The state governments intervening against federal encroachment on behalf of its residents is a constitutional solution because the Constitution is a contract (technically a compact) among the States which created the federal government. The States are the parties to the Constitutional Contract and the federal government is the PRODUCT of that contract. Inherent in EVERY contract is the right of the parties to that contract to control the product of the contract. The States are the representatives of the people in this contract and have a DUTY to keep the federal government within its constitutional boundaries and thus protecting the rights of the people. It is inherent in the very nature of the Constituion. This intervention is that act of the PEOPLE through their States to keep the federal government within in its “limited and defined” boundaries and should be as regularly carried out as an oil change in your car. Madison states this principle again in Federalist #49:
“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 government; but also whenever any one of the departments may commit encroachments on the chartered authorities of the others.”
In Federalist #46 he further states:
"should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter."
The Supreme Court of the United States in Printz v. United States has also affirmed these clear constitutional principles in its articulation of the anti-commandeering doctrine stating, "The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program."
Or as Chief Justice John Roberts writes in NFIB v. Sebelius (2012), "...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.”
Based upon these principles, there are presently numerous bills moving through the state legislatures to protect Americans’ natural right to keep and bear arms. These bills need your support. If you live in these states and you believe you can support the bill, contact your representatives, and tell the bill in your state. Go to the link below to find your representatives. Also look for the committee members that are hearing the bill and contact them.
Some things to consider:
Click the Bill to see its status:
North Carolina H189
South Carolina H3042
West Virginia SB353
Most of these bills mirror one another to a great extent and follow the Second Amendment Preservation Act (SAPA) model which draws largely upon the model legislation created by the Tenth Amendment Center. Many counties are passing SAPA resolutions as well. Here is a model from the Missouri counties:
___________ County, Missouri,
Second Amendment Preservation Resolution
WHEREAS, The 2nd Amendment to the Constitution for the United States reads as follows, A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed; and
WHEREAS, Article I, Section 23 of the Constitution of Missouri reads as follows, That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be obligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity; and
WHEREAS, The right to be free from the commandeering hand of the federal government has been most notably recognized by the Supreme Court of the United States in Printz v. United States when the Court held: The Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program; and
WHEREAS, The anti-commandeering principles recognized by the Supreme Court of the United States in Printz v. United States are predicated upon the advice of James Madison, who in Federalist #46 advised “a refusal to cooperate with officers of the Union” in response to either unconstitutional federal measures or constitutional but unpopular federal measures, and
WHEREAS, In Section 21.750 RSMo, “The general assembly hereby occupies and preempts the entire field of legislation touching in any way firearms, components, ammunition and supplies to the complete exclusion of any order, ordinance or regulation by any political subdivision of this state.” And, thereby leaves the statutory defense of the right to keep and bear arms largely in the hands of the general assembly.
NOW, THEREFORE BE IT RESOLVED that the County of __________, Missouri hereby reaffirms its full commitment to the 2nd Amendment to the Constitution for the United States and Article I, Section 23 of the Constitution of Missouri.
BE IT FURTHER RESOLVED that the County of ______ considers all federal acts, laws, orders, rules or regulations restricting firearms, firearms accessories, and ammunition to be violations of the 2nd Amendment to the Constitution for the United States; and
BE IT FURTHER RESOLVED that pursuant to and in furtherance of the principles of federalism enshrined in the Constitution for the United States, the federal government may not commandeer officers, agents, or employees of the County of _______, or any political subdivision of the state of Missouri, to participate in the enforcement or implementation of any federal act or regulatory program; and
BE IT FURTHER RESOLVED that is the intent of this Resolution to support legislation in the Missouri General Assembly that would protect the employees of this county, including law enforcement officers, from orders or other pressure to participate in actions that would violate their oath of office and the individual rights affirmed under the 2nd Amendment to the Constitution for the United States and Article I, Section 23 of the Constitution of Missouri; and
BE IT FURTHER RESOLVED that the Commissioners and Sheriff of the County of ______ express full support for the passage of House Bill 85, as passed by the House of Representatives on February 4, 2021, or Senate Bill 39, as passed by the Senate General Laws Committee on January 26, 2021, including accountability provisions; and
BE IT FURTHER RESOLVED that the County of ______ urges all other political subdivisions of the State of Missouri, on behalf of their residents, to pass a similar resolution in support of passing House Bill 85 and Senate Bill 39 into law during the 2021 legislative session; and
BE IT FURTHER RESOLVED that the County of ______ intends to vigorously uphold the right of the people to keep and bear arms.
There are several resources that help you quickly identify the gun laws in your state so that you can see how constitutional your state is and what needs to be changed:
Gun Owners of America and the Tenth Amendment Center have SAPA models on their websites.
The NRA-ILA website has a list of gun laws by state which give you a good overview of the status of gun rights in your state even though the NRA has fought for several pieces of legislation that infringe on the right to keep and bear arms.
The ATF website has an excellent resource – State Laws and Published Ordinances - where you can see how they are infringing on your rights in each state.
We must protect state and local authority against federal consolidation. We are a republic of independent sovereign states. Our states created the federal government through the Constitution. Our states must do their duty to enforce their compact and protect each state’s residents. Our states must protect each American’s right to defend life, liberty and property. Encourage your state to take this stand.
There are also several constitutional carry measures being forwarded, such as the one in Georgia: Georgia Constitutional Carry Act of 2021
Over the years there have been a few presidential administrations who have proposed adding additional seats the Supreme Court. Court packing is not a new or novel proposal. However, if the American people are to allow their federal politicians to increase, or decrease, the number of Supreme Court justices, it is essential that we understand how this high court was created and its proper limited and defined authority as established by the Constitution.
Those who ratified our Constitution were deeply concerned about the tendency for courts to expand their authority over time and they did everything they could to ensure that America would not be ruled, as Britain often was, by an Oligarchy of judges. Whether you have 3 justices or 13 is not as important as making sure those justice stay confined to the boundaries of their authority as delegated by the Constitution. If we have justices that believe their authority is supreme, if Americans are taught to believe that the Supreme Court is the ultimate authority to their own power and the power of the federal government, we will have created, not by fact but by error, the very government our founders separated from.
Americans, whether liberal or conservative, must know these five facts about the Supreme Court and the Constitution that created it.
1. “The powers not delegated to the federal government…are reserved to the States respectively, or to the people.” Tenth Amendment
The Tenth Amendment of the Constitution makes it clear; if a power is not specifically delegated to the federal government is a power that is reserved to the States. Powers that have not been specifically delegated to the federal government are not powers the federal government can lawfully exercise. The powers delegated to the courts are enumerated in Article 3 of the Constitution and thorough read of Article 3 proves there are powers specifically not delegated to the Supreme Court so they will remain at the State level. In fact, the majority of judicial authority was to remain at the State level without federal court involvement. The legal proof of this comes from those who ratified the Constitution, the true authority for the meaning and application of the Constitution.
"The great mass of suits in every State lie between Citizen & Citizen, and relate to matters not of federal cognizance." Madison to Washington 18 Oct. 1787
"The foundation of this assertion is that the national judiciary will have no cognizance of them, and of course they will remain determinable as heretofore by the state courts only, and in the manner which the state constitutions and laws prescribe.: -Federalist #83
2. “…the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land.” Article 6 sec 2
Only laws created by the federal government that are made pursuant to constitutionally enumerated powers are the “supreme Law of the Land.” Laws created by Congress, executive orders created by the executive branch beyond that delegation of power have no force or legal binding power over the States or the people; i.e. it is not the supreme Law of the Land. The language of Article 6 section 2 establishes that any law made by Congress that is inconsistent with the Constitution, in this case outside delegated power, is an invalid law, not binding upon the States or to the people. There are many proofs of this principle in the texts of those who created the federal government, here are just two:
“No law, therefore, contrary to the Constitution can be valid.” -Federalist #78
“…for the power of the Constitution predominates. Any thing, therefore, that shall be enacted by Congress contrary thereto, will not have the force of law. -James Wilson, Pennsylvania Ratifying Convention, 1787
Additionally, Article V of the Constitution outlines the only legal way the Constitution can be amended and judicial opinion is not one of those ways. Therefore, if the Supreme Court renders an opinion that is contrary to the Constitution, that opinion ought to be seen by the people as "null and void" as well. As Article 6 clause 2 establishes, the judges of the States are not bound by any act that is established outside the authorization of the Constitution.
3. “All legislative Powers herein granted shall be vested in a Congress of the United States,”
Although we often hear people refer to Supreme Court Opinions as the "law of the land" that is Constitutionally incorrect. The writing of law is a power exclusively held by Congress. Court Opinion cannot be law without violating the express limits separation of powers established by the Constitution. A violation of separation of powers is a per se violation of the Constitution which renders the court opinion invalid (see #2).
Violations of separation of power were of the utmost concern to the drafters of the Constitution. James Madison explains, quoting Montesquieu, Spirit of Laws (1748), in Federalist #47:
“there can be no liberty where the legislative and executive powers are united in the same person, or body of magistrates," or "if the power of judging be not separated from the legislative and executive powers,"
Montesquieu, Spirit of Laws, warns of the consequences of allowing the judiciary to violate separation of powers to be violated:
“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.”
4. “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;” Article 3 sec 2 cl 1
The power of the Supreme Court is limited to matters “arising under this Constitution, the Laws of the United States, and Treaties” made “under their Authority.” If a power is not specifically delegated it is not a matter over which the Supreme Court has jurisdiction. Article 3 of the Constitution specifically enumerates those powers. The Constitution is not a document of government "can'ts," it is a document of government "cans." If the power is not specifically delegated, it is not authorized. Hear the words of Alexander Hamilton in Federalist 78:
“…an affirmative grant of special powers would be absurd as well as useless, if a general authority was intended." -Federalist #83
To those who ratified the Constitution this was simple logic, but it is a very important fact that is misconstrued and disregarded all too often in modern America. Therefore, using reason, fact, and logic we must conclude Supreme Court Opinions regarding State land, Environment, Education, Firearms, etc... are not binding upon the States. To claim otherwise violates the Tenth Amendment, Article 3, and Article 6 section 2 of the Constitution. (See #1)
5. The Supreme Court is Designed to be the Weakest Branch of Government
When you look at Article 3 you will notice the jurisdiction of the Supreme Court is very limited and very specifically established. As a matter of fact as the Constitution and newly proposed federal government was being debated, Alexander Hamilton explained:
"The judicial authority...is declared by the constitution to comprehend certain cases particularly specified. The expression of those cases marks the precise limits beyond which the federal courts cannot extend their jurisdiction..." - Federalist 83
"The judiciary on the contrary has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It 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…" -Federalist 78
"It proves incontestibly that the judiciary is beyond comparison the weakest of the three departments of power..." -Federalist 78
6. The Supreme Court is Not the Ultimate Authority on Any Federal Authority... Including its own.
For the Supreme Court to be the arbiter of its own power asserts that the federal government’s only limitation is its own judgement and will. Such a premise would negate the very existence of the Constitution that created the federal government. The judiciary is just as limited in its power by the Constitution as the other two branches of government.
James Madison explains the limitation of the power of the Judiciary in his Virginia Assembly Report of 1800:
“If the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution [States]… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution…consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another--by the judiciary as well as by the executive, or the legislature.”
Thomas Jefferson, 1812:
“The great object of my fear is the federal judiciary. That body, like gravity, ever acting, with noiseless foot, and unalarming advance, gaining ground step by step, and holding what it gains, is ingulfing insidiously the special governments into the jaws of that which feeds them…government will become as venal and oppressive as the government from which we Separated.”
Courts don't issue rulings, Kings issue rulings. Courts issue Opinions and when those Opinions are not consistent with the Constitution those opinions are no more binding upon you than your next door neighbor's opinions.
In short, it really doesn’t matter how many Supreme Court justices we have. What matters will they follow the limited and defined delegation of power as those who created that authority intended and hold the other branches within those same limits? If they answer to that question is “yes,” then pack away. We know, however, the politicians who are seeking to “pack the court” are not doing so to get judges who will be true to the Constitution. These politicians seek to manipulate the people and the laws for their political favor by seating activist judges who will ignore the standards over their own authority to increase the power and influence of those who put them in power. Americans of all political ideologies must see the long term damage of this action and deny our members of Congress that authority. To ignore these self-evident truths will ensure Jefferson’s warning becomes prophecy and will reconstruct the Supreme Court into the “venal and oppressive government from which” they separated.
On March 23, 1775 Patrick Henry gave a very famous speech. In that speech he said:
“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.”
The facts I am going to provide may cause aguish to some. However, if you will follow me all the way to the end, I will show you that the knowledge of this precedent as preparation and instruction, could cause as much good as distress.
Impeachment is a provision within the Constitution the drafters, and those who ratified the Constitution, gave us as means to not only dismiss those from office who have violated their solemn trust, but to also ensure those impeached could never hold office again and therefore hold the opportunity to violate that trust again. Impeachment is found in several sections of the Constitution; Article 1, Section 2, Clause 5; Article 1, Section 3, Clauses 6 and 7; Article 2, Section 4; Article 3, Section 1- each section adding to the other the proper meaning, purpose and application of the power of impeachment.
Impeachment is a Criminal NOT Political Process
Impeachment begins when members of the House of Representatives draw up an Article(s) of Impeachment in which these members alleged that the “The President, Vice President and [any] civil Officer of the United States” has committed a crime. Article 2 section 4 outlines the very specific terms for a Constitutionally authorized impeachment. Every Article of Impeachment must find its origin in the conditions of the Constitution as outlined in Article 2 section 4.
Article 2 section 4:
“The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.”
The standard for impeachment is criminal NOT political. The only relevant question is Did a person in the trust of a federal office violate that trust by committing an actual crime? Alexander Hamilton, in Federalist 65, gives us a bold warning of what will go wrong when impeachment is used for political punishments instead of strictly holding to the criminal terms of impeachment outlined in Article 2 section 4.
“In many cases it will connect itself with the pre-existing factions, and will enlist all their animosities, partialities, influence, and interest on one side or on the other; and in such cases there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.”
When the House votes and ratifies an Article(s) of Impeachment, that Article(s) becomes a criminal charging document. When that criminal charging document is delivered to the Senate, the next stage of impeachment begins: The Trial by the Senate. To reinforce the judicial nature of this process, the chief justice of the Supreme Court presides over this Senate Trial.
Senators are expected to review the Article(s) of Impeachment, conduct an evidentiary trial, and then judge the Impeachment based upon due process and criminal legal standards. For the Senate to conduct a trial based upon political bias rather than evidence and due process makes a mockery of the process Impeachment and transmute America into a Banana Republic.
Precedent For After Office Impeachment
The “ALL CIVIL OFFICERS” phrase in Article 2 section 4 is a catch all that includes everyone who currently works for the federal government as an elected or appointed officer or has worked for the federal government in that past. Some may argue that once a person leaves federal employment, the option for impeachment is no longer viable. However, the precedent of impeachment tells us otherwise and a view of history can help us understand why.
William Belknap served as Secretary of War under Ulysses S Grant from October 25, 1869 – March 2, 1876. While Secretary of War, Belknap’s extravagant life style came into question. You see, Belknap only made $8k a year but was known for his extravagant lifestyle and expensive parties. Congress launched an investigation into his finances and found corruption that extended back to 1870.
According to Senate records, in 1870, “Belknap’s luxury-loving first wife assisted a wheeler-dealer named Caleb Marsh by getting her husband to select one of Marsh’s associates to operate the lucrative military trading post at Fort Sill in Indian territory. Marsh’s promise of generous kick-backs prompted Secretary Belknap to make the appointment. Over the next five years, the associate funneled thousands of dollars to Marsh, who provided Belknap regular quarterly payments totaling over $20,000.”
Some of the accusations against Belknap included, indirectly selling weapons to France and for accepting illicit kickbacks in exchange for making political appointments. Gun running, kickbacks, political deals for financial gain…isn’t that exactly what evidence strongly suggests Hillary Clinton is or was involved in?
According to Senate records, “On March 2, 1876, just minutes before the House of Representatives was scheduled to vote on articles of impeachment, Belknap raced to the White House, handed Grant his resignation, and burst into tears.”
Belknap’s resignation did not stop his impeachment. “Later that day, members voted unanimously to send the Senate five articles of impeachment.” What was Congress’ chief accusation against Belknap: “criminally disregarding his duty as Secretary of War and basely prostituting his high office to his lust for private gain.”
Testing That Precedent
Precedent is often established in error. Whether precedent is legally or historically correct doesn't stop the modern system from asserting it as authority and knowing that precedent is essential in creating an argument for or against it. The precedent of Belknap has yet to have been tested, so in the legal world that makes it controlling. But if modern politicians try to use the Belknap precedent to attack someone for political vengeance, they may end up getting more than they bargained for. For example, Hillary Clinton was accused of a very serious federal crime. Although the Department of Justice decided not to criminally prosecute her for that crime, under the Belknap precedent there would be nothing to stop Hillary from coming under the prosecution of impeachment, in today’s Congress, or any Congress in the future, causing her to lose her pension and to be blocked from running for federal office every again. Do not forget, the Department of Justice disclosed very damning criminal evidence against Eric Holder in the “Fast and Furious” scandal. Under this precedent Eric Holder could also be impeached.
The character of Belknap can be seen in numerous modern politicians. If members of this Congress choose to test the Belknap precedent, how many of them could find themselves on the impeachment chopping block in the future? With this knowledge in hand, while civil officers in Congress are throwing around the threat of impeachments, there is no excuse as to why James Comey, Eric Holder, Lois Learner, Hillary Clinton, Barack Obama, and yes several Supreme Court justices ought not be impeached even today.
So there is a precedent to allow impeachment after office for the president, vice president, and every civil officer. The question remains, do those with the power to impeach really want to open that Pandora’s Box only to find themselves consumed when the change in political winds come, because all of history dictates they will come.
written by JC Hall
The anarchist movement has a long history and encompasses a wide range of movements from the labor movement to the free love movement, from anarcho-communism to Rothbardian economics. Anarchist theory is not inherently violent, but there is a violent faction within the broader anarchist movement which is revealing itself once again in America. As the violent wing gets exposed, anarchists of all stripes will rally to defend their particular branch of the family tree while largely ignoring their violent cousins - the revolutionary anarchists. Hearings will be held about the events of January 6th and you will hear it framed as White Supremacists, Trump Supporters, ANTIFA or simply left versus right. All of that will be a distraction and will miss the bigger picture, as usual and the Revolutionary Anarchist faction will continue remain a mystery to the American public. Welcome to American politics!
AUTHOR'S NOTE: If you are looking for some proactive measures to take to influence your US Senator, you have my permission and encouragement to send this to your Senators. My thought is, even if you believe your Senator will disregard this settled law, you should send it anyway. We should never be silent with truth and every elected officer should be presented with the truth so they cannot claim ignorance. It would be a very powerful message if you could organize your circle of people to all send this Legal Memorandum. If you have any questions, you can always reach me at KrisAnneHall.com
On January 6, 2021 a group of Americans assembled in Washington DC: some to protest the counting of Electoral College votes they believe were cast as a result of a fraudulent election, some to support President Trump, some to encourage the counting of the Electoral College votes, some to protest President Trump, and some to simply create chaos and destruction. During this assembly some in this assemblage chose to engage in violence that resulted in damage to the Capitol building and the loss of life. During this assembly of multiple groups and individuals, including President Donald Trump gave a speech, which transcripts are available.
HR 24- Articles of Impeachment allege that the actions of those who carried out the violence are attributable to President Donald J Trump due to words uttered at a rally and thus subjects him to legal and constitutional impeachment from office pursuant to Article 2 section 4 of the US Constitution for “Incitement of Insurrection.”
Article 2 section 4 of the Constitution reads:
The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.
Answers & Discussion
Incitement has a very settled definition in law and the standard is referred to as the “Brandeburg Test” as resulting from Brandenburg v. Ohio, 395 US 444 (1969).
The Brandenburg test was established in Brandenburg v. Ohio, 395 US 444 (1969), to determine when inflammatory speech intending to advocate illegal action can be restricted. In Brandenburg, a KKK leader gave a speech at a rally and, after speaking a laundry list of racial slurs, Brandenburg then said; "it's possible that there might have to be some revengeance [sic] taken." In this opinion, the Supreme Court held that the government can only infringe upon freedom of speech by criminalizing speech when a two-prong standard created by this court is met. The standard is as follows:
Further Supreme Court opinions give specific direction on the application of the Brandenburg Test. The Supreme Court in Hess v. Indiana (1973) applied the Brandenburg test to a case in which an Indiana University protestor said, “We’ll take the fucking street again” (or “later.”) The Supreme Court held that the university protestor's profanity was protected under the Brandenburg test, as speech that “amounted to nothing more than advocacy of illegal action at some indefinite future time.” The Court held that “since there was no evidence, or rational inference from the import of the language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished by the State on the ground that they had a ‘tendency to lead to violence.’”
In NAACP v. Claiborne Hardware Co.(1982), Mr. Evers made threats of violence against anyone who refused to boycott white businesses. The Supreme Court applied the Brandenburg Test and found that Mr. Evers’ speech was protected under the principles of freedom of speech: “Strong and effective extemporaneous rhetoric cannot be nicely channeled in purely dulcet phrases. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech.”
The question is, Did President Donald Trump engage in speech that qualifies under the Brandenburg Test as inciting. The only relevant evidence in this accusation will be the transcripts of President Trump’s speech. In this transcript we see no language that fits the Brandenburg Test definition of inciting. What a reader of this transcript will find is:
“We have come to demand that Congress do the right thing and only count the electors who have been lawfully slated, lawfully slated. I know that everyone here will soon be marching over to the Capitol building to peacefully and patriotically make your voices heard.”
Using the Brandenburg Test, as established by the Supreme Court of the United States, it must be concluded that President Donald Trump’s speech did not rise to the criminal level of inciting. Consistent with the Supreme Court’s opinions, the speaker over a group cannot be held accountable for the actions of that group unless the speaker “directed to inciting or producing imminent lawless action,” AND the speech is “likely to incite or produce such action.” It is highly dubious to assert that directing a crowd to “peacefully and patriotically make your voices heard” incites violence and insurrection. There can be disagreement as to the appropriate nature of President Donald Trump’s words in general. There cannot be disagreement as to the statements made in his speech, since they are recorded and freely available.
This is the only reasonable and moral way to maintain the essential standard of freedom of speech as enshrined in the United States Bill of Rights. Any standard that deviates from this test in favor of criminalizing speech oughto be unacceptable in a nation built upon the essential principles of personal liberty.
The Supreme Court held in Texas v. Johnson 491 US 397 (1989) that freedom of speech is "a bedrock principle underlying the First Amendment is that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." In RAV v. St. Paul 505 US 377 (1992), the Court held that even “hate speech” is protected under these terms of the First Amendment. Finally, the Supreme Court held in Gregory v Chicago 394 US 111 (1969), “To let a policeman's command become equivalent to a criminal statute comes dangerously near making our government one of men rather than of laws. There are ample ways to protect the domestic tranquility without subjecting First Amendment freedoms to such a clumsy and unwieldy weapon.” To allow disagreement over words and meanings, to allow political dissention to become the standard of criminal activity violates the Constitution and the standards established by the Supreme Court, transmutes America away from a land whose foundation is settled in due process and rule of law to the “clumsy and unyielding weapon” of politicians, mob rule, and arbitrary standards that are antithetical to everything that embodies our Constitutional Republic.
Because President Donald Trump’s speech does not meet the two-prong test as established by the Supreme Court, it must be concluded that his speech has not risen to the level of criminal activity. Since the standards of due process lead us to conclude that no crime was committed, the House Impeachment accusation is unlawful as there was no violation of a "high crime or misdemeanor." Finally, because the criminal elements of inciting are not met, President Trump cannot, under the law and the Constitution, be convicted by the Senate at trial.