Patriot Act Debacle
posted by Chuck Demastus at 8:31 PM
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Thursday, March 29, 2007
Tuesday, March 27, 2007
Nullification Re-visited, Part Two
Robert F. Hawes Jr.
rhawes73@gmail.com
Sovereignty and State Powers within the Union
Those who reject doctrines such as nullification and secession often point to the "Supremacy Clause" in Article VI of the Constitution, where we read: "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 not withstanding." Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.
The powers of the federal government are, as the Constitution itself clearly states, "delegated," not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:
"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States."
And...
"But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger 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…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..."
These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:
Kentucky Resolution: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States…that to this compact each State acceded as a State…that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself…"
Virginia Resolution: "RESOLVED…That this Assembly most solemnly declares a warm attachment to the Union of the States…That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact…"
A Constitutional Right to Resist
It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are "acts of usurpation," as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.
In light of this, Andrew Jackson's assertion that nullification is "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed," is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by "oath or affirmation". It is absolutely authorized by the Constitution's "spirit," which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The "great object" for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:
"Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments..."
Nullification - a state exercising its natural right to self-defense in protecting its reserved rights and powers - is not destructive of any of these things that Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other "police actions" and "peace-keeping missions," none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very "diseases of faction" that Madison and others feared. And as for those "military establishments which have subverted the liberties of the old world," we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic "crisis" situations, with or without state cooperation and permission.
Responses to Two Common Objections
What about the Courts?
Some of you who read this article will inevitably ask: "What about the federal courts? Aren't they supposed to determine the constitutionality of a law or a given action?" Over time, nationalists -- thanks primarily to Chief Justice John Marshall's decisions early in the country's history -- have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is "not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."
The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution's greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all "cases in law and equity arising under this Constitution," and Article VI states that the Constitution is the "supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing." As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt – or, as Hamilton once put it, "evident" – violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a 'separation of powers' issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.
Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how "Judge so-and-so" votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.
The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson's solution to the clash of federal versus state authority and constitutional ambiguities:
"But the Chief Justice [Federalist John Marshall] says, 'there must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
Wouldn't Nullification lead to Anarchy?
Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!
The assumption here seems to be that, should nullification ever come into 'fashion,' that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:
First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles – such as providing for the common defense – and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, "It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions." As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.
Secondly, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between Washington and the states, except in instances where opposing political parties are involved.
Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.
Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.
Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds – New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska's case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not utilize Daylight Savings Time. Nebraska has the country's only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.
Conclusion
Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution's fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, "The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so."
The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry 'papers'. If the State of Montana decides to nullify this so-called 'law', it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana's elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.
Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place – while such is still possible. Benjamin Franklin once said, "We have given you a Republic, if you can keep it." Simply put, nullification is all about "keeping it".
Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. His website is http://www.devolutionusa.com. He lives in South Carolina.
rhawes73@gmail.com
Sovereignty and State Powers within the Union
Those who reject doctrines such as nullification and secession often point to the "Supremacy Clause" in Article VI of the Constitution, where we read: "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 not withstanding." Nationalists frequently use this clause to argue that the federal government is supreme over the states in every way; however, this is an error, one that can be corrected readily enough by reading the clause again without wearing authoritarian goggles. The clause states that the Constitution and all laws made pursuant to it, are supreme, not the federal government itself or any law it passes at whim.
The powers of the federal government are, as the Constitution itself clearly states, "delegated," not inherent. In ratifying the Constitution, the states agreed to give up the exercise of certain sovereign powers (such as the power to declare war) in favor of having those powers exercised by the Union on behalf of all the states. All other rights and powers were to be retained by the states (see Amendments 9 and 10). This arrangement made the federal government a sort of agent of the states, authorizing it to act on their behalf in certain ways, while, at the same time, making it possible for the states to manage their internal affairs as they saw fit, and to peacefully interact with one another and with the nations of the world. Alexander Hamilton remarked on this state of affairs as follows in Federalists 32 and 33 respectively:
"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States."
And...
"But it will not follow from this doctrine [the 'supremacy' provision of Article VI] that acts of the larger 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…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..."
These concepts were echoed by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions of 1798:
Kentucky Resolution: "The several States composing the United States of America, are not united on the principle of unlimited submission to their General Government but that, by a compact under the style and title of a Constitution for the United States…that to this compact each State acceded as a State…that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself…"
Virginia Resolution: "RESOLVED…That this Assembly most solemnly declares a warm attachment to the Union of the States…That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; as limited by the plain sense and intention of the instrument constituting that compact…"
A Constitutional Right to Resist
It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are "acts of usurpation," as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.
In light of this, Andrew Jackson's assertion that nullification is "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed," is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by "oath or affirmation". It is absolutely authorized by the Constitution's "spirit," which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The "great object" for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:
"Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments..."
Nullification - a state exercising its natural right to self-defense in protecting its reserved rights and powers - is not destructive of any of these things that Madison mentioned, but usurpation certainly is destructive of those ends, as we have seen illustrated time and time again throughout our history. Usurper presidents (most notably Abraham Lincoln) have killed more than half a million Americans in undeclared wars and other "police actions" and "peace-keeping missions," none of which are constitutionally authorized. Unconstitutional acts of Congress and activist courts have severely restricted our commerce and polluted our common interests with partisan, political corruption, thus exacerbating the very "diseases of faction" that Madison and others feared. And as for those "military establishments which have subverted the liberties of the old world," we are starting to see this now as well, as federal paramilitary raids increase against the civilian population (sometimes in defiance of state laws), and as the current government seems determined to employ military forces in future domestic "crisis" situations, with or without state cooperation and permission.
Responses to Two Common Objections
What about the Courts?
Some of you who read this article will inevitably ask: "What about the federal courts? Aren't they supposed to determine the constitutionality of a law or a given action?" Over time, nationalists -- thanks primarily to Chief Justice John Marshall's decisions early in the country's history -- have been very successful at planting the idea in the American mindset that our federal courts are the final arbiters of any and all constitutional issues, but there is actually no constitutional justification for this notion. Indeed, it may surprise you to learn that, in Federalist 81, Alexander Hamilton remarked that there is "not a syllable in the plan under consideration [the Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution, or which gives them any greater latitude in this respect than may be claimed by the courts of every State. I admit, however, that the Constitution ought to be the standard of construction for the laws, and that wherever there is an evident opposition, the laws ought to give place to the Constitution."
The role of the federal courts and the final determination of constitutional issues in dispute is, in my opinion, the Constitution's greatest failing. Article III empowers the United States Supreme Court with legitimate authority over all "cases in law and equity arising under this Constitution," and Article VI states that the Constitution is the "supreme Law of the Land…any Thing in the Constitution or Laws of any State to the Contrary not with-standing." As a result, it follows that the Court should have authority to rule in situations where violations of some clear constitutional provision are alleged to have occurred. However, what if the question before the court is not how the Constitution applies to a given matter, but if the Constitution applies to it at all? Or what if a verdict of the court introduces some new doctrine, and thus somehow changes the fundamental relationship of the federal government to the states and individual Americans? Now the question has undergone a radical change. We are no longer considering an overt – or, as Hamilton once put it, "evident" – violation of a constitutional provision or prohibition. In this case, we are dealing with the question of what are the delegated powers of the federal government and what are the reserved powers of the states and the people, of whether the federal courts, by involving themselves in a given matter, are somehow changing the Constitution and the framework of our country by fiat. In other words, the notion of federal judicial supremacy creates a 'separation of powers' issue (in some instances) because it makes the states subservient to an arm of the federal government in the matter of their reserved rights and status. Further, it turns the idea of delegated powers on its head by giving the federal government final authority in the matter of the scope of its own powers, thus giving it the ability to re-invent itself and evolve beyond its authorized scope.
Also, consider how the steady politicization of the federal courts has affected our society at large, given the steady expansion of judicial power. This issue came to light in a particularly noteworthy way following the 2000 General Election. When the matter of recounting votes was thrown into the courts, suddenly the media was filled with stories of how "Judge so-and-so" votes, or who appointed him, and whether he was a Republican or Democrat; but, interestingly enough, what was not being discussed was the fact that we were openly admitting that our court systems have become politicized, and that Lady Justice was no longer blind but actually on the take.
The politicization of our courts is now all but openly admitted as such, and some politicians and special interest leaders take considerable pride in their efforts to tip the scales of justice in their agenda’s favor. Consider any typical Senate hearing on the appointment of a federal judge or Supreme Court justice. Senators parade before the television cameras asking candidates how they feel on various litmus test political issues. Judicial appointments come down, not to whether the judge understands the Constitution and has a history of upholding the law, but to whether he passes the political litmus test of the dominant party! Thus, our sacred liberties under the law have slowly been supplanted by the advancement of political agendas operating in the halls of justice. Due to the efforts of the nationalists, we have lost the concept of federalism and the separation of powers. Anything and everything is now subject to being read into the federal Constitution, and politics reigns supreme.
The Constitution never foresaw the development of political parties or the way partisan wrangling would play havoc with our system of government, particularly how it would corrupt the courts. As such, nullification is an important means by which states can defend themselves against partisan abuses of federal power. The Constitution is imperfect in this regard, and, I believe, should be updated to provide for Thomas Jefferson's solution to the clash of federal versus state authority and constitutional ambiguities:
"But the Chief Justice [Federalist John Marshall] says, 'there must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two thirds of the States. Let them decide to which they mean to give authority claimed by two of their organs. And it has been the peculiar wisdom and felicity of our constitution, to have provided this peaceable appeal, where that of other nations is at once to force."
Wouldn't Nullification lead to Anarchy?
Ah, my favorite authoritarian bogeyman, ANARCHY. Failure to comply with authoritarian wishes will lead to chaos, blood in the streets, the rise of the undead, mattress tags being thoughtlessly torn off by the millions, and a multitude of similar horrors. Good Lord, deliver us!
The assumption here seems to be that, should nullification ever come into 'fashion,' that states will start nullifying whatever federal laws they please and the country will fall apart. This fear hardly seems warranted though, and for a number of reasons:
First of all, it is in the best interest of the states to support the federal government in its legitimate, constitutional roles – such as providing for the common defense – and to cooperate with one another. State government officials are well aware of this fact, as are the people of the states, and neither will have any desire to unnecessarily alienate themselves from the rest of the country or bring about a crisis. As James Madison wrote in his report on the Virginia Resolution against the Alien and Sedition Acts in 1800, "It does not follow, however, that because the states as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed in a hasty manner, or on doubtful and inferior occasions." As is true of the use of any of their other rightful powers, states should exercise discretion in their use of nullification.
Secondly, political overlap means that, regardless of whether politicians represent state or federal interests, members of the same political party can be expected to pull in roughly the same direction. This factor lessens the potential for confrontations between Washington and the states, except in instances where opposing political parties are involved.
Third, it is in the best interests of the country overall that partisan designs do not corrupt the law or the political process; and while this can occur at both the federal and state levels, it is arguably more dangerous a menace at the federal level. This is because the effects of a bad state law or judicial edict are usually confined to the state that passes it, whereas bad federal laws and edicts affect every state. Freedom is apt to flourish more in de-centralized rather than centralized societies.
Fourth, recognition of the fact that states are likely to nullify controversial federal laws or edicts may help restrain federal politicians from attempting such actions in the first place.
Fifth, states already ignore onerous federal laws and provisions on occasion, and handle their internal affairs differently on a variety of issues every day, and the four horsemen of the apocalypse have yet to ride. Consider that not every state has adopted mandatory seatbelt or motorcycle helmet usage, in spite of federal threats to withhold highway funds – New Hampshire is one such state. Some states (like Montana) allow individuals to use marijuana for medicinal purposes, or in Alaska's case, for any reason at all (up to a certain quantity limit), and this is in direct contravention of federal policy (federal agencies continue to illegally raid and imprison persons living in such states). Arizona and Hawaii do not utilize Daylight Savings Time. Nebraska has the country's only unicameral, non-partisan legislature. And for one last example, consider that the State of Utah recently withdrew from the federal No Child Left Behind program. In spite of all these differences between the ways that states conduct their business, and others that I do not have space to mention, the country has gotten along remarkably well. The only people who are anxious about these differences are elitist authoritarians who think that it is, or should be, incumbent on everyone to act as the authoritarians believe is best.
Conclusion
Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution's fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, "The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so."
The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry 'papers'. If the State of Montana decides to nullify this so-called 'law', it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana's elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.
Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place – while such is still possible. Benjamin Franklin once said, "We have given you a Republic, if you can keep it." Simply put, nullification is all about "keeping it".
Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. His website is http://www.devolutionusa.com. He lives in South Carolina.
posted by Chuck Demastus at 5:08 AM
0 comments
Friday, March 23, 2007
Tuesday, March 20, 2007
Court Affirms: Right to Bear Arms Predates U.S. Constitution
America First Party
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http://www.AmericaFirstParty.org
Tuesday, March 20, 2007
Court Affirms: Right to Bear Arms Predates U.S. Constitution
Boulder, CO - The America First Party applauds the D. C. Court of Appeals for its recent decision to throw out the District of Columbia's oppressive 31 year old gun regulations. Its strongly worded defense of the Second Amendment asserts that the right to bear arms is individual, not collective, and that the right to individual firearm ownership pre-existed the Constitution. If the District appeals, the case will pass to the Supreme Court and hopefully result in the overturning of unconstitutional gun regulations nationwide.
The District of Columbia and most Federal appeals courts hold that the right to bear arms is a collective right wholly predicated on membership in a militia. Some postulate that since militias no longer exist, the Second Amendment is no longer effective. This absurd interpretation is contradicted by the fact that the first nine articles of the Bill of Rights relate to individual rights. While affirming this point, the D. C. Appeals Court also observed that if mere defense of militias had been the object of the Second Amendment, the first Congress would have likely enacted a more direct statement to that effect.
National Chairman Jonathan Hill stated, "If there is a natural and unalienable right to life, as the Declaration states, then there is necessarily a natural right to defend that life. In some circumstances, an effective defense is not practical without a firearm. This means that there is a natural right to bear arms that pre-exists the Second Amendment and which has existed since the invention of firearms. The Second Amendment only seeks to guarantee that this pre-existing right 'shall not be infringed.'"
National Secretary John Pittman Hey stated, "The D. C. Appeals Court acknowledged that the right to bear arms relates to 'private purposes' as well as public civic purposes such as maintenance of the militia. These private purposes, the court stated, were understood to include defense against violent criminals and resistance to 'tyrannical government.'"
The America First Party platform expresses support for Second Amendment rights as guaranteed by the United States Constitution and as given to us by Almighty God. The platform declares this to be an individual's right, and calls for repeal of all unconstitutional gun laws.
1630 A 30th Street #111
Boulder, Colorado 80301
http://www.AmericaFirstParty.org
Tuesday, March 20, 2007
Court Affirms: Right to Bear Arms Predates U.S. Constitution
Boulder, CO - The America First Party applauds the D. C. Court of Appeals for its recent decision to throw out the District of Columbia's oppressive 31 year old gun regulations. Its strongly worded defense of the Second Amendment asserts that the right to bear arms is individual, not collective, and that the right to individual firearm ownership pre-existed the Constitution. If the District appeals, the case will pass to the Supreme Court and hopefully result in the overturning of unconstitutional gun regulations nationwide.
The District of Columbia and most Federal appeals courts hold that the right to bear arms is a collective right wholly predicated on membership in a militia. Some postulate that since militias no longer exist, the Second Amendment is no longer effective. This absurd interpretation is contradicted by the fact that the first nine articles of the Bill of Rights relate to individual rights. While affirming this point, the D. C. Appeals Court also observed that if mere defense of militias had been the object of the Second Amendment, the first Congress would have likely enacted a more direct statement to that effect.
National Chairman Jonathan Hill stated, "If there is a natural and unalienable right to life, as the Declaration states, then there is necessarily a natural right to defend that life. In some circumstances, an effective defense is not practical without a firearm. This means that there is a natural right to bear arms that pre-exists the Second Amendment and which has existed since the invention of firearms. The Second Amendment only seeks to guarantee that this pre-existing right 'shall not be infringed.'"
National Secretary John Pittman Hey stated, "The D. C. Appeals Court acknowledged that the right to bear arms relates to 'private purposes' as well as public civic purposes such as maintenance of the militia. These private purposes, the court stated, were understood to include defense against violent criminals and resistance to 'tyrannical government.'"
The America First Party platform expresses support for Second Amendment rights as guaranteed by the United States Constitution and as given to us by Almighty God. The platform declares this to be an individual's right, and calls for repeal of all unconstitutional gun laws.
posted by Chuck Demastus at 7:05 AM
0 comments
Sunday, March 18, 2007
Friday, March 16, 2007
Norris Faces Off with Governor on Self Defense Bill
Bredesen Expresses Opposition on Right to Bear Arms during Declared Emergencies
NASHVILLE --- The Bredesen Administration expressed opposition to Senate Majority Leader Mark Norris' legislation limiting the Governor's power to confiscate firearms and restrict the sale of ammunition during declared emergencies.
Senate Bill 1597 would prohibit the Governor from confiscating weapons from law-abiding citizens or restricting the ability to purchase guns and ammunition during times of natural disaster or declared emergency. Most of the public is unaware that the Governor currently holds this statutory seizure authority.
Norris said he received a letter from Mary Freeman, the Governor's Director of Legislation, requesting he "consider halting further action" on Senate Bill 1597. The letter states they "disagree with the intent of this legislation and therefore cannot support it."
"There is a feeling of déjà vu here," Norris said. "I expect passage of the measure again in the Senate, but I remain confused as to why the Administration feels threatened. The letter's tone infers it again faces an uphill battle in the House."
The measure passed the Senate last year but failed in the House.
Norris said he simply wants to protect Tennesseans' basic constitutional rights.
"The Second Amendment right to keep and bear arms is never more precious than during natural disasters or declared emergencies when self defense can be the key to survival," Norris said. "The Hurricane Katrina disaster was a wake-up call that this could happen."
In New Orleans, governmental confiscation of citizens' arms sparked outrage in the aftermath of Katrina. A federal judge later enjoined the City of New Orleans from violating Second Amendment rights after the National Rifle Association (NRA) filed suit.
"New Orleans citizens in lawful possession of weapons to protect their homes and families were forced to surrender those arms," Norris said. "We do not want a repeat of that scenario in Tennessee. The ability to defend one's home place and family in the absence of adequate law enforcement is essential."
NASHVILLE --- The Bredesen Administration expressed opposition to Senate Majority Leader Mark Norris' legislation limiting the Governor's power to confiscate firearms and restrict the sale of ammunition during declared emergencies.
Senate Bill 1597 would prohibit the Governor from confiscating weapons from law-abiding citizens or restricting the ability to purchase guns and ammunition during times of natural disaster or declared emergency. Most of the public is unaware that the Governor currently holds this statutory seizure authority.
Norris said he received a letter from Mary Freeman, the Governor's Director of Legislation, requesting he "consider halting further action" on Senate Bill 1597. The letter states they "disagree with the intent of this legislation and therefore cannot support it."
"There is a feeling of déjà vu here," Norris said. "I expect passage of the measure again in the Senate, but I remain confused as to why the Administration feels threatened. The letter's tone infers it again faces an uphill battle in the House."
The measure passed the Senate last year but failed in the House.
Norris said he simply wants to protect Tennesseans' basic constitutional rights.
"The Second Amendment right to keep and bear arms is never more precious than during natural disasters or declared emergencies when self defense can be the key to survival," Norris said. "The Hurricane Katrina disaster was a wake-up call that this could happen."
In New Orleans, governmental confiscation of citizens' arms sparked outrage in the aftermath of Katrina. A federal judge later enjoined the City of New Orleans from violating Second Amendment rights after the National Rifle Association (NRA) filed suit.
"New Orleans citizens in lawful possession of weapons to protect their homes and families were forced to surrender those arms," Norris said. "We do not want a repeat of that scenario in Tennessee. The ability to defend one's home place and family in the absence of adequate law enforcement is essential."
posted by Chuck Demastus at 12:18 PM
0 comments
Thursday, March 15, 2007
Nullification Re-visited, part One.
Robert F. Hawes Jr.
rhawes73@gmail.com
"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." - James Madison, Federalist 45
Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".
Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there's a word we haven't seen in awhile, and with good reason. You see, the word "nullify" -- like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution" -- belongs to a special class of political four-letter words, so called not for the number of letters they actually contain, of course, but simply for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.
For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I'm sorry, Hal, but this doesn't work. Montana didn't pass the REAL ID Act, so it can't very well repeal it; and nowhere in Ms. Rice's bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."
This language seems pretty clear to me. Ms. Rice's bill says that Montana doesn't like the REAL ID Act, doesn't think it's constitutionally sound, and won't have anything to do with it. End of story.
But a state can't do that...can it?
Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts -- this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that's the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are 'discredited' political doctrines largely for the same reason that your claim to your wallet can be 'discredited' by a mugger in an alley. Ask Rush Limbaugh if you don't believe me. "Might makes right" is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it "patriotism," while simultaneously demonizing his opposition as "anarchists" and/or "anti-American."
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:
What is Nullification?
From the Random House Unabridged Dictionary:
Nullify - (verb)
1. to render or declare legally void or inoperative: to nullify a contract.
2. to deprive (something) of value or effectiveness; make futile or of no consequence.
Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
A Short History of Nullification
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various "personal liberty laws" that Northerners enacted in defiance of federal fugitive slave laws).
And now, with that short introduction out of the way, let's get to the meat of the issue.
Is Nullification Constitutional? Compact Theorists versus Nationalists
In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the "people of the United States" in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.
As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865), may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.
Is the Union a Consolidated Nation-state, or a Confederation of States?
Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that "these United Colonies are, and of right ought to be free and independent states." The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: "At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one."
Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, "All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance..." The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.
The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States." Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.
In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only "between the states so ratifying the same" (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: "I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible."
Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, "between the states") demonstrates for us. Patrick Henry, speaking in Virginia's ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by "the people of the United States"; however, James Madison countered that idea. "Who are the parties to it?" asked Madison, "the people -- but not the people as composing one great body -- but the people as composing thirteen sovereignties." As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a "national government...consisting of a supreme legislative, judiciary, and executive," but the plan had been rejected, and the word 'national' had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a "compact" to which the states had "acceded" (agreed to join) and the new Union as a "confederacy" and a "confederate republic." The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: "Different confederacies have different powers, and exercise them in different ways...great latitude, therefore, must be given to the signification of the term."
***
To be continued...
Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. His website is http://www.devolutionusa.com . He lives in South Carolina.
rhawes73@gmail.com
"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." - James Madison, Federalist 45
Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".
Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there's a word we haven't seen in awhile, and with good reason. You see, the word "nullify" -- like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution" -- belongs to a special class of political four-letter words, so called not for the number of letters they actually contain, of course, but simply for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.
For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I'm sorry, Hal, but this doesn't work. Montana didn't pass the REAL ID Act, so it can't very well repeal it; and nowhere in Ms. Rice's bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."
This language seems pretty clear to me. Ms. Rice's bill says that Montana doesn't like the REAL ID Act, doesn't think it's constitutionally sound, and won't have anything to do with it. End of story.
But a state can't do that...can it?
Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts -- this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that's the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are 'discredited' political doctrines largely for the same reason that your claim to your wallet can be 'discredited' by a mugger in an alley. Ask Rush Limbaugh if you don't believe me. "Might makes right" is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it "patriotism," while simultaneously demonizing his opposition as "anarchists" and/or "anti-American."
However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:
What is Nullification?
From the Random House Unabridged Dictionary:
Nullify - (verb)
1. to render or declare legally void or inoperative: to nullify a contract.
2. to deprive (something) of value or effectiveness; make futile or of no consequence.
Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.
A Short History of Nullification
Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various "personal liberty laws" that Northerners enacted in defiance of federal fugitive slave laws).
And now, with that short introduction out of the way, let's get to the meat of the issue.
Is Nullification Constitutional? Compact Theorists versus Nationalists
In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the "people of the United States" in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.
As you can see, there are some intricate issues involved here, and I cannot possibly use the short space available in this article to do them all proper justice; however, I will do my best to summarize the main points in contention and provide some clear answers. I will do so by addressing the main points of those who oppose nullification and what is called the Compact Theory of the Constitution in favor of the consolidated nation-state idea. Those who are interested in a more thorough treatment of these issues (and the issues in contention during the war of 1861-1865), may wish to refer to my book, One Nation, Indivisible? A Study of Secession and the Constitution, among other works such as: When in the Course of Human Events: Arguing the Case for Southern Secession, by Charles Adams; Was Jefferson Davis Right? by Ronald and Walter Kennedy; and The Real Lincoln and Lincoln Unmasked, by Thomas DiLorenzo.
Is the Union a Consolidated Nation-state, or a Confederation of States?
Those who favor the consolidated nation-state school have some serious problems to overcome, problems that go all the way back to the colonial era. To begin with, in spite of certain claims made by men like Webster and Lincoln to the effect that the American Union actually began in colonial times, the thirteen British colonies that eventually became the American states were always separate political entities. Certain attempts were made to institute a common government over them, but these plans were defeated by differences arising between the colonies and, further, by interference from Great Britain. Their strongest, pre-independence connection was their status as British subjects, and thus their mutual allegiance to the British crown. Nor did the Declaration of Independence create an American nation. Indeed, the Declaration merely established that "these United Colonies are, and of right ought to be free and independent states." The colonists made no declaration establishing a Union of any type amongst themselves; they merely announced that they were united in their determination to be free of the British crown. During the Constitutional Convention in 1787, delegate Luther Martin spoke to the truth of this when he said: "At the separation from the British Empire, the people of America preferred the establishment of themselves into thirteen separate sovereignties, instead of incorporating themselves into one."
Following the Declaration, the new American states began working on a plan of Union, a fact which, by itself, should establish that no such thing existed at the time. Thomas Jefferson recorded in his Autobiography that, "All men admit that a confederacy is necessary. Should the idea get abroad that there is likely to be no union among us, it will damp the minds of the people, diminish our struggle, and lessen its importance..." The plan of Union that finally emerged: the Articles of Confederation, required the agreement of every state to become effective, and so did not go into formal operation until March of 1781, when Maryland became the thirteenth state to ratify the document. Thus, the true birthday of the United States of America as a country is March 1, 1781, not July 1, 1776.
The Articles of Confederation were a political compact and established a Union of States, as even Daniel Webster later admitted. They declared outright that, "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressely delegated to the United States." Make note of the mention of sovereignty here, as being applied to the states; this will be important later in addressing nullification specifically.
In 1788, a convention called to repair defects with the Articles tossed its mandate aside and drafted a new Constitution, which was then presented to the states for ratification. Unlike the Articles, which had been ratified by the legislatures of the states (Rhode Island excepted), the Constitution was to be ratified by the people of each state via conventions called in each for that purpose. Also unlike the Articles, the Constitution was to become effective when ratified by nine states, but, as per its own language, it would be active only "between the states so ratifying the same" (see Article VII). In other words, the Constitution was to be binding only upon those states that agreed to it. As a result, when New Hampshire became the ninth state to ratify the Constitution in 1788, the Union was effectively broken up; Virginia, New York, North Carolina and Rhode Island had not ratified, and thus were no longer politically united with the other nine states. James Madison testified to this fact in comments he made to Congress on June 8, 1790, concerning North Carolina and Rhode Island, neither of which had ratified the Constitution by that time: "I allude in a particular manner to those two states who have not thought fit to throw themselves into the bosom of the confederacy: it is a desirable thing, on our part as well as theirs, that a re-union should take place as soon as possible."
Like the Articles of Confederation, the new Constitution was also a compact between the ratifying states, as the language of Article VII (specifically the words, "between the states") demonstrates for us. Patrick Henry, speaking in Virginia's ratification convention, argued that it was actually a consolidated national form of government because it referred to ratification by "the people of the United States"; however, James Madison countered that idea. "Who are the parties to it?" asked Madison, "the people -- but not the people as composing one great body -- but the people as composing thirteen sovereignties." As evidence of this, Madison pointed to the fact that each state was ratifying the Constitution for itself, whereas, had it been a truly national endeavor, a binding ratification vote would have been taken among the American people as a whole. Those who crafted the Constitution, Madison included, had in fact considered a "national government...consisting of a supreme legislative, judiciary, and executive," but the plan had been rejected, and the word 'national' had been stricken from every resolution presented to the constitutional convention from that time forward. The founders, including that rascal Alexander Hamilton, repeatedly referred to the Constitution as a "compact" to which the states had "acceded" (agreed to join) and the new Union as a "confederacy" and a "confederate republic." The fact it was not to be a confederation along the same lines as had existed under the Articles did not diminish the fact that the new Union was still a form of confederation. As Hamilton stated during the constitutional convention: "Different confederacies have different powers, and exercise them in different ways...great latitude, therefore, must be given to the signification of the term."
***
To be continued...
Robert Hawes is the author of One Nation, Indivisible? A Study of Secession and the Constitution. His website is http://www.devolutionusa.com . He lives in South Carolina.
posted by Chuck Demastus at 9:42 PM
0 comments
Wednesday, March 14, 2007
Battered Voter Syndrome
For Those Suffering from This Debilitating Disorder, New Poll Suggests Recovery Has Begun.
LANCASTER, PA/ March 12, 2007: A recent poll taken at the Conservative Political Action Conference (CPAC) in Washington, D.C. shows conservatives are fed up with the current political regime and want a new batch of leaders.
The poll (ConservativesBetrayed.com) shows 82% of those asked think the Republican Party no longer represents them. The results of the poll are tantamount to a “no confidence” vote and come in the wake of the Republican Party’s stunning defeat in November.
“Like battered spouses, many voters held on, believing time and again the promises the Republicans made about limiting government, staying true to conservative ideals and getting the country back on track” commented Constitution Party (www.constitutionparty.com) National Chairman Jim Clymer. “For far too long voters endured the disappointment of years of broken promises from those they trusted. Now, it appears voters are quietly packing their bags, filing for divorce from their abusive political party and moving in with a party that has never strayed from its constitutionally-sound platform” Clymer noted.
We Won’t Be Fooled Again
The CPAC respondents also registered their disapproval of the so-called ‘front-runners’ the GOP is offering as presidential candidates in ’08. Close to 90% of those polled said they’d vote for the conservative standard bearer Colorado Congressman Tom Tancredo over such hyper-liberal GOP darlings as Rudy Giuliani (24%) and Arizona Senator John McCain (16%). In fact, those asked said they’d vote for a third party candidate if McCain wound up being the Republican nominee. Texas Congressman Ron Paul-who has a 100% constitutionally-sound voting record, but is assiduously ignored by the Republican leadership, polled at a high 62%.
“It appears conservatives have had their hearts broken far too many times to sit quietly by and take another beating,” said Constitution Party Communications Director Mary Starrett. “Even the most trusting party loyalists have come to the embarrassing conclusion that it’s time to seek a dissolution, cut their losses and recoup what’s left of their political pride. That is why the Constitution Party has become the third largest party in the country. Disheartened voters leaving both “Big Box” parties are contacting us daily, flooding the political blogosphere with posts about their new home at the Constitution Party and visiting our website(www.constituionparty.com) in unprecedented numbers,” Starrett added.
Time to Move Out
“My view is that the Republican Party is beyond repair” commented author Tom Kovach. One cannot be for border security and vote Republican. The leading proponents of border security within the Republican Party — US Representatives Tom Tancredo and Ron Paul — are being virtually ignored by their own party”, Kovach lamented. Jim Clymer noted: “Now that voters recovering from Battered Voter Syndrome are discovering there is a way out after all, the Republican policy makers will have to realize they have no one to blame but themselves”.
Constitution Party Press Release
LANCASTER, PA/ March 12, 2007: A recent poll taken at the Conservative Political Action Conference (CPAC) in Washington, D.C. shows conservatives are fed up with the current political regime and want a new batch of leaders.
The poll (ConservativesBetrayed.com) shows 82% of those asked think the Republican Party no longer represents them. The results of the poll are tantamount to a “no confidence” vote and come in the wake of the Republican Party’s stunning defeat in November.
“Like battered spouses, many voters held on, believing time and again the promises the Republicans made about limiting government, staying true to conservative ideals and getting the country back on track” commented Constitution Party (www.constitutionparty.com) National Chairman Jim Clymer. “For far too long voters endured the disappointment of years of broken promises from those they trusted. Now, it appears voters are quietly packing their bags, filing for divorce from their abusive political party and moving in with a party that has never strayed from its constitutionally-sound platform” Clymer noted.
We Won’t Be Fooled Again
The CPAC respondents also registered their disapproval of the so-called ‘front-runners’ the GOP is offering as presidential candidates in ’08. Close to 90% of those polled said they’d vote for the conservative standard bearer Colorado Congressman Tom Tancredo over such hyper-liberal GOP darlings as Rudy Giuliani (24%) and Arizona Senator John McCain (16%). In fact, those asked said they’d vote for a third party candidate if McCain wound up being the Republican nominee. Texas Congressman Ron Paul-who has a 100% constitutionally-sound voting record, but is assiduously ignored by the Republican leadership, polled at a high 62%.
“It appears conservatives have had their hearts broken far too many times to sit quietly by and take another beating,” said Constitution Party Communications Director Mary Starrett. “Even the most trusting party loyalists have come to the embarrassing conclusion that it’s time to seek a dissolution, cut their losses and recoup what’s left of their political pride. That is why the Constitution Party has become the third largest party in the country. Disheartened voters leaving both “Big Box” parties are contacting us daily, flooding the political blogosphere with posts about their new home at the Constitution Party and visiting our website(www.constituionparty.com) in unprecedented numbers,” Starrett added.
Time to Move Out
“My view is that the Republican Party is beyond repair” commented author Tom Kovach. One cannot be for border security and vote Republican. The leading proponents of border security within the Republican Party — US Representatives Tom Tancredo and Ron Paul — are being virtually ignored by their own party”, Kovach lamented. Jim Clymer noted: “Now that voters recovering from Battered Voter Syndrome are discovering there is a way out after all, the Republican policy makers will have to realize they have no one to blame but themselves”.
Constitution Party Press Release
posted by Chuck Demastus at 6:44 PM
0 comments
Tuesday, March 13, 2007
Hate Crime Legislation Will Target Your Freedom of Speech
posted by Chuck Demastus at 8:46 AM
0 comments
Monday, March 12, 2007
Wednesday, March 07, 2007
CONSTITUTION PARTY SUPPORTS DEFENDERS OF AMERICA
VALLEY PARK, MO: The sleepy, little river town of Valley Park, a suburb in St. Louis County, has taken on the ACLU and open borders advocates. Mike White, President of the Board of Aldermen, with fellow Board members and Mayor Jeffery Whitteaker, passed an Ordinance making it illegal to hire or house illegal aliens. “We don’t want to be known as a town that was a safe haven for any future terrorists”, stated White, at a fundraiser last weekend.
The ACLU, and a host of other law firms, are providing free legal services to the businesses and landlords who hire and rent to the lawbreakers, while the City retained only 2 lawyers to defend the rule of law. Their small City budget is incurring sizeable legal defense fees.
The Constitution Party, the fastest growing and 3rd largest political party in America, and Missourians Against Illegal Immigration co-hosted last weekend’s “Defenders of America” fundraising event. Keynote speaker was Chris Simcox, president and founder of the Minuteman Civil Defense Corps., a border-watch organization comprised of many veterans. The audience generously gave numerous standing ovations for the popular Minuteman from Arizona.
As a result of their fundraising effort, Donna Ivanovich, Missouri State Chairman of the Constitution Party, and Janet Renner, Founder of Missourians Against Illegal Immigration, presented the City with a check in the amount of $5,000 for their Legal Defense Fund.
“We believe that preserving the borders of the United States is critical to maintaining the sovereignty and the security of our nation, and what Valley Park is doing should be done by many cities across America”, said Chairman Ivanovich. She emphasized that, “those in uniform who fought, and are fighting now, for this country, and those in graveyards, who gave their last full measure of devotion . . . DID NOT DO IT . . . for open borders!”
More information about the Constitution Party can be found on the Internet at www.constitutionpartymo.org or by calling the new St. Louis headquarters at (314) 956-6181 or 1+800+2VETO IRS
The ACLU, and a host of other law firms, are providing free legal services to the businesses and landlords who hire and rent to the lawbreakers, while the City retained only 2 lawyers to defend the rule of law. Their small City budget is incurring sizeable legal defense fees.
The Constitution Party, the fastest growing and 3rd largest political party in America, and Missourians Against Illegal Immigration co-hosted last weekend’s “Defenders of America” fundraising event. Keynote speaker was Chris Simcox, president and founder of the Minuteman Civil Defense Corps., a border-watch organization comprised of many veterans. The audience generously gave numerous standing ovations for the popular Minuteman from Arizona.
As a result of their fundraising effort, Donna Ivanovich, Missouri State Chairman of the Constitution Party, and Janet Renner, Founder of Missourians Against Illegal Immigration, presented the City with a check in the amount of $5,000 for their Legal Defense Fund.
“We believe that preserving the borders of the United States is critical to maintaining the sovereignty and the security of our nation, and what Valley Park is doing should be done by many cities across America”, said Chairman Ivanovich. She emphasized that, “those in uniform who fought, and are fighting now, for this country, and those in graveyards, who gave their last full measure of devotion . . . DID NOT DO IT . . . for open borders!”
More information about the Constitution Party can be found on the Internet at www.constitutionpartymo.org or by calling the new St. Louis headquarters at (314) 956-6181 or 1+800+2VETO IRS
posted by Chuck Demastus at 9:34 PM
0 comments
Tuesday, March 06, 2007
Monday, March 05, 2007
Taking the Warning of Totalitarian Government to Local Newspapers
posted by Chuck Demastus at 9:35 AM
0 comments
Saturday, March 03, 2007
Thursday, March 01, 2007
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