Property, Liberty, & Due Process
By KrisAnne Hall, JD
Do we realize how important and essential property ownership is to Liberty? Our founders knew how essential property ownership was to every inherent right.
We must understand the proper definition of Property to know its necessity to Liberty. Property isn’t just the place where you hang your hat. It isn’t just the car you drive or the gun you own. Yes, those are property, yet the true definition of that word is so much greater.
James Madison explains the definition of property in his dissertation of 1792.
“In its larger and juster meaning, it embraces every thing to which a man may attach a value and have a right; and which leaves to every one else the like advantage…a man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them.
In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights.”
Apply this understanding of “Property” to our lesson yesterday on “Due Process” and we can begin to fully understand what Madison is asserting:
“Where an excess of power prevails, property of no sort is duly respected. No man is safe in his opinions, his person, his faculties, or his possessions." James Madison, Property, 1792
When the government has the power to seize your property, they have the unlimited power to control you. Our founders knew that property ownership is essential to self-preservation. They knew that human nature dictates that if the government has the power to take your property without due process and a jury of your peers, then people will tend to submit to tyranny just to maintain their property and ensure their self-preservation. People will then be silenced and oppressed into ultimate submission for fear of losing their property. Freedom of speech...gone. Freedom of press...gone. Freedom of religion...gone. ALL Liberty is gone, when we cannot own our property free from government seizure. Due process is your protection when the government wants to seize your property…any of your property.
Now suppose that the seizure of that property is no longer limited by due process, but only limited by the government’s need for safety, security, or economic considerations. Government can determine that you no longer deserve the property essential to your self-preservation. What if government decides you no longer have the right the property of your life or liberty? What if the government begins to claim the property of your rights to be a privilege only maintained by their permission or consent?
Here is the million-dollar question… would it matter if that government is federal, State, or local?
What do the testimonies of History tell us about government today? Here is what Madison has to say,
"That is not a just government, nor is property secure under it, where the property which a man has in his personal safety and personal liberty, is violated by arbitrary seizures of one class of citizens for the service of the rest. A magistrate issuing his warrants to a press gang, would be in his proper functions in Turkey or Indostan, under appellations proverbial of the most compleat despotism." (Property, 1792)
What kind of society do you want to live in? The decision is yours, as the authority over surrendering your Rights is yours alone.
“Rightful liberty is unobstructed action according to our will, within the limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’; because law is often but the tyrant’s will, and always so when it violates the right of the individual.
Dispelling The Misguided Narrative on Original Intent
By KrisAnne Hall, JD
All too often we hear claims that appointing an “Original Intent” Judge will bring back Jim Crow and chattel slavery. A reasonable look at history (which is not to be expected from those dedicated to maintaining an activist based judiciary) should give rise to the opposite conclusion. A SCOTUS Justice who follows original intent should be viewed as a safeguard against a racist court. IF you will read to the end you will understand what I mean.
The infamous case of Scott v. US (The Dred Scott Decision) was NOT an example of Original Intent but of judicial activism. In Scott v. US the Supreme court through a series of historical errors, ignorance and racist reasoning wrongly declared that the Constitution never intended to make black men citizens and therefore intended for them to be property. They ignored the history of freed blacks in America, ignored the drafters’ own words, and inserted meaning into the Constitution’s text that could not be found in its plain reading.
The court’s judicial summary of the Dred Scott case is rich with historical revision and falsehoods and demonstrates the court’s venture outside of the text. The court claimed, “The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.” Of course, there are no clauses in the Constitution that identify the “African race,” this was read INTO the text by the racist court. The clauses in question reference persons who are “other than” freeperson and a “Person held to Service or Labour.” This could equally apply to the over 300,000 English, Irish, and Scottish slaves brought to the American colonies between 1618 to 1775. Yet, we do not hear the racist Dred Scott Court or any other person for that matter attempting to argue that an Irishman, Scotsman, or poor white English slave would not be a citizen if freed; that their children if born free would not be citizens.
Again, the racist court (not the Constitution) falsely claims; “A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.” This lie is then expanded by Justice Daniel in his concurrence when he says, “Now the following are truths which a knowledge of the history of the world, and particularly of that of our own country, compels us to know -- that the African negro race never have been acknowledged as belonging to the family of nations;”
This of course runs contrary to the fact that Great Britain treated freed black men as citizens. In 1653, one of the first legal cases brought before the British courts regarding the permanent institution of slavery, was brought by a black man named Anthony Johnson, who was a citizen, property-owner and slave-owner claiming his slaves were not indentured but permanent property. Prior to this case most slaves were indentured and could complete their term of service or purchase their own freedom, making them freemen and citizens. The scourge of chattel slavery spread rapidly after this decision and Afrocentric slavery grew to be the central character of this diabolical trade.
Yet there were many freed slaves who were treated as citizens in the American States during and after our war for independence. These men and women fought for our independence, they owned property, they created businesses and charitable organizations, they were considered valuable members of society. Look to the history of Crispus Attucks, George Middleton, Lemuel Hayes, or James Forten to name just a few. You have to wonder why those who want to celebrate Black Heritage refuse to acknowledge those freed black men and women who helped fight for and found this nation.
In the modern wave of racial division under the guise of defending equality, it is conveniently ignored that most of the State representatives in Convention opposed the continuance of the slavery. A small number of slave states, capitalizing on the founders’ fears of not building a strong Union to withstand future assaults by Great Britain, bullied the convention. They forced the Convention into compromising on the slavery issue – deciding to sunset slavery instead of end it immediately. Far from celebrating this compromise, many founders like James Madison regretted that they did not face the situation and end it then and there.
In 1787 George Mason, aka the Father of the Bill of Rights suggested that
“This infernal traffic originated in the avarice (greed) of British Merchants. The British Government constantly checked attempts of Virginia to put a stop to it.”
This notion was not an isolated view as evidenced by the Massachusetts judge in the Quock Walker Case of 1773 referring to the alleged slave laws,
“that they had been considered by some of the Provinces [to be] laws as actually existing among us, but nowhere do we find it expressly established. It was a usage¾a usage which took its origins from the practice of some of the European nations, and the regulations for the benefit of trade of the British government respecting its then colonies. But whatever usages formerly prevailed or slid in upon us by the example of others on the subject, they can no longer exist.”
The racist court in Dred Scott could have easily referred to the Quock Walker judge’s more accurate assessment:
“And these sentiments led the framers of our constitution of government13 ¾ by which the people of this commonwealth [Mass.] have solemnly bound themselves to each other ¾ to declare ¾ that all men are born free and equal, and that every subject [person] is entitled to liberty, and to have it guarded by the laws as well as his life and property. In short, without resorting to implication in constructing [analyzing] the constitution, slavery is in my judgment as effectively abolished as it can be by the granting of rights and privileges wholly incompatible and repugnant to its existence. The court are therefore fully of the opinion that perpetual servitude can no longer be tolerated in our government, and that liberty can only be forfeited by some criminal conduct or relinquished by personal consent or contract.
Even Thomas Jefferson suggests that it was not the initial choice of the colonies to participate in slavery but a mandate by their then government of Great Britain:
“The abolition of domestic slavery is the great object of desire in those colonies where it was unhappily introduced in their infant state…Yet our repeated attempts to effect this by prohibitions, and by imposing duties which might amount to prohibition, have been hitherto defeated by his majesty…” T. Jefferson, July 1774
Once our independence was in motion, the mechanisms to end slavery were in motion. Roger Sherman, a delegate from Connecticut remarked in the federal convention on 22 August 1787, “that the abolition of slavery seemed to be going on in the U.S. & that the good sense of the several States would probably by degrees compleat (sic) it.” Oliver Elsworth, also a representative to Connecticut very confidently stated in 1787, “Slavery in time will not be a speck on our country. Provision is already made in Connecticut for abolishing it. And the abolition has already taken place in Massachusetts.”
The notes taken during the ratification of the Constitution prove that the majority of the drafters of the Constitution were vehemently opposed to slavery and sought a way to end the practice immediately. Justice James Iredell stated in the debates held in North Carolina, “It was the wish of a great majority of the Convention to put an end [to slavery] immediately…”
The unfortunate truth was that slavery, having been forced on the colonies from infancy had created a cultural apathy in some sectors and economic dependency in others. The drafters concluded (rightly or wrongly?) that in order to create a Union which could end the institution of slavery, there had to be an agreement to gradually wean society from this despicable addiction. In 1788, James Madison explains this serious dilemma:
“Great as the evil [slavery] is, a dismemberment of the Union would be worse. If those States should be disunited from the other States for not indulging them in the temporary continuance of this traffic, they might solicit and obtain aid from foreign powers.”
Madison continued to make the point that if these States were to gain this foreign aid, the institution of slavery may never be abandoned by those States and there would be nothing to stop those States from bringing discord or even war to their neighboring States over the dissolution of slavery. In hindsight some would say that such an outcome was inevitable in either case.
The documented Original Intent of the drafters is a complete contradiction to the opinions and precedents of the Dred Scott Court. This supreme Court claimed the Constitution declared black men property. James Madison, the father of the Constitution, states the exact opposite:
"[The Convention] thought it wrong to admit in the Constitution the idea that there could be property in men."
This Dred Scott Court claims that black men were never to be considered free citizens by the drafters of the Constitution. Future supreme Court Chief Justice John Jay, co-author of the Federalist Papers, founder of the African Free School contradicts the court’s assertion:
"It is much to be wished that slavery may be abolished. The honour of the States, as well as justice and humanity, in my opinion, loudly call upon them to emancipate these unhappy people. To contend for our own liberty, and to deny that blessing to others, involves an inconsistency not to be excused."
In 1810, James Madison even made this demand of our Congress in the future, based upon the Original Intent of the drafters of the Constitution:
“American citizens are instrumental in carrying on a traffic in enslaved Africans, equally in violation of the laws of humanity and in defiance of those of their own country. The same just and benevolent motives which produced interdiction in force against this criminal conduct will doubtless be felt by Congress in devising further means of suppressing the evil.”
When Congress passed the legislation to end the traffic of slavery Thomas Jefferson made this statement:
“I congratulate you, fellow-citizens, on the approach of the period at which you may interpose your authority constitutionally, to withdraw the citizens of the United States from all further participation in those violation of human rights which have been so long continued on the unoffending inhabitants of Africa, and which the morality, the reputation, and the best interests of our country have long been eager to proscribe.”
Remaining bound to errant precedent established by supreme Court justices simply because legal tradition says so, truly enslaves all Americans to the whims and motives of nine individuals in a quasi-oligarchical rule.
A return to Original Intent is a return to the principles that make America the desire of so many of those in foreign countries for hundreds of years. A return to Original Intent declares that Liberty is the right of all human beings and their government is established to protect those rights, not regulate them. A return to Original Intent is an undeniable application of Liberty and Justice for all. A return to Original Intent says that we are able to be free individuals by choice, not permanent slaves by authoritarian stranglehold of government.
“We hold these truths to be self-evident that all men are Created equal and endowed by their Creator with certain inalienable rights…”
When they penned and signed their pledge to these words, they meant it just as it was written. In fact, Jefferson’s original draft was even more pointed in its anti-slave stance. They could have very well written “all free-men or white men are Created equal” but they did not. They were declaring that this Creator they reference made ALL MEN (gender neutral application) in His image and that through this creation all are inherently free. Even as some of these men struggled to extricate themselves from the dominant feature of their time (Jefferson most notably), they knew that the seed of liberty the sowed in their day would grow and that future generations would be able to fully realize the drafters’ dream of Liberty and Justice FOR ALL. This is what Original Intent means. This is why Original Intent should be viewed as a safeguard for all people.
State Power v Federal Regulatory Power
By KrisAnne Hall, JD
If the book Demise of the American Republic were ever written, the history of the Supreme Court would likely occupy a bulk of its pages. Two opinions from the Supreme Court of the United States (SCOTUS) serve to illustrate this point. These opinions may appear rather innocuous on the surface; however, they are anything but harmless.
The great task of SCOTUS, according to James Madison, (aka Father of the Constitution) was for it to be an “IMPENETRABLE BULWARK” in protecting State rights and the Liberties of the people. Let me be blunt – It Has Failed. In two SCOTUS decisions, Pliva v. Mensing and American Electric Power v. Connecticut the Supreme Court has chosen to place Federal Regulatory Law above these Rights & Liberties.
Some may ask; “doesn’t the Supremacy Clause establish federal law above State law to be the proper order of things” No, it actually does not. Article 6 clause 2 of the Constitution, known as the Supremacy Clause reads as follows:
This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.
It is true that the drafters of the Constitution knew that if the laws of the United States were not held to be supreme over the laws of the States, they, according to Alexander Hamilton, “would otherwise be a mere treaty, dependent on the good faith of the parties, and not a government, which is only another word for POLITICAL POWER AND SUPREMACY.” (Fed.#33). Without a degree of supremacy, compliance to federal law would be completely voluntary and wholly unenforceable. However, there is a distinct limit to the authority of federal laws. Alexander Hamilton goes on to say,
“But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution;…” (Fed.#33).
What Hamilton was saying is that the Supremacy Clause only makes Federal Law supreme when that Federal law is consistent with and established pursuant to the Constitution. When it is not thusly established, it is an “act of usurpation.”
You see, federal law is not the "supreme law of the land," that position belongs to the Constitution. Anything (e.g. law-regulation-executive order-supreme Court opinion) that is not made "in pursuance to the Constitution" is null and void. Hamilton makes this abundantly clear in Fed. #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."
And Hamilton was not alone. James Wilson, delegate for the State of Pennsylvania, argued that all congressional power was limited and defined by the Constitution and any transgression of that Supreme Law rendered the acts of Congress void and of no force.
“…the power of the Constitution predominates.
Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law."
By the consent of 3/4 of the States, this principle became law in Article 6 clause 2 of the Constitution.
Unfortunately, usurpation of rights, abuse of authority, and violation of the Supreme Law of the land is exactly what has happened at the hands of the SCOTUS. It has, through its opinions, supported the unconstitutional authority of a body, other than Congress, to establish law outside the authority of the Constitution and then given that body supremacy over State reserved powers.
There is no Constitutional basis for the federal EPA or FDA to impose authority over the States. First, the power exercised by these agencies are powers not expressly delegated to the federal government, they are powers reserved to the States. Secondly, these are Executive branch agencies (see EO 13575 sec. 3); law making is reserved through the Constitution to the Legislative branch.
When the SCOTUS chooses to assert that regulations, which are established by an unconstitutional agency, are supreme over the States via the Supremacy Clause, as they did in Pliva v. Mensing and American Electric Power v. Connecticut, they are usurping the States’ reserved power.
Furthermore, James Madison stated in the Federalist Papers 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." (emphasis added)
History and facts dictate that we must consider the intent of the Founders when properly interpreting the Constitution. That is why Hamilton specifically said, "...every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void." The term "tenor of the commission" is a direct reference to the intent of the drafters.
Madison establishing that the federal government has no Constitutional authority to establish a law that deals with the ordinary course of affairs, concerning the lives, liberties, and properties of the people. That is a duty reserved to the State. Hamilton is saying, since Madison is explaining that is our intent, the federal government is therefore bound by it.
However, the executive branch through these Federal Agencies, have imposed regulation after regulation that create restrictions and levy fines on the people of the States that have nothing to do with war, peace, negotiations, and foreign commerce.
Our founders established separation of powers because they had seen a history of over 700 years of tyranny usurping the rights of the people. They knew what it looked like, and they knew what it would take to prevent it and defeat it. They established the Legislative branch to be separate from the Executive branch, so that one man could not impose laws upon a people based upon his will; and they established a Judicial branch to check them both.
These unconstitutional regulations along with the subsequent SCOTUS opinions are acts of tyranny with which our founders were intimately acquainted.
Our founders knew that without the proper checks and balances, the executive branch would have the power to destroy liberty. They also anticipated the attempt to circumvent these checks. James Madison stated in his Speech to Congress - June 8, 1789:
In other instances [the Constitutions lays] down dogmatic maxims with respect to the construction of the government; declaring, that the legislative, executive, and judicial branches shall be kept separate and distinct: Perhaps the best way of securing this in practice is to provide such checks, as will prevent the encroachment of the one upon the other…independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights. (explanation and emphasis added)
This is why judicial appointments are so important. It is not enough for our Senators to appiont "conservative" justices, we must demand appointment of justices dedicated to the principles and proper application of the Constitution.
But what do we do when the “independent tribunals of justice” have failed in their duties as guardians of the rights of people? The fantastic thing about our founders was they understood human nature. Alexander Hamilton stated that “experience is the oracle of truth; and where its responses are unequivocal; they ought to be conclusive and sacred.” Our founders learned from their own history that people would become inattentive to their rights; that tyranny would attempt to reassert itself as it had time and time again. Knowing this, James Madison continued with his speech in 1789 explaining there is a more powerful check of federal power than the courts:
Beside this security there is a great probability that such a declaration in the federal system would be enforced; because the state legislatures will jealously and closely watch the operation of this government, and be able to resist with more effect every assumption of power than any other power on earth can do; and the greatest opponents to a federal government admit the state legislatures to be sure guardians of the people’s liberty. (emphasis added)
According to James Madison, the primary job of our State Legislatures was to be guardians of the people’s liberty against federal encroachment.
This is now our greatest hope to save the sovereignty of our States. Our Legislators must understand that this is the time when they must stand against these unconstitutional agencies and their unauthorized intrusion on the rights of States, which is to say the rights of the people. We must again establish ourselves as the engaged citizen government that was demanded by our founders in order to keep this Constitutional Republic. We must reassert ourselves as the leaders of our nation and remind the legislators that they are representatives of the people, working for the people, not celebrities vying for camera time and re-election.
Supreme Court Betting on College Sports
By KrisAnne Hall, JD
In a baby step back toward protecting reserved State Powers, the Supreme Court on Monday overturned a twenty-five year old federal law called The Professional and Amateur Sports Protection Act (PASPA). The Act was originally signed into law in 1992 to target organized markets for sports gambling. This federal law was not a flat ban on sports-gambling schemes, but only a law that prohibited States from permitting sports gambling by State law.
In an opinion written by Justice Alito, the majority of the court decided this law was a violation of the Tenth Amendment to the Constitution. Alito says, “The legislative powers granted to Congress are sizeable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.” The Tenth Amendment limitation is referred to by the court as the “anti-commandeering doctrine.”
The people of New Jersey want to legalize sports gambling but PASPA makes it illegal for States to legalize any “sports gambling schemes.” The people of New Jersey argued that this federal law infringed upon the State’s sovereign authority. The State relied upon two cases; New York v. US (1992) and Printz v. US (1997) that struck down federal laws that imposed improper regulatory powers upon the States. In Printz v. US the supreme Court used Federalist Papers 39 as support for their opinion in which James Madison explained:
“[T]he local or municipal authorities form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority, than the general authority is subject to them, within its own sphere. In this relation, then, the proposed government cannot be deemed a NATIONAL one; since its jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.”
In these cases, the supreme Court recognized that there are separate and independent jurisdictions that exist within the two sovereign spheres of government; the State and the Federal. When the power has not been delegated to the Federal that power remains in the State and outside of the Federal’s power to impose laws upon the State. Following this same standard established by the Tenth Amendment in the Constitution, Justice Alito and the majority court recognized the State’s authority to regulate gambling lies within the sovereign realm of the state’s authority and that Congress directing state legislatures to prohibit sports gambling is not an enumerated power delegated by the Constitution to the federal government.
“The anti-commandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”
It is refreshing to see the supreme Court return to this fundamental and essential truth; that the States are independent sovereigns and the federal government can only lawfully exercise powers that have been properly delegated. This Court also recognized the constitutional principle of the sovereignty of the States in NFIB v. Sebelius when Chief Justice Roberts, writing the majority opinion said;
“In the typical case we look to the States to defend their prerogative by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace federal policy as their own. The States are separate and independent sovereigns. Sometimes they have to act like it.”
Although this is just a small step, Alito and the majority court may be steering the federal government back in the proper direction; one not only required by the Constitution but also by those who wrote it. Alexander Hamilton makes this very clear 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.”
Hamilton is explaining in this text that in order to for a federal law to be valid, it must not only comply with the text of the Constitution, it must also be consistent with the “tenor of the commission under which it is exercised.” The Constitution requires adherence to the intent of the drafters as well as the words of the document. In a display of adherence to this intent, Justice Alito quotes the Declaration of Independence and Madison’s Federalist #39 in his majority opinion to once again remind the people and their Congress that the States are sovereign.
“When the original States declared their independence, they claimed the powers inherent in sovereignty- in the words of the Declaration of Independence, the authority ‘to do all…Acts and Things which Independent States may of right do’…the States…retained ‘a residuary and inviolable sovereignty.’”
However, one point Alito seems to miss in his opinion is that the power to regulate gambling is not a power that is delegated AT ALL to the federal government. He claims that “[c]ongress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” In this broad assertion of power, Alito actually sides with Justice Ginsberg and the dissent; that the federal government is realistically unlimited in its exercise of power. Justice Thomas, in his concurring opinion, is the only Justice who denies this assertion of unlimited authority:
“Unlike the dissent I do “doubt” that Congress can prohibit sports gambling that does not cross state lines.”
Indeed, you may search the entire text, you may scour the writings of the drafters of this Constitution, but you will never find an authority delegated to the federal government to regulate such activity. The assumed authority to do so comes from an interpretation of the Commerce Clause, in which the federal government stretches the meaning and application way beyond the “tenor of the commission” of the Constitution. As Madison explained in 1792, during the Cod Fishery debate, the clauses within the Constitution are not powers delegated at all; they are merely explanations of “the purpose of the powers which are delegated.” These clauses were never intended to be boilerplate blank checks written to Congress to create whatever law they could somehow justify. Madison issues a very stern warning against using these clauses for that purpose.
“…for if the clause in question really authorizes Congress to do whatever they think fit… it would subvert the very foundations, and transmute the very nature of the limited government established by the people of America.”
What Alito suggests is that the powers of the federal government are not limited by the Constitution, but by mere will enforced by interpretation of clauses. Alito seems to only differ from the dissent in policy but not in principle. However, as Alito does assert in his opinion, the Tenth Amendment is very clear; “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.” However, Alito’s final statements seem to assert that there are no reserved powers that rest within the States. What he is really saying is that ALL POWER exists within the federal government and anything the feds choose not to use, is then “available” to be exercised by the States. Alito’s claim then becomes the very manifestation of Madison’s warning, transmuting the limited nature of the federal government to one that is limited only by its own interpretation and desire for power. Alito is not supporting a Constitutional Republic, but an unlimited federal kingdom that grants permissions to its vassal colonies – the states.
There should be no doubt as to the limited authority of the federal government. There should be no doubt as to the reserved powers and sovereignty of the States. Both are well documented within the Constitution and in the drafters’ explanations of the Constitution. However, this fundamental and essential principle necessary for the existence of our Constitutional Republic still eludes our justices who claim the federal government can regulate the lives of the citizens in whatever manner they choose, as long as they can create an articulate justification and manipulate the Constitution, irrespective of the tenor in which it was written. It is a step in the right direction to see the Court once again asserting the Sovereignty of the States. However, what is the real difference between the majority and minority opinions when they both support an unlimited congressional authority over the people and left over power for the States?
CNN & Nullification Misinformation
by KrisAnne Hall, JD
During a September 2013 campaign speech, Interim US Attorney General Matthew Whitaker made some very bold comments that have the federal supremacists in defensive battle mode. Whitaker said,
"Now we need to remember that the states set up the federal government and not vice versa. And so the question is, do we have the political courage in the state of Iowa or some other state to nullify Obamacare and pay the consequences for that?"
"The federal government's done a very good job about tying goodies to our compliance with federal programs, whether it's the Department of Education, whether it's Obamacare with its generous Medicare and Medicaid dollars and the like," he added. "But do I believe in nullification? I think our founding fathers believed in nullification. There's no doubt about that."
A federal supremacist at University of Texas, law professor and CNN contributor Stephen Vladeck, according to an article on CNN by Andrew Kaczynski, calls Whitaker’s statements "irreconcilable not only with the structure of the Constitution.” Interestingly this federal supremacist attitude was not supported by the chief Justice of the United States Supreme Court even when he declared the mandate to be a tax. John Roberts, writing for the majority in the first Affordable Care Act opinion, NFIB v Sebelius, 567 U.S. 519 (2012) confirms Whitaker’s understanding of the State’s authority to nullify Obamacare. As a matter of fact, Roberts gives the States a directive to nullify Obamacare if they did not want to “embrace” these policies as their own, citing Massachusetts v. Mellon, 262 U. S. 447, 482 (1923), as his agreeing precedent.
“In the typical case we look to the States to defend their prerogatives by adopting “the simple expedient of not yielding” to federal blandishments when they do not want to embrace the federal policies as their own. Massachusetts v. Mellon, 262 U. S. 447, 482 (1923) . The States are separate and independent sovereigns. Sometimes they have to act like it.”
This is the same reasoning SCOTUS used in 1997 in Mack, Printz v US when it decided against the federal government and certain Brady Bill provisions. The court reasoned that………………….
Federal supremacist Stephen Vladeck continues his criticism of the principle of Nullification by saying that Nullification is contrary to the text of the Constitution itself, citing the Supremacy Clause of Article VI, which he claims “not only makes federal law supreme, but expressly binds state courts to apply it.” Since Mr. Vladeck is a professor one would have to assume that he can read. It then leads this author to the inevitable conclusion that Vladeck must be intentionally deceiving his readers by not accurately quoting the text of Article VI clause 2. To clear up the confusion laid before us by Vladeck, and in full disclosure let’s just look at this clause in its entirety:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
A simple, elementary reading of this clause indicates Vladeck’s deception. This clause does not make federal law supreme. Quite to the contrary, it makes the Constitution supreme and places all other laws beneath it. According to the Supremacy Clause not all federal laws are supreme, only those laws that are made “in pursuance to the Constitution.” When federal laws are not made in pursuance to the Constitution, those laws are not supreme, and as this language of the Constitution asserts, the Judges in every State are NOT bound by them. Time and again, the drafters of this clause make this principle abundantly clear:
“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.” Alexander Hamilton, Federalist 78
“…the power of the Constitution predominates. Anything, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law.” James Wilson Pennsylvania Ratifying Convention 1787
Andrew Kaczynski, comments in apparent shock that Whitaker would refer to the courts as the “inferior branch of the federal government.” Apparently he has never taken the time to read how the courts were formed and the purpose and limit to judicial power as described by the people who created this branch of government. One statement made by Alexander Hamilton should help us to see that once again Whitaker is right, and the federal supremacists are wrong:
“This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power…” Federalist #78
Hamilton’s comments were one of concern that the judiciary being the weakest branch would need to be supported by the people to ensure that it was not abused by the other two branches. Whitaker’s statement about the judiciary being the inferior branch of the federal government should not be shocking to the American people, it should be, as Hamilton identified it, “incontestable.”
These federal supremacists, when attacking the Constitution’s foundational principles will always revert to a common fallacy of logic to appeal to the emotion of the people by name-calling and labeling. In this particular context, the popular fallacy implied by both Vladeck and Kaczynski is that people who support Nullification are racists and that the principle of Nullification was a racist tool used in the Civil War to protect the institution of slavery and in the Civil Rights movement to oppress blacks. Calhoun’s defense of nullification and Mississippi’s resistance to Brown is selectively highlighted to drive home their point. Yet they also have to selectively OMIT the use of nullification by abolitionist States to defy federal laws of the fugitive slave act and to ignore the Supreme Court’s opinion in Dred Scott that men were property. Without Nullification by these abolitionist States, the federal government, with the full support of the Supreme Court would have protected the institution of slavery and defied the principles of the Declaration of Independence and the Constitution that “all men are created equal and endowed by their Creator with certain unalienable Rights…” We are supposed to accept that the misuse of a principle makes the principle itself invalid (Sounds a great deal like the anti gun argument.) They also selectively omit the use of nullification to defy federal marijuana laws, and federal laws banning gay marriage. AND they don’t seem to want to talk about the MISUSE of nullification by California to defy the Uniform Code of Immigration and Naturalization because THAT misuse of nullification is SUPPORTED by these leftists who want anti-constitutional sanctuary cities dotting the land.
CNN’s legal analyst, Michael Zeldin attempts to deny these facts by claiming that the principle of Nullification is “purely political.” That is an interesting comment considering that every claim this article levels against Nullification is purely political and not legal. The drafters of the Constitution asserted time and time again that unconstitutional federal laws were “null and void,” and that they were “no law at all.” Who can claim, with any semblance of legal reasoning that a law that is null and void, that carries the weight of no law at all, should bind anyone, anywhere? Therefore the justification for anti-nullifiers is purely political. The purely political nature of these supremacist, anti-nullifiers is supported by the reality of their hypocrisy mentioned above. Whitaker makes the statement that States can and should nullify “Obamacare” and these supremacists lose their ability to reason. However, when States assert that they do not have to follow the federal Uniform Rules of Naturalization, or do not have to recognize federal marijuana laws, these political activists disguising themselves as “legal analysts” or “professors of the Constitution” all fall silent. Yes, federal supremacy has to be purely political because it has no factual or historical foundation in America or the Constitution.
Finally, CNN’s federal supremacists, as do most federal supremacists, assert a final defense to their indefensible argument of complete federal supremacy by raising aloft the standard of judicial idolatry, namely a distortion of Supreme Court Opinion in Marbury v. Madison, 5 US 137 (1803). Sadly, we have are so far removed from this opinion written in 1803, by Chief Justice John Marshall, I wonder if any modern law professor, pundit, or analyst has actually read the case. I believe the overwhelming majority have simply read and accepted the summary and definition provided to them by some modern law book. Once again, actually reading the case affirms the supremacy of the Constitution and the invalidity of laws made by Congress that are inconsistent with that document. Here is a small sampling:
“The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.
If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable.
Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void.
This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.
If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on.” Marbury v. Madison, 5 US 137, 177 (1803) (emphasis mine).
Marbury v. Madison does not deny nullification. It does not deny the State’s authority to be an essential check and balance to unconstitutional federal power. Considering both the Kentucky Resolution of 1799 and the Virginia Resolution of 1800, the fact that this court is actually glaringly silent on this issue, says to the people that nullification was not contradicted by this court. Marbury did, however, incontestably establish the Constitution as supreme over federal laws. It did not establish the court’s power to be the ultimate arbiters of the Constitution. It did reaffirm the court’s duty, as established by the creators of the Constitution, to be a check on the legislative branch using the Constitution as the standard.
When supremacists like Vladeck, Zeldin, and their ideological kinfolk in the law schools & think tanks say “all federal laws are supreme,” when they declare the federal government through their courts to be “the ultimate arbiters” of the Constitution, they are not only operating contrary to the language of the Constitution itself, but contrary to Marbury v Madison which they have reshaped into their own image. They are asserting a gross and absurd reality that denies not only the words of the Constitution, the tenor in which it was written, but they are also declaring the people of America are not free, but mere subjects to an oligarchy of their choosing; today the legislature, tomorrow the judiciary. Who rules, to them, is merely dependent upon which political tribe happens to hold power. Their assertion of arbitrary power is so radical and so contrary to the principles of Liberty, they have to resort to label-lynching and fallacies of logic. They have no basis in fact or history, so they want to scare and intimidate every American from learning the truth.
This political bullying will only stop when the people learn truth and those who know truth are no longer afraid to speak it out loud, just like Mr. Whitaker. I applaud Matthew Whitaker for his statements. I just hope he has the courage to live up to his convictions and not be bullied by the tired accusation of being racist simply because political loyalist are afraid his action may support the big orange boogeyman that they all love to hate.
To learn more about Nullification and the duty of the States get KrisAnne's book Sovereign Duty or enroll at www.LibertyFirstUniversity.com