the British were fighting to quash their rebellious nature for good. Rebellion against the Crown was high treason and it would not be tolerated.

But it wasn’t until I graduated law school that I was finally able to appreciate the real significance of the Declaration of Independence.  Simply put, as its author Thomas Jefferson explained: “The Declaration of Independence… is the declaratory charter of our rights, and of the rights of man.”  And in that magnificent document, Jefferson has laid out the natural order of our rights and the natural purpose and limits of government.

The document was almost forced on the colonies by history’s happenstance. It began with the colonies’ restlessness in the wake of an over-zealous King and Parliament which first sought to extract tax revenue from them (without representation) and then to oppress and subjugate them as a means of punishment. They were punished for daring to stand up for their rights as Englishmen, as Englishmen had done for over 500 years of their history.  Indeed, the history of England has been a history of repeated attempts, first by the barons and then by all subjects, to assert basic human rights and to demand from the King a promise (a charter) that he will respect such. Some of the attempts were successful and some only temporary, but all of England’s notable charters were signed and limited the reach of the King and Parliament, even if only for a very short time.

Some of these charters and other significant documents include: The Charter of Liberties of King Henry I (1100), the Magna Carta (1215), the Petition of Right (1628), the Grand Remonstrance (1641), and the English Bill of Right of 1689.  This history is critical for the foundation for our country because all total, these documents establish the notion that government must respect boundaries on the individual, acknowledging that they have certain essential rights and liberties.  The rights and liberties asserted and re-asserted in these documents are the “rights of Englishmen” that the colonists most eagerly embraced and were most eager to protect.

Author Brion McClanahan explains the significance of England’s grand history in his article Rethinking the Declaration of Independence: “In 1100, King Henry I of England agreed to restrictions on his power through the Charter of Liberties. The English barons rejected absolute authority and sought to preserve traditional decentralized “government.” Just over one hundred years later, in 1215, King John was forced again by the English nobles to sign the Magna Charta. The “Great Charter,” as it is known in English, declared that the king was not above the law – making him essentially equal to the nobles – and it resisted the trend toward centralization in England. Though on the books, the Magna Charta was often ignored by more powerful English monarchs, but several of its provisions became the basis of English common law, most notably the writ of habeas corpus.” (See the Habeas Corpus Act of 1679).

In October 1214, King John returned to England in disgrace. His mission to reconquer his lost territory in northern France had failed and other military campaigns were unsuccessful as well. He taxed England’s barons heavily to finance these campaigns and they were not happy.  Upon his return, he found that a group of angry barons from across the country had formed an association and were prepared renounce him as king. Over the next eight months, they made repeated demands to the King, requesting that he give them a guarantee that he would observe their rights. But the negotiations amounted to nothing. And so, on May 5 of that year, the barons gathered and agreed to declare war on King John. On May 17, 1215 they captured London, the largest town in England, without a fight.  With London lost and ever more supporters flocking to the side of the barons, the King John realized he would have to address their concerns.

On June 8, he notified the barons of his willingness to negotiate. Over the next few days, the barons assembled in great numbers at Runnymede, a relatively obscure meadow just a few miles from Windsor castle, where King John was based. They arrived to repeat their demands and negotiate peace terms. On June 15, the barons presented their terms to the King and he signed the great document – The Great Charter (“Magna Carta”).

In Chapter 39 of Magna Carta, one of the document’s most important clauses, King John made the following promise:  “No freeman shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of his equals or by the law of the land.”

Here, it was agreed that the Crown and his administration would not arrest, outlaw, banish, or incarcerate any free man, deprive him of his rights, possessions or legal standing, or otherwise take official and forceful action against him, except in accordance with the lawful judgement of his equals or in accordance with the laws of the Kingdom. This was, in embryonic form, the principle of due process of law: The government shall not deprive any person subject to its jurisdiction of life, liberty, or property without due process of law. The Magna Carta provided that justice was to be guaranteed to every person in the Kingdom, that the right of justice would not be sold, delayed, or denied to any person. Thus, this critical, historic document provided that every freeman — i.e., every Englishmen who was not a serf — was to enjoy security and protection from illegal interference by the King (ie, government) in his person and property.   [See Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government….”]   The terms listed in the Magna Carta would later be referred to as “the ancient rights and liberties of Englishmen” in the English Bill of Rights of 1689.

King John, in giving his consent to Magna Carta, agreed that: (1) the Monarch was subject to the law of the Kingdom and (2) the law placed limits on royal authority. This reflected an early stage in the development of the central idea of English and American constitutionalism — the idea that the ruler was not above the law and therefore had to abide by the law and stay within the limits the law imposed on his power.  [See Dr. Almon Leroy Way, Jr.]

Under Magna Carta, the King still governed England, but he had to share with the barons one important sphere of political authority — the power of taxation. All royal requests for extraordinary taxes had to be submitted to the Common Council for its consideration and decision. When it came to the King’s raising revenue by means other than collecting the feudal fees and aids in amounts due him by customary right, he had to share with the barons, the largest and most powerful bloc in the Common Council, the authority to make binding decisions. The requirement, stipulated in Magna Carta, that the King submit proposals for extraordinary taxation to an assembly of his leading subjects — the barons and the Church officers of high rank — was one small but significant step on the long road to firmly establishing as a constitutional guarantee, truly binding on the Monarch and all other officers of the government, the age old principle of English government that no subject could be taxed without his consent, given by the subject directly in person or indirectly through elected representatives in a legislative assembly.   [See Dr. Almon Leroy Way, Jr.].

When Britain began taxing the colonies without allowing them representation in Parliament, particularly with the Stamp Tax, the colonists asserted this basic right from the Magna Carta in their protest slogan “No taxation without representation.”  The phrase actually originated with Massachusetts attorney James Otis about 1761, who proclaimed: “Taxation without representation is tyranny!”

After the Magna Carta, the Petition of Right of 1628, which was written by Parliament, was presented to King Charles I to re-assert the civil liberties of his subjects.  The Petition contained four main points: (1) No taxes could be levied without Parliament’s consent; (2) No English subject could be imprisoned without cause–thus reinforcing the right of habeas corpus; (3) No quartering of soldiers in citizens’ homes; and (4) No martial law may be used in peacetime. Each of these four points enumerated specific civil rights that Englishmen felt Charles I had breached throughout his reign. Although he’d never been that popular as the monarch, his abuse of power against the people escalated to an intolerable level after Parliament refused to increase taxation and finance his unpopular foreign policies. The purpose of the Petition was to seek redress for the serious grievances Charles had committed.

When Charles showed no sign of repenting, Parliament drafted an extensive list of grievances which it presented to him on December 1, 1641. The grievances included 204 instances of gross abuses of the King’s power and usurpations of the rights of the people.  Preceding this list of grievances were the following significant paragraphs:

For the preventing of those miserable effects which such malicious endeavours may produce, we have thought good to declare the root and the growth of these mischievous designs: the maturity and ripeness to which they have attained before the beginning of the Parliament: the effectual means which have been used for the extirpation of those dangerous evils, and the progress which hath therein been made by His Majesty’s goodness and the wisdom of the Parliament: the ways of obstruction and opposition by which that progress hath been interrupted: the courses to be taken for the removing those obstacles, and for the accomplishing of our most dutiful and faithful intentions and endeavours of restoring and establishing the ancient honour, greatness and security of this Crown and nation.

The root of all this mischief we find to be a malignant and pernicious design of subverting the fundamental laws and principles of government, upon which the religion and justice of this kingdom are firmly established.

The Grand Remonstrance would help precipitate a civil war in England and eventually lead Parliament to file official charges of high treason against Charles I.  He would be tried, convicted, and executed (beheaded) in 1649. His son Charles II was exiled and his other son James II was able to escape to France dressed as a girl.

When England erupted in this civil war, the Parliament asserted its authority and suspended the reign of the Monarch, and by 1688 had become the driving force behind English law and policy. From 1649 to 1660, England became a republic. At first it was ruled by Parliament, but in 1653, Oliver Cromwell, commander of the army, became Lord Protector of England and served until he died (1658; his son took over briefly). Eventually the blood line of Charles I was restored in 1660 first with Charles II (who sat on the throne at the time of the plague and the great fire of London) and then in 1665, with James II. He was terribly unpopular, and in fact, was widely hated by the people. Not only did he force his Roman Catholic faith on the British people, but he willingly allowed the persecution of Protestants. He was forced to give up the crown in the Glorious Revolution (the “Bloodless Revolution”) of 1688.

When King James II was expelled from England in 1688, Parliament invited King William III of Orange and his wife Mary II (daughter of James II), of the Netherlands, to assume the throne.  Parliament promised no resistance. The only requirement was that they sign the English Bill of Rights that Parliament had drawn up on behalf the people. It condemned James II for violating the rights of Englishmen, which the Parliament called the “laws and liberties of this kingdom,” and placed restrictions on the powers of the monarch. William and Mary “gladly accepted what was offered them” and signed the English Bill of Rights.

Those from England who settled the colonies, particularly Massachusetts, seeking freedom from religious persecution (Puritans and Pilgrims) and others, brought this history – and these rights – with them. After all, they were still Englishmen; they were living on a continent claimed by England and establishing settlements and communities pursuant to land patents issued by the King.

But the bond of affection would seem to be one-way only.  While the colonists sought to live as loyal subjects to the Crown, enjoying the same the rights and liberties as the citizens of England, England sought to exploit the colonies for raw materials, trade, and taxes.  For several years, things were good. No complaints.  But just as the British colonies were growing and expanding, there were French colonies growing and expanding as well – in the frontier region west of Virginia up to Canada. They were mainly fur-trappers. Eventually, Britain felt its American colonies and interests were being threatened and the two empires went to war. It lasted seven years (the French-Indian War, aka, the Seven Years War, 1754–1763), and eventually, the French were expelled and England secured greater territory. Believing the war was primarily for the benefit of the safety and security of the colonies, Parliament enacted a series of taxes on the colonies to recoup the money it had spent. [Note that around 1750, the plantations were established and against the wishes of the colonies, Britain pushed the slave trade on them to ensure that raw materials such as sugar, tobacco, indigo, cotton, and rice were produced plentifully and productively and shipped to England]

Accordingly, Parliament enacted the following taxes:  The Navigation Acts (1651, 1660, and 1663; duties on tobacco and molasses, to name a few), the Plantation Duty Act (1673; a duty on plantations), the Sugar Act (1764; a duty or tax on sugar), the Stamp Act (1765; a tax on all documents, including legal documents, calendars, cards, etc), and the Townshend Acts (1767; duties on items imported by the colonists, including glass, lead, paints, paper, and tea).  The colonists were outraged.  They weren’t outraged at the taxes themselves, but rather by the violation of their essential right to have representation in the legislative body that passes such tax measures.  “No Taxation Without Representation!”  They compared the current king, King George III, to Charles I for indiscriminately taxing the colonies without their consent. The Sons of Liberty organized at this time – originating in Massachusetts and New York and eventually having a presence in all thirteen colonies – and they were extremely effective at protesting these taxes and frustrating their enforcement.

Protests heightened with the passage of the Tea Act in 1673. The Tea Act allowed the British East India Company, which had a surplus of tea, to have a monopoly on import tea to the colonies. In passing this act, Parliament actually thought it was doing a favor to the colonies by providing tea at a reduced price (due to the surplus).  In fact, the cost of the tea, together with the new tax (“a mere 3 pence”), would be lower than the cost of the tea provided by other sources.  But Parliament didn’t get it.  The colonists didn’t think government had the right to force a monopoly on them and interfere with the trade of colonial tea merchants. Colonial merchants couldn’t compete with the less-expensive tea that the East India Tea Company provided so abundantly. And so, the colonists once again took matters in their own hands. In Pennsylvania and New York, colonists did not allow British tea ships to enter the large city ports. They sent ships out into the harbors to block the tea ships.  In Boston, they had a “party.”  On that evening of December 16, 1773, approximately 100 “radicals,” members of a secret organization of American Patriots called the Sons of Liberty, dressed up as Mohawk Indians, boarded three East India Company ships, broke open all 342 wooden chests of tea, and dumped them into the Boston Harbor.  The value of the tea destroyed, in today’s market, would amount to about $1 million.

Well, that particular act of protest was the one that the broke the camel’s back. At first King George III didn’t seem too perturbed at the incident, but soon, the tide of British public opinion would grow against the colonists, whom they regarded as rebellious and childish, and that rising sentiment would force Parliament and King George to punish the citizens of Boston for their recalcitrance. Parliament would no longer tolerate disobedience; the colonies’ “rebellious spirit” would finally have to be addressed and they would have be made to obey British laws. Parliament would no longer be soft when it came to obeying British laws. It would show the colonies what happens to those who happen to have a “rebellious spirit” and are disobedient, and in doing so, reinforce upon them the need to obey its laws.  What followed would be a series of laws called the “Coercive Acts” (also referred to as the “Intolerable Acts”).

On March 28, 1774, in response to the Boston Tea Party, Parliament passed four acts which together became known as the Coercive Acts. These individual acts included: (1) The Boston Port Act, which closed the port of Boston until damages from the Boston Tea Party were paid (no ship carrying colonial goods could enter or leave Boston Harbor until the Massachusetts Colony paid for all the tea that was destroyed);  (2) The Massachusetts Government Act, which effectively revoked Massachusetts Charter of the Province of Massachusetts Bay (1691), its colonial charter, prohibited democratic town meetings, and turned the royal governor’s council into an appointed body with wide-ranging powers (in other words, shifting government authority from Massachusetts colony to the royal governor);  (3) The Administration of Justice Act, which made British officials immune to criminal prosecution in Massachusetts; and  (4) The Quartering Act, which required colonists to house and quarter British troops on demand, including in their private homes as a last resort.

Indeed, the situation was intolerable. Parliament ordered the Royal Navy to blockade the Boston Harbor, preventing ships from entering and bringing in goods and supplies and blocking colonial merchant ships from leaving and selling their goods.  By fiat, the basic structure of colonial government was altered. England was now governing the colony. To add insult to injury, King George appointed General Thomas Gage, who had served as the head of the British Army in North America, as the new Governor of Massachusetts, and he brought troops with him.  On May 13, General Gage arrived in Boston with four regiments of troops. Aside from the fact that the colonists felt stripped them of their previously enjoyed rights, perhaps more unnerving was the presence of four thousand British soldiers in Boston. Under the Quartering Act, there would be guaranteed residence for the British Army and the citizens of Massachusetts would be required to quarter them, if necessary (otherwise they would have to remain on ships).  The Quartering Act required the colonies to house British soldiers in barracks provided by the colonies. If the barracks were too small to house all the soldiers, then localities were to accommodate the soldiers in local inns, stables, ale houses, and houses of sellers of wine. Should there still be soldiers without accommodation after all such public houses were filled, the colonies were then required to take, hire and make fit for the reception of his Majesty’s forces, such and so many uninhabited houses, outhouses, barns, or other buildings as shall be necessary.  Finally, British officials could abuse these acts and be free from prosecution in the colony.

In response, provincial militias started to gather munitions and store them in the countryside out of reach of the British regulars.

On May 26, Parliament dissolved Virginia’s colonial government – its Virginia House of Burgesses.  And on September 1, General Gage seized the Massachusetts Colony’s arsenal at Charlestown, located just across the Charles River from Boston – near Bunker Hill.

On Benjamin Franklin’s advice, the colonies decided to meet in a common body to address Britain’s treatment of the colonies, in particular the blockade of Boston Harbor and the Intolerable Acts on the Province of Massachusetts.  And so, on September 5, the First Continental Congress met with 56 delegates in Carpenters Hall in Philadelphia. Twelve out of the thirteen colonies sent delegates (Georgia did not send any). The Continental Congress, which would meet on two separate occasions, became the governing body of the “united” colonies during the time leading up to and then during the American Revolution.

On October 14, the First Continental Congress adopted a Declaration and Resolves against the blockade, the Coercive Acts, the Quartering of troops, and other objectionable British actions. These resolutions listed a series of grievances against Parliament (where have we seen that response before?) and appealed to the King to intercede on behalf of the colonies for proper respect for their rights as Englishmen. The Declaration and Resolves began as follows:

The good people of the several colonies of New-Hampshire, Massachusetts-Bay, Rhode Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Newcastle, Kent, and Sussex on Delaware, Maryland, Virginia, North- Carolina and South-Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies to meet, and sit in general Congress, in the city of Philadelphia, in order to obtain such establishment, as that their religion, laws, and liberties, may not be subverted: Whereupon the deputies so appointed being now assembled, in a full and free representation of these colonies, taking into their most serious consideration, the best means of attaining the ends aforesaid, do, in the first place, as Englishmen, their ancestors in like cases have usually done, for asserting and vindicating their rights and liberties, DECLARE,

That the inhabitants of the English colonies in North-America, by the immutable laws of nature, the principles of the English constitution, and the several charters or compacts, have the following RIGHTS:

Resolved, N.C.D. 1. That they are entitled to life, liberty and property: and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.

Resolved, N.C.D. 2. That our ancestors, who first settled these colonies, were at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural- born subjects, within the realm of England.

Resolved, N.C.D. 3. That by such emigration they by no means forfeited, surrendered, or lost any of those rights, but that they were, and their descendants now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.

Resolved, 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council: and as the English colonists are not represented, and from their local and other circumstances, cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved.

The Declaration and Resolves was presented to the King and then to Parliament on January 19, 1775.  King George laughed and dismissed the document and the Parliament did not even address it.  King George, to whom the Declaration was addressed, never even offered a formal response, for in his mind, he did not have to submit to the demands of the colonists, whom he regarded as insolent children.  He famously said to the Prime Minister Lord North: “The die is now cast, the colonies must either submit or triumph.”  He would not negotiate with them. His tacit response made it clear that he meant to maintain political unity between the colonies and the United Kingdom even at the expense of the happiness of the colonists.

Word of the Intolerable Acts and the subjugation of the colonists in Boston began to spread to other colonies and they began to react. Perhaps the most famous response came from Virginia, and Patrick Henry!

Because England had dissolved Virginia’s colonial government, its Virginia House of Burgesses, the state’s colonial leaders were forced to meet in secret.  And so they did, on March 20, 1775, at a small church which is now called St. John’s Church, in Richmond, away from the Capitol in Williamsburg. Delegate Patrick Henry presented resolutions to raise a militia, and to put Virginia in a posture of defense. He believed that martial law would eventually come to Virginia. Henry’s opponents urged caution and patience, holding out hope that the King would eventually respond – and respond generously – to the Declarations and Resolves.  On the evening of the 23rd, Henry presented a proposal to organize a volunteer company of cavalry or infantry in every county of Virginia and delivered a fiery speech in support of it.  His final words “Give Me Liberty or Give Me Death!” would be a rallying cry for the cause of independence and indeed, his entire speech is probably the most stirring, most passionate case in defense of liberty in our American history.

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

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

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

They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house? Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot? Sir, we are not weak if we make a proper use of those means which the God of nature hath placed in our power. Three millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us. Besides, sir, we shall not fight our battles alone. There is a just God who presides over the destinies of nations; and who will raise up friends to fight our battles for us. The battle, sir, is not to the strong alone; it is to the vigilant, the active, the brave. Besides, sir, we have no election. If we were base enough to desire it, it is now too late to retire from the contest. There is no retreat but in submission and slavery! Our chains are forged! Their clanking may be heard on the plains of Boston! The war is inevitable²and let it come! I repeat it, sir, let it come.

It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace²but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!

Patrick Henry succeeded in convincing the body of delegates to pass his resolutions. Virginia would call up a militia.

On April 14, 1775, General Gage received orders from London to take decisive action against the rebel-rousers of Boston – the leaders of the Sons of Liberty, Samuel Adams and John Hancock. In the wee hours of the April 19, seven hundred British troops were dispatched to Lexington, where they would capture Adams and Hancock, and then to Concord, where they would seize a secret stockpile of colonial gunpowder (Gage had received intelligence about its location).  But spies and friends of the Sons of Liberty leaked word of Gage’s plan. One lantern hanging from Boston’s North Church informed the countryside that the British were going to attack by land and two lanterns if they were going to attack by sea. A series of horseback riders – Paul Revere, William Dawes and Dr. Samuel Prescott – galloped off to warn the countryside that British troops were coming.

Word spread from town to town, and militias prepared to confront the British and help their neighbors in Lexington and Concord. Colonial militias had originally been organized to defend settlers from civil unrest and attacks by French or Native Americans and selected members of the militia were called “minutemen” because they could be ready to fight in a minute’s time. Sure enough, when the advance guard of nearly 240 British soldiers arrived in Lexington during the early morning hours, they found about 70 minutemen waiting for them on Lexington Green. Both sides eyed each other not knowing what to expect or what to do. Suddenly, a bullet rang out. It would be known as “the shot heard round the world.”  Seven American militiamen were killed in that skirmish.  The British retreated to Concord, where they found an even larger, more organized group of militiamen. They then retreated back to Boston, and as they did so, new waves of Colonial militia intercepted them. Shooting from behind fences and trees, the militias inflicted over 125 casualties, including several officers.  The American Revolution had begun.  By happenstance…. not because of the blockade of Boston Harbor, not because of the Intolerable Acts, not because of the quartering of troops, not because of King George’s rejection of the pleas of the Colonies in the Declarations and Resolves, and not because of the other instances of mistreatment of the colonies. It was because the British had come for their ammunition.

Thus, the war for independence began over the colonists’ right to bear arms and store ammunition for their defense.

Not fully expecting the standoff in Massachusetts to explode into full-scale war, the thirteen colonies agreed to reconvene the Continental Congress in Philadelphia on May 10, 1775.  Samuel Adams, John Adams, Benjamin Franklin, John Hancock, Patrick Henry, Thomas Jefferson, and George Washington were some of the esteemed delegates.

By the time the Second Continental Congress met again, war was already underway, and so its purpose primarily became to conduct the war and manage the efforts.  Already, colonial militias had seized arsenals, driven out royal officials, and besieged the British army in the city of Boston. On June 14, the Congress voted to create the Continental Army out of the militia units around Boston and quickly appointed Congressman George Washington of Virginia as the Commanding General of the Continental Army.  On July 6, Congress approved a Declaration of Causes outlining the rationale and necessity for taking up arms in what had become the American Revolutionary War.  The original draft was written by Thomas Jefferson but the final was written by John Dickinson of Pennsylvania. Much of Jefferson’s language was retained in the final draft. The Declaration insisted that the colonists do not yet seek independence from the mother country but were forced to take up arms “in defense of the Freedom that is our Birthright and which we ever enjoyed until the late Violation of it”, and will “lay them down when Hostilities shall cease on the part of the Aggressors.’  [Interestingly, the very first sentence of the declaration includes a condemnation of the institution of slavery, which the Crown imposed on the colonies].

On July 8, 1775, the Second Continental Congress drafted what was called the Olive Branch Petition, which it sent to the British Crown as a final attempt at reconciliation.  In it, the colonies expressed their collective desire to remain loyal to the British crown. King George, however, refused to receive it.

Rather, on October 27, the King spoke before both houses of the British Parliament to discuss the growing concern about the rebellion in America, which he viewed as a traitorous action against himself and Great Britain. He began his speech by reading a “Proclamation of Rebellion” and urged Parliament to move quickly to end the revolt and bring order to the colonies.  He spoke of his belief that “many of these unhappy people may still retain their loyalty, and may be too wise not to see the fatal consequence of this usurpation, and wish to resist it, yet the torrent of violence has been strong enough to compel their acquiescence, till a sufficient force shall appear to support them.” With these words, the king gave Parliament his consent to dispatch troops to use against his own subjects, a notion that his colonists believed impossible.

At this point, note that just as the British continued to implore the King to respect their rights and liberties with their various charters and petitions and remonstrances, the colonists followed their same path. The colonies would have preferred to remain associated with Great Britain through bonds of affection and respect, sharing the history and bounded government that had been established for over 500 years, but for over 15 years, the actions and reactions by King and Parliament amounted to “a history of repeated injuries and usurpations” which were clearly designed to establish absolute rule over the colonies. We can see how England’s own history is providing the path – even the format and the words – for Jefferson’s Declaration of Independence.

Thomas Paine, who moved to the colonies from England at the end of 1774, published his pamphlet “Common Sense” in January 1776.  Common Sense advocated independence from Great Britain; Paine used moral and political arguments to encourage common people in the Colonies to fight for an independent government – one that suited their happiness; he appealed to their common sense. And it worked. The publication was wildly popular.

The two sides had once and for all reached a final political impasse and the bloody War for Independence would now be conducted in earnest.  The skirmish had now become a war for independence.

On April 12, the state of North Carolina authorized her delegates to the Continental Congress to vote for independence. This was the first official action by a colony calling for independence. The 83 delegates present in Halifax at the Fourth Provincial Congress unanimously adopted the Halifax Resolves.  The Resolves read:

The Select Committee taking into Consideration the usurpations and violences attempted and committed by the King and Parliament of Britain against America, and the further Measures to be taken for frustrating the same, and for the better defense of this province reported as follows, to wit,

It appears to your Committee that pursuant to the Plan concerted by the British Ministry for subjugating America, the King and Parliament of Great Britain have usurped a Power over the Persons and Properties of the People unlimited and uncontrolled; and disregarding their humble Petitions for Peace, Liberty and safety, have made divers Legislative Acts, denouncing War Famine and every Species of Calamity against the Continent in General…..

Resolved that the delegates for this Colony in the Continental Congress be empowered to concur with the delegates of the other Colonies in declaring Independency….

North Carolina’s state flag proudly displays this historic date.

Virginia followed suit. On May 15, 1776, the Virginia Convention passed a similar resolution. It read:

Resolved, unanimously, that the Delegates appointed to represent this Colony in General Congress be instructed to propose to that respectable body to declare the United Colonies free and independent States, absolved from all allegiance to, or dependence upon, the Crown or Parliament of Great Britain; and that they give the assent of this Colony to such declaration, and to whatever measures may be thought proper and necessary by the Congress for forming foreign alliances, and a Confederation of the Colonies, at such time and in the manner as to them shall seem best: Provided, That the power of forming Government for, and the regulations of the internal concerns of each Colony, be left to the respective Colonial Legislatures.

At that same Convention, Virginia decided to instruct its delegate in the Second Continental Congress to introduce a formal resolution to declare the colonies independent from Great Britain.  And so, on June 7, delegate Richard Henry Lee, introduced a resolution, termed the Lee Resolution or Resolution of Independence, which contained three parts: (1) to declare the united Colonies rightfully independent of the British Empire: (2) to establish a plan for establishing foreign relations with the Colonies; and (3) to establish a plan of a confederation to unite them officially.

The Lee Resolution simply read:

Resolved, that these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved;

That it is expedient forthwith to take the most effectual measures for forming foreign Alliances;

That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.

On June 11, 1776, the Second Continental Congress appointed three concurrent committees in response to the Lee Resolution – one to draft a declaration of independence, a second to draw up a plan of treaties “for forming foreign alliances,” and a third to “prepare and digest the form of a confederation.”  A Committee of Five was assembled to draft a document to explain the reasons for independence and it included John Adams of Massachusetts, Roger Sherman of Connecticut, Benjamin Franklin of Pennsylvania, Robert Livingston of New York, and Thomas Jefferson of Virginia. According to Adams, Jefferson proposed that he, Adams, do the writing of the document, but he declined. Rather, Adams said, it should be Jefferson.  Jefferson was known for his writing skills. As Adams told him: “Reason first: you are a Virginian and a Virginian ought to appear at the head of this business. Reason second: I am obnoxious, suspected and unpopular. You are very much otherwise. Reason third: You can write ten times better than I can.”

Thomas Jefferson - clear pic

Jefferson completed his draft of the declaration in just a few days. He argued in his opening two paragraphs that individuals have inalienable rights, that governments are instituted by consent of the people primarily to secure those rights, and that people have the right to overthrow their government when it abuses their fundamental natural rights over a long period of time. Then, in a direct attack on King George (in like fashion to the Grand Remonstrance of 1641 and the English Bill of Rights of 1689), Jefferson listed 27 grievances against King George III – 27 instances when the king violated the “the ancient rights and liberties” of the American colonists. Having thoroughly laid out his proof that the king was a “tyrant” who was “unfit to be the ruler of a people,” Jefferson continued on to condemn the British Parliament and the British people.  “These unfeeling brethren,” he wrote, had reelected members of Parliament who had conspired with the king to destroy the rights of the colonists. Jefferson ended his draft by stating, “we do assert and declare these colonies to be free and independent states….. ”

When Jefferson submitted his draft to the Congress on June 28, the delegates left the first two paragraphs essentially unchanged.  Instead, they concentrated on Jefferson’s list of grievances against King George and the British people. On July 2, 1776, the Second Continental Congress voted to declare the independence of the American colonies from English rule.  And on the July 4 – the Fourth of July – it approved the final edited version of the Declaration of Independence.

News of the colonies’ independence rang out in all the colonies.

While the 4th of July is the date that we celebrate the signing of the Declaration of Independence, the 56 signers didn’t actually affix their signatures until August 2.  John Hancock, President of the Continental Congress, was the first to sign his name and he did so in big letters. The story goes that after he signed his name, he gazed upon it and said: “There! His Majesty can now read my name without his spectacles!”

In explaining the Declaration of Independence, Jefferson wrote: “This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent, and to justify ourselves in the independent stand we are compelled to take. All its authority rests then on the harmonizing sentiments of the day, whether expressed in conversation, in letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc.”

For most of my life, I marveled at the Declaration. Its words were stirring, its declarations were brilliant, its indictment of King George was compelling, and its conclusion was heroic.  I assumed the ideas, the words, and the flair were all the brainchild of Jefferson.  But after reviewing the historical documents he had studied all his life, and taking into account the various resolutions and declarations written and adopted by the various colonies at the time, it’s quite clear that the Declaration is a composite of several documents.  First of all, Jefferson essentially copied the form of the English Bill of Rights (and to some degree the Grand Remonstrance before it) as he sat down to compose his draft. Thus, Jefferson’s indictment of King George III was not a radical departure from accepted English practices.  He was following English tradition, which in turn he adapted to American circumstances.  I’ve seen signs and tee shirts calling our Founding Fathers “Our Founding Liberals,” but realizing that Jefferson, in writing the Declaration, followed established English tradition and re-asserted the “ancient rights and liberties” that for over 500 years have defined Englishmen, our Founders were actually quite conservative.

Winston Churchill commented on this tradition: “We must never cease to proclaim in fearless tones the great principles of freedom and the rights of man which are the joint inheritance of the English-speaking world and which through Magna Carta, the Bill of Rights, the Habeas Corpus, trial by jury, and the English common law find their most famous expression in the American Declaration of Independence.”

In addition to historic English documents, Jefferson also borrowed language from George Mason’s Virginia Declaration of Resolves in drafting the Declaration. Mason asserted that “all men are by nature equally free and independent, and have certain inherent rights…namely the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and maintaining happiness and safety.” Jefferson altered – shortened – his language in his original draft to state: “We hold these truths to be sacred and undeniable: that all men are created equal; that they are endowed by their creator with inherent and inalienable rights; that among these are life, liberty, and the pursuit of happiness.”  In fact, Jefferson adopted his famous phrase from John Locke’s 1689 publication Two Treatises on Civil Government  –  “life, liberty, and the pursuit of happiness.” Everyone at the time understood that Jefferson equated “happiness” with property and safety.  By “equal,” Jefferson meant that all citizens or freeholders are, as Mason wrote, born “equally free and independent” under the law.  Note that the barons of England asserted their legal equality with the king in 1100 and 1215.  So, Jefferson was not stating anything new.  [ See Brion McClanahan, “Rethinking the Declaration of Independence”]

By its very name, the Declaration of Independence was a bold assertion of independence. Because it was asserted in defiance of the King, it was a highly treasonous document.  Its signers were traitors. The outcome of the war would decide their fate.  On October 19, 1781, British General Cornwallis surrendered his troops at Yorktown, Virginia and the British were defeated.  After six years of fighting, the Colonies had won their independence.  And once the Colonies had become independent, the Declaration essentially ceased to have any legal force. That which it sought to accomplish had been accomplished.

But that’s not where the Declaration of Independence’s story ends.

The Declaration may lack legal force but nonetheless, it remains the source of all legitimate political authority here in the United States and it memorializes the principles on which our country is founded.  Abraham Lincoln once referred to the principles embodied in the Declaration of Independence as “the electric cord that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world.”  And Calvin Coolidge remarked that “the doctrine of the Declaration of Independence predicated upon the glory of man and the corresponding duty to society that the rights of citizens ought to be protected with every power and resource of the state, and a government that does any less is false to the teachings of that great document — false to the name American.”

Declaration of Independence - signatures

 

A review of the most famous paragraphs of the Declaration remind us of the essential principles that make up our political foundation and ground our precious liberties.

The first paragraph reads:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The first paragraph characterizes the nature of the Declaration.  When Jefferson writes that it is time for the colonies “to dissolve the political bonds which have connected them with another” he is saying that the colonies intend to secede from Great Britain.  The Declaration, first and foremost, is a secessionist document.  What follows in the other paragraphs are the reasons and explanations for the decision to “dissolve their political bonds”; that is, to secede.

The phrase “the separate and equal station to which the Laws of Nature and Nature’s God entitle them” is a particularly significant one.  It means that our rights are not a gift from the State, but arise from our nature. This marks a paradigm shift from the system in England. English law was still dictated by the Divine Right of Kings. Even though charters, petitions, and a Bill of Rights put limitations on the Crown and to some extent, on government in general, they still acknowledged that the King and the State had power over the individual. Without such charters, petitions, and Bill of Rights, the King and government could treat the individual as it wanted, generously or oppressively.  Thomas Jefferson was making it clear that in the United States, rights are NOT a gift from the State, to be enjoyed at its benevolence, but rather that they arise from Nature and from God, separately and equally.  God and Nature go hand in hand. God who created the heavens and the Earth also created the laws of nature. For those who believe God to be the great author of Nature, then rights come from Him, as our Creator. For those who lack faith, they can rest assure that our Declaration equally recognizes that all individuals possess fundamental rights because they are natural rights – part of our very humanity from birth.  Even if you do not believe in a God Almighty, still you must respect the laws of nature.  In this way, Jefferson was laying out the concept of Individual Sovereignty in a way that its people could universally understand and agree, irrespective of the particulars of their individual and very diverse faiths.  Individual Sovereignty is the basis of our Rights in this country.

We may argue yet what are Nature’s Laws, but this much we can be certain:  All people must observe and ultimately obey it, just as the laws of nature apply equally to all human beings.  Since governments are merely fictional entities created by mankind and not by nature, rights supersede government. Saying that government is more important than the individual would be “unnatural.”

In the second paragraph of the Declaration of Independence reads:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.–That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.  Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

In this paragraph, Jefferson’s mighty pen goes into greater detail about the nature of the aforementioned natural rights. He tells us that our rights, which are endowed by our Creator (or Nature), are unalienable and although are numerous, the most obvious ones are “Life, Liberty and the pursuit of Happiness.”  “Unalienable” (which is the same as “inalienable”) means that the individual can never been divested of these rights. They cannot be taken away or denied.  They remain with the individual and government cannot take them away.  “Life,” of course, is clear enough.  “Liberty,” according to Jefferson, was the degree to which an individual can exercise his rights, his freedom.  The rights which come under this umbrella would include the rights asserted in the Magna Carta, for example, or in the English Bill of Rights, or in Virginia’s Declaration of Rights. (Remember the time period that the Declaration was written).  “Pursuit of Happiness” includes property, but encompasses much more.  “Pursuit of Happiness” means an individual should be able to freely exercise all his rights in order to live his life to its full potential.  That “full potential” includes the ownership of property and the fruits of one’s labor, mind, and personality (all that which makes a person a unique “individual”).  “Property” was too narrow a term for Jefferson.  Now, just as the individual has the rights to Life, Liberty, and Property, he also has the equal right to protect them.  This right of self-protection and self-preservation is also a natural right. Samuel Adams summed it best: “Among the natural rights of the colonists are these: First a right to life, secondly to liberty, and thirdly to property; together with the right to defend them in the best manner they can.”

“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed” is another important principle.  It is a critical and basic tenet of our form of government. First it states unequivocally that the primary role of government is “to secure these rights.” In other words, in the grand scheme of things, individual rights are supreme over the authority of the State (ie, government). The primary role of government, and the motivating force behind the formation of government, is to secure the inalienable rights, endowed by our Creator (Nature), of each individual.  This means that government is to be ideally limited to the role of a policeman, a judge, a prison warden, and a military force.  Furthermore, this provision explains that government has no powers of its own, but only “derives” its powers from individuals consenting to transfer power to it.  This is where the doctrine of Individual Sovereignty comes from. In a state of Nature, man has full sovereign power to govern himself – to provide for himself, to protect himself, to think and act as he wants.  He is responsible for himself and his conduct.  What is especially critical about this principle of “deriving powers from the consent of the governed” is that power delegated by the people is always “temporary” in nature.  The people can always re-assume their sovereign power – their right to govern themselves.

Having told us the proper function of government, Jefferson then tells us what gives cause to changing it: “That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

The first thing to note is that governments are always “temporary.”  Government exists at the whim of the people and have no right in and of itself to its own existence or longevity. Government is a “creation.”  It is not a natural institution. Because is arises by the “consent of the governed,” it is a product of compact.  Compacts have elements of contract law and agency law. The second thing to note is the Declaration acknowledges that individuals have the RIGHT to establish their government to effect THEIR happiness and their safety. When government ceases to serve those purposes, then individuals are well within their natural right to abolish that government and establish another.

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

How will a people know for sure when it is time to “abolish” their government?  Or how will they know when it is time to dissolve political bonds that tie them to another; that is, how will they know when it is time to secede from another political body?  The Declaration, in that last sentence, tells us: “When a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

And that line, as Jefferson will explain in the section that follows, sums up the position of the Colonies.  In that section, Jefferson sets out to make the case that the conduct of the King is a history of abuses and usurpations.  He lists 27 grievances against King George III – 27 instances where he violated the rights of the colonists – which he, Jefferson (and the Second Continental Congress, as evidenced by its adoption of the Declaration of Independence on July 4, 1776) believe evidences a design to reduce them under an absolute Despotism (tyranny).  In the last paragraph of the Declaration, Jefferson will finally make the case that because of this evil design, the Colonies have a right and a duty to dissolve their political bonds with the King.

The last paragraph reads:

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.

The Declaration of Independence ends with these powerful words: “For the support of this Declaration, we mutually pledge to each other our Lives, our Fortunes, and our Sacred Honor.”  We can never forget that the Declaration was a treasonous document, which, if the British had won the war, would have sealed the fate of each of its signers and earned them a date with a hangman’s noose.  But they believed in their cause. They believed in the words they wrote in that document and they believed in their case against the King.  And they were willing to risk it all.

Signer Benjamin Rush (of Pennsylvania) wrote: “Do you recollect the pensive and awful silence which pervaded the house when we were called up, one after another, to the table of the President of Congress to subscribe what was believed by many at that time to be our own death warrants?”

After signing his name in a large flowing style, it is rumored that John Hancock’s full response was this: “There! His Majesty can now read my name without his spectacles. And he can double the reward on my head!”  Benjamin Franklin, insisting that every single delegate sign the Declaration of Independence, said: “We must all hang together or surely we shall all hang separately.”  The large, burly Virginian, Benjamin Harrison, turned to the pipsqueak from Massachusetts, Elbridge Gerry, and joked: “I will have a great advantage over you, Mr. Gerry, when we are all hung for what we are now doing. From the size and weight of my body I shall die in a few minutes, but from the lightness of your body, you will dance in the air an hour or two before you are dead.”

One day after the Declaration was adopted by the delegates to the Second Continental Congress, John Adams wrote home to his wife Abagail: “I am well aware of the toil and blood and treasure, that it will cost us to maintain this Declaration, and support and defend these States. Yet through all the gloom I can see the rays of ravishing light and glory. I can see that the End is more than worth all the means. And that posterity will triumph in that day’s transaction.”

In a speech he gave on the 150th Anniversary of the Declaration of Independence (5 July 1926), Calvin Coolidge reflected:

Great ideas do not burst upon the world unannounced. They are reached by a gradual development over a length of time usually proportionate to their importance. This is especially true of the principles laid down in the Declaration of Independence. Three very definite propositions were set out in its preamble regarding the nature of mankind and therefore of government. These were the doctrine that all men are created equal, that they are endowed with certain inalienable rights, and that therefore the source of the just powers of government must be derived from the consent of the governed. If no one is to be accounted as born into a superior station, if there is to be no ruling class, and if all possess rights which can neither be bartered away nor taken from them by any earthly power, it follows as a matter of course that the practical authority of the Government has to rest on the consent of the governed. While these principles were not altogether new in political action, and were very far from new in political speculation, they had never been assembled before and declared in such a combination… In its main features the Declaration of Independence is a great spiritual document. It is a declaration not of material but of spiritual conceptions. Equality, liberty, popular sovereignty, the rights of man — these are not elements which we can see and touch. They are ideals. They have their source and their roots in the religious convictions. They belong to the unseen world. Unless the faith of the American people in these religious convictions is to endure, the principles of our Declaration will perish. We cannot continue to enjoy the result if we neglect and abandon the cause… If all men are created equal, that is final. If they are endowed with inalienable rights, that is final. If governments derive their just powers from the consent of the governed, that is final.”

By a stroke of remarkable coincidence, both Thomas Jefferson and John Adams died on the same day – the fiftieth anniversary of the adoption of the Declaration of Independence, July 4, 1826.  Jefferson preceded Adams in death by five hours.

When I think about Independence Day, I think of our magnificent story.  I think about the uncompromising determination of people to live free and the eternal vigilance it took to finally secure lasting boundaries on government. I think about the ways the British and then the colonists expressed their discontent with the King and the many ways they sought to exert their rights, and how the many efforts culminated in their most famous expression in the American Declaration of Independence. I think about how our Founding Fathers brilliantly turned government on its head – transforming a system of government based on the Divine Right of Kings to a system predicated on Individual Sovereignty.  I think of a continuum of a story that began in 1215 with a stand-off on the meadow at Runnymede in order to secure a promise from an arrogant and ambitious king that ended with a document signed by 56 delegates assembled together from 13 separate states on July 4.  The continent may have changed, but man’s yearning to be free did not.

Now, as we all know, a country is a physical location inhabited by a body politic. Principles are embraced by people and not by geography, and so liberty and independence is a spirit that must live in all of us. If it doesn’t, then we suffer oppression together. As Machiavelli once said: “It is just as difficult and dangerous to try to free a people that wants to remain servile as it is to enslave a people that wants to remain free.”  The Declaration embraces our revolutionary spirit, and God help us when our country has the spirit of an aging grandmother. The key is to always keep that revolutionary spirit.  And maybe that’s what Independence Day is all about…. to reflect on our history and to rekindle that spirit every year.

In conclusion, I would like to implore that on this Independence Day and on every Independence Day, that we remember the advice that was once given to us by James Madison: “The people of the U.S. owe their Independence and their liberty to the wisdom of descrying in the minute tax of 3 pence on tea, the magnitude of the evil comprised in the precedent. Let them exert the same wisdom, in watching against every evil lurking under plausible disguises, and growing up from small beginnings.”

 

References:

Brion McClanahan, “Rethinking the Declaration of Independence,” Abbeville Institute, July 4, 2016.  Referenced at:  http://www.abbevilleinstitute.org/blog/rethinking-the-declaration-of-independence/

Dr. Almon Leroy Way, Jr. (Professor of Political Science), “The American System of Government: The American Constitutional System – English Origins (1066-1558),” Cyberland University of North Carolina.

Referenced at:  http://www.proconservative.net/CUNAPolSci201PartFourB.shtml  [In-depth study of the Magna Carta]

The Petition of Right of 1628 – http://study.com/academy/lesson/petition-of-right-of-1628-definition-summary.html

The English Bill of Rights of 1689 –  http://avalon.law.yale.edu/17th_century/england.asp

The Grand Remonstrance – http://www.constitution.org/eng/conpur043.htm

The Declaration and Resolves – http://avalon.law.yale.edu/18th_century/resolves.asp

Patrick Henry’s Speech of March 23, 1775 – https://www.history.org/almanack/life/politics/giveme.cfm

Halifax Resolves – http://www.learnnc.org/lp/editions/nchist-revolution/4328

Preamble and Resolution of the Virginia Convention of May 15, 1776  – http://avalon.law.yale.edu/18th_century/const02.asp

The Lee Resolutions –  http://avalon.law.yale.edu/18th_century/lee.asp

“Boiling It Down, This Is What You’ve Said,” Mark America, October 15, 2011.  Referenced at:  http://markamerica.com/2011/10/15/boiling-it-down-this-is-what-youve-said/

Winston Churchill, “The Sinews of Peace”, address at Westminster College, Fulton, Missouri (March 5, 1946); in Robert Rhodes James, ed., Winston S. Churchill: His Complete Speeches, 1897–1963 (1974), vol. 7, p. 7288.

Calvin Coolidge, speech on the Occasion of the 150th Anniversary of the Declaration of Independence (July 5, 1926).

 

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Esteemed Ghosts From Our Past

LIBERTY - Sweet Land of Liberty

by Diane Rufino

If you are ever confused as to the order of things, the emphasis of individual rights with respect to government, the rights of States with respect to the federal government, and the states’ rights of nullification and disunion with respect to the government’s position, it helps to refresh oneself with the wisdom of the men who wrote our Founding documents and provided us with the bedrock on which our nation was established and grounded.

James Madison (the principle author of our Constitution) wrote to Thomas Jefferson (the author of our Declaration of Independence) that the Constitution was subordinate to the Principles and Rights enshrined in our Declaration. Madison noted, “On the distinctive principles of the Government … of the U. States, the best guides are to be found in … The Declaration of Independence, as the fundamental Act of Union of these States.” In other words, although the Articles of Confederation and its successor, the U.S. Constitution, were the contractual agreements binding the several states into one union – E Pluribus Unum – the innate Rights of Man identified in the Declaration are the overarching act of that union, and would never be negotiable by way of “collective agreement and compromise.”

Nor are those Rights negotiable today or tomorrow.

Similarly, the government as a political institution primarily tasked to protect the essential liberties of the people is the only grounds for allegiance by the people. Once that purpose becomes frustrated, abused, diluted, or convoluted, it is the right of the people to alter or abolish government.

Leftists and progressives refuse to acknowledge that the Rights of Man are non-negotiable, as we have seen in the debates over gun control. Leftists like Barack Obama do not believe that individuals have the inherent right to own guns. In other words, they don’t believe in the Second Amendment. Furthermore, if they don’t believe in the Second Amendment, then they fundamentally do not understand the Bill of Rights and the role of government. Rather, they subscribe to the errant notion of a “living breathing constitution” (“living breathing document”) – one which is subject to an at-will interpretation, and most conveniently, to the interpretation of the very government that the Constitution seeks to limit. A living, breathing constitution” is one that has no fixed meaning and therefore individual rights are subject to executive and legislative encroachment whenever it suits the government’s agenda. A “living breathing constitution” is one that can be judicially amendment by diktat, instead of its legally prescribed method of amendment in Article V. This enables them to undermine the Constitution’s fundamental protections of Human Rights and to transform government into whatever suits them.

Likewise, even though our Founding Fathers and indeed the drafters of our Declaration and Constitution acknowledged that the states have a right to check the power of the federal government and prevent it from encroaching on its sovereign powers and they have the right to voluntarily leave the union, and these rights supercede the Constitution, the federal government, through the voice of Presidents and the men (ie, puppets) they appoint to the Supreme Court, has attempted to deny that these rights do not exist. [seeTexas v. White (1868, decision written by Lincoln’s appointee as Chief Justice, his former cabinet member and right-hand man, Salmon Chase) and Cooper v. Aaron (1958)]

At North Carolina’s first Ratifying Convention in Hillsborough in July-August 1788, attorney James Iredell explained the status of the Constitution: “When Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In other words, if a law is passed by the US Congress that exceeds the authority granted at the time (1787-1788), that law is null and void and therefore is no law at all. The States must not enforce it. At that Hillsborough Convention, the NC delegates voted 184-84 not to adopt the Constitution. The anti-Federalist majority concurred with delegate William Gowdy of Guilford County, when he remarked: “Power belongs originally to the people, but if rulers be not well guarded, that power may be usurped from them.” It should be noted that the Hillsborough Convention is perhaps the most insightful convention regarding the original intent of the Constitution. The transcriber of the debates in that Convention was non-partisan.

Alexander Hamilton, who co-wrote The Federalist Papers, the series of essays assuring the States that the government created under the Constitution is one of very limited powers, wrote: “The Supreme Being gave existence to man …; and invested him with an inviolable right to personal liberty and personal safety … Hence, also, the origin of all civil government, justly established, must be a voluntary compact between the rulers and the ruled; and must be liable to- such limitations, as are necessary for the security of the absolute rights of the latter: for what original title can any man, or set of men, have to govern others, except their own consent? To usurp dominion over a people, in their own despite; or to grasp at a more extensive power than they are willing to entrust; is to violate that law of nature, which gives every man a right to his personal liberty; and can, therefore, confer no obligation to obedience.”

Although Presidents and Congressmen and justices (and all other government officials as well) swear a solemn oath to “to Support and Defend” our Constitution (with some taking the oath on the Koran, a document that demands allegiance to a system that must ignore the Constitution), most politicians on the Left and too many on the Right ignore that obligation, and have trampled on the notion established by the Constitution – The Rule of Law – with reckless abandon. The implications for Liberty are dire.

The debate between right and left, of progressives/liberals and conservatives, characterizes all fundamental historical debates regarding Liberty and tyranny and begs the core question: Who endows the Rights of Man? — God (as ordained in natural law) or government (as ordained by man)?

The Left’s position has been made plainly evident by Barack Hussein Obama, who has a history of deliberately and repeatedly omitting the words “endowed by their Creator” when citing in open constituent forums the Declaration’s reference to “Rights.” He intentionally compares himself to Abraham Lincoln for a reason. Lincoln himself ignored the intent and the letter of the Constitution perhaps more than any other president and enlarged government in a way that no Founder could have envisioned (although Hamilton had hoped, and maybe even Madison too for just a brief period in time).

“Obama and other contemporary leftist protagonists seek to substitute Liberty as ensured under the Rule of Law established by our Constitution, with the rule of men in their so-called ‘living breathing constitution.’ They do so because the former is predicated on the principle that Liberty is innately ‘endowed by our Creator,’ while the latter asserts that government is the sole arbiter and grantor of Liberty. Ignorance of the true and eternal source of the Rights of Man is fertile ground for the Left’s assertion that government endows such Rights. It is also perilous ground, soaked with the blood of generations of American Patriots defending Liberty at home and around the world. Indeed, as Jefferson wrote, ‘The tree of Liberty must be refreshed from time to time with the blood of patriots and tyrants.’” [Mark Alexander, “The Inalienable Rights of Man”]

[These comments are based, in large part, on an article by Mark Alexander – See Mark Alexander, “The Inalienable Rights of Man: A Brief Civics Lesson on Liberty,”The Patriot Post, February 18, 2015. Referenced at: http://patriotpost.us/alexander/33261 ]

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.]

NULLIFICATION: The Power to Right Constitutional Wrongs

NULLIFICATION - John Greenleaf Whittier (Abolitionist and Nullifier)    by Diane Rufino, July 9, 2015

THOMAS JEFFERSON wondered how the country would respond in the case its government passed a law that was clearly unconstitutional. As Secretary of State under our first president, George Washington, he already witnessed the wheels of government try to enlarge provisions in the Constitution to give the administration unchecked powers to tax and spend. Washington would establish the first National Bank. Jefferson knew the trend would continue. And it did.  Our second president, John Adams, signed the Alien & Sedition Acts into law, which were laws addressing the Quasi War (undeclared) with France at the time. The French Revolution just killed off the monarch and his family and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants and Americans were split in their support of the old French system or the new republic. Although the Alien Acts (3 of them) were offensive, it was the Sedition Act that was most glaringly so. The Sedition Act made it a crime (fines and jail sentences) should any person “write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States….”   The Constitutional red flags went up at once.  The immediate violations jumped out to men like Jefferson and Madison, and many others. While the Alien Acts violated the 10th Amendment and the Due Process clause of the 5th Amendment, the Sedition Act was a blatant violation of the 1st Amendment and its guarantee of Free Speech (most importantly, political speech!)  John Adams, a Federalist, saw nothing wrong with any of the laws.  Neither did his Federalist co-members of government or his Federalist judges.  Thomas Jefferson, the Vice President at the time (since he got the second highest votes in the election of 1796) wasn’t a Federalist. He was a Republican-Democrat (a party he founded).  [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!].  The Checks and Balances didn’t work. Political power was more important than the rights the government was created to protect!

And so, convictions quickly followed. Journalists, publishers, and even congressmen were fined and jailed. Not a single person targeted was a Federalist. The only ones targeted were Republicans.  The men who wrote our founding documents – Jefferson and Madison – began a series of correspondences to discuss what should be done to prevent such unconstitutional laws from being enforced on people who had a rightful expectation of exercising the liberties promised in the Declaration and in the Bill of Rights. (And of course they had to be very careful lest they be convicted under the law!)  Jefferson saw that there are 3 possible remedies when a government tries to enforce unconstitutional laws..  (1) Seek an opinion from the Judiciary;  (2) Secession; or  (3) Nullification.  Jefferson advised against the first two remedies.  He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the President were not required to abide by its ruling. Furthermore, the courts were all Federalists at the time and were part of the problem!.  Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but said it was far too extreme and every effort should be made to keep the union together in a workable fashion.  The third option, he said, was “the rightful remedy.”  Nullification, he said, was the remedy inherent in the states’ ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union.  Madison agreed.

Nullification is the doctrine which states that any law that is made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials – federal and state. When the government passes a law pursuant to its powers, it is supreme and binding. Every level of enforcement recognizes the law. States are obligated to uphold it and help enforce it.  An example are the federal immigration laws.  When the government passes a law that it has no authority to make – such as the Sedition Act, which offends the 1st Amendment which is a strict prohibition on the government with respect to individual speech (political speech) – then in terms of legality, the law is null and void.  For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws).  Since the law is null and void, no enforcement agency should force the law on the people. Government will never admit its law is unconstitutional or unenforceable and so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced.  The states are the rightful parties to stand up for the people against a tyrannical act of government. When the government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People (see the 10th and the 9th Amendments).  Every party must always jealously guard its sphere of government; it’s bundle of rights.  States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.

Well, immediately, Jefferson and Madison got out their pens and drafted the Kentucky Resolutions of 1798 and of 1799 (Jefferson, for the Kentucky state legislature) and the Virginia Resolutions of 1798 (Madison, for the Virginia state legislature).  Both states passed them, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states.  The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.

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 government hates the doctrine of Nullification and has used every opportunity to discredit it.  And it makes sense.  And doctrine that gives power to the States is offensive to the federal government. It makes them harder to control. We all know how angry the government gets when any state criticizes or attempts to frustrate the government’s laws, policies, and agenda.  Nullification, like secession, is a fundamental sovereign power reserved to each state. Since the states did not form the Union by unlimited submission to the common government they created, certain powers remain vested in them.  Despite what Lincoln and Obama may claim, the states did NOT create, or attempt to create, or even envision creating a “perpetual” Union by ratifying the Constitution.  Those words are merely wishful thinking by despots and revisionists.

NULLIFICATION - When Injustice Becomes Law, Nullification Becomes a Duty

The biggest tool the government has in its arsenal to shut down the discussion of Nullification is RACISM.  According to the government’s position – as evidenced in texts, government spokespersons, liberal pundits, college professors – Nullification is a racist doctrine that was used to help the states resist integration following Brown v. Board of Education (1953). For years, the southern states were demonized and punished by the northern states for the Civil War (War of Northern Aggression) and because the North was forcibly and quickly transforming their society, there were actions that would clearly be classified as “reactive” and “lashing out.” The North, as the victors of the war, had the benefit of writing history and telling the “official” story.  Nullification was used once in the south after the Brown decision. It was used by the governor and state legislature of Arkansas to prevent integration of the schools in the state (they amended the state constitution). They believed the decision was arbitrary and unconstitutional and believed the court had no power to enforce it. After all, approximately 1/5 of the entire membership of Congress signed a statement in 1956 pretty much declaring the same thing. They also feared what would happen given the level of hostility in the state. But Little Rock continued to move forward with its plan for desegregation. Eventually, in 1958, the Little Rock School Board filed suit asking for a court order allowing them to delay desegregation. They alleged that public hostility to desegregation and opposition created by the governor and the state legislature created an intolerable and chaotic situation. The relief the plaintiffs requested was for the African-American children to be returned to segregated schools and for the implementation of the desegregation plan to be postponed for two and a half years. The case went to the Supreme Court, which declared that no state had the right to ignore any of its decisions. Citing Chief Justice John Marshall in Marbury v. Madison, the Court emphasized that its decisions are binding on all the states and that to ignore them is to “wage war on the Constitution.” In other words, opponents of nullification assert that this case stands for the premise that states cannot nullify federal laws.

Racism invites passion. It questions motives, clouds judgment, obscures facts, and shuts down debate. Racism assumes that no party has any grievance or concern more important than that of the African-American. It assumes there is no part of history more important than slavery, abolition, and Jim Crow.  Racism never dies, according to the government.  Racism never dies, according to the irresponsible media.  Perhaps it is no coincidence that our current government is fanning the flames once again in history of racism and making sure we are once again defined as a racist nation. In this time when Nullification should be the topic everyone wants to re-address, the countering argument will always be: “Look, they’re trying to go back to the days of segregation.”

And so, I wanted to write this to emphasize the REAL story of Nullification..  and the REAL success of Nullification.  It wasn’t in light of the Alien & Sedition Acts. It wasn’t the publication of the Kentucky and Virginia Resolutions (because, let’s be honest, most of the other states were too timid to adopt similar resolutions and so the states, in the end, didn’t stand up to the government as Jefferson and Madison had hoped. There were probably 2 reasons for this: (1) The Acts were set to expire at the end of Adams’ term, which was only 2 years away so why get their panties in a wad; and  (2) the Union was extremely fragile at this point  – rebellions all over the place over the government’s authority to tax and collect – and the states didn’t want to exacerbate the situation.  The real success story of Nullification was in the rejection of the Constitution’s Fugitive Slave Laws.

Yes, the American flag, believe it or not, was the official flag of a slave nation for 77 years (1788 – 1865).  Slavery was protected in the United States by the Constitution for those years. Although slave importation had been abolished by the time the Constitution was ratified and the Union was created, the institution itself was still constitutional. Not only was it constitutional, but slaves, as property, were required (by the Constitution) to be returned to their owner. State agents, courts, and instrumentalities were required to enforce these federal laws.  But abolitionists in the North, like Rosa Parks herself sitting on a seat in a public bus, knew that the laws were revolting and fundamentally wrong.  Through civil acts of disobedience, like Ms. Parks refusing to give up her seat, those in states of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, either outright enacted laws which nullified Fugitive Slave Laws or they acted to frustrate or otherwise render useless any attempt to enforce them. Nullification was a very successful way for escaped slaves to finally realize freedom in the North. It’s pretty hard to claim Nullification is racist, like its opponents do, when it served such a public good (while the US Constitution protected something so evil).   The following video does an amazing job to educate people on the history of Nullification and to explain its power to right wrong.

https://www.facebook.com/tenthamendmentcenter/videos/10152871564545764/?fref=nf  (from the Tenth Amendment Center)