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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.

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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?

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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 

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Vetting Kavanaugh According To The Constitution

By KrisAnne Hall, JD

When Donald Trump nominated Brett Kavanaugh for the supreme Court, he did what is likely the most important act a president of these United States can possibly do, constitutionally speaking.  The President’s powers are very limited and defined according to Article 2 of the Constitution and he has very little authority to personally impact the lives of the people, except through this power to nominate judges and  justices.  Yet, according to the Constitution, this is only 1/3 of the process necessary to seat a justice.  A person may be nominated by the president to be a justice, but a justice is not seated until the person is vetted and confirmed by the Senate.  The bifurcation of this process was an intentional safeguard to ensure the appointment of a justice that would be independent of both the executive and legislative branches and to ensure that the judicial branch would remain true to the Constitution, rather than ruled by politics.

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