PLANNED PARENTHOOD: Killing Fetuses and Selling Their Body Parts

ABORTION - fetus in fluid

by Diane Rufino, July 31, 2015

STEP ASIDE DR. MENGELE…  There’s a new monster in town.

PLANNED PARENTHOOD EXPOSED!  Planned Parenthood Uses Partial-Birth Abortions to Sell Baby Parts.

“It’s another boy!”, exclaims the Planned Parenthood “lab technician” who has just finished sifting through a glass pie pan filled with the remains of a second trimester baby’s body parts. “There’s an eyeball… and there’s a leg” is clearly heard and shown for the whole world to see. Those who will not watch these videos from the Center for Medical Progress are either (a) guilty of promoting, participating and condoning these murders, passed off as “choices” and wish to maintain “plausible deniability” or (b) do not want to confirm that there ARE TENS OF MILLIONS of Americans in group (a) and would rather just go back to the good ol’ days of welcoming Caitlyn Jenner to un-mutilated society.

Unless you have an emotional and/or financial interest in killing babies, you’re not buying Planned Parenthood’s excuses for the utterly devastating videos that have put abortion enthusiasts on defense. No, it’s not about “donating fetal tissue.” It’s not about “protecting women’s health.” It’s about killing people who can’t defend themselves, selling their organs, and lying about it.   [From the Mike Church Show].

A series of four undercover videos from a pro-life group have rocked Planned Parenthood – and the national debate over abortion. The tapes, which are dated April 7, 2015, show staff from Planned Parenthood’s Rocky Mountains affiliate, located in Denver, Colorado, engaging in negotiations over human fetal body parts. In all of the videos, officials from the nation’s largest abortion provider discuss compensation for extracting organs from aborted fetuses, including, in one case, over wine and salad at lunch.  The sale of fetal body parts is illegal under federal law. The punishment for such an act includes hefty fines and/or up to 10 years in prison. Much of the debate stemming from these videos, from a legal point of view, has been over whether the conduct of Planned Parenthood constitutes “sales” or “compensation.”  The fourth video, in particular, shows the actual harvesting of fetus body parts.

Let’s put the “sale or compensation” question aside.  The much larger issues concern how abortion has been sold, and what it truly is and what are the underlying social values that have given rise to this modern-day House of Horrors.

In his article on the subject, “How the Planned Parenthood Videos Expose Abortion for What It Truly Is,” Edward Morrissey explains this latest scandal:

The conversations clandestinely captured by the activist group Center for Medical Progress would sound familiar to anyone who has held negotiations with vendors and buyers over pricing. The level of compensation changes depending on the organs involved and how cleanly they can be separated. One executive claims that all Planned Parenthood clinics want is reasonable compensation, but if they “come out a little ahead,” they’re “happy to do it.” Another jokes that she wants a Lamborghini and doesn’t want to name a figure first for fear of getting “low-balled.”

In the latest video, which depicts an actual dissection of aborted material as a technician identifies the human organs for transfer, a vice president of a regional chapter of Planned Parenthood discusses the benefits of pricing the individual parts over a flat rate for each specimen. As the technician points out intact kidneys and a spinal column in a pie dish of the torn-apart remains of a first-trimester fetus, Dr. Savita Ginde tells the undercover reporter posing as a buyer that she prefers to transact as a “per-item thing.” That “works a little better,” Ginde says on hidden camera, “just because we can see how much we can get out of it.”

To many people, these conversations sound very much like Planned Parenthood is selling tissue based on market value. Even if the prices seem rather low on a “per-item thing,” the transfers reduce the costs for disposal, turning a cost into a revenue-producing action, as John McCormack notes at The Weekly Standard. If the transactions of human flesh don’t count as profit, they at least reduce cost.

Selling human organs and tissue for profit violates federal law. However, the law also allows for compensation for the costs to produce the tissue, a point that Planned Parenthood and its defenders have raised repeatedly since the videos started emerging. Does this fit within the law, or do Planned Parenthood and its buyers cross the line? The New York Times calls this “a gray zone, legally,” but does concede that the videos raise questions about “what the law allows.”

Certainly, Congress should look into how its exceptions for tissue donation have been exploited. But this isn’t the main issue seen in these videos.

Planned Parenthood wants to keep the debate on these points to deflect from the real debate – the nature of abortion itself, and the deliberate minimization in language that has allowed it. Abortion defenders claim that the procedure does not terminate life, and that it has no more moral meaning than excising a tumor or a cyst, a “clump of cells” in the most common construction. On Twitter, a young actor in Hollywood offered a more crude assessment this week. “A pile of goop should not have more rights than a human being,” Lucas Neff tweeted, “period.”

Now, though, we see that the same abortion clinics that argue for the “pile of goop” status see things very, very differently when it comes time to benefit from the results of their services. They adjust their techniques to extract and market human organs for buyers to meet demand, with the clear value attached on the basis of both their humanity and specificity. Clinic executives like Dr. Ginde want to negotiate those markets on a per-item basis because of the value that humanity and specificity provides to both parties, “just because we can see how much we can get out of it.”

The true danger to Planned Parenthood and the entire industry is the exposure of their hypocrisy. The two positions of “clumps of cells” and negotiating over human organs from abortions are mutually exclusive. One cannot extract human organs from “a pile of goop,” or from tumors or undifferentiated “clumps of cells.” Human organs come from human beings, and the only way to harvest them from unborn human beings is to kill them first. The videos cut through all of the misdirection, all of the antiseptic generalities used in defense of abortion, to expose its true nature – and that’s what has Planned Parenthood panicked over the videos.

For those who oppose abortion, the debate over sales of human organs and tissue is very tempting, and certainly should be engaged. However, the focus should be on the admitted humanity of those whose lives come to an end in those clinics rather than the legal technicalities of compensation and sales for the “products” that result from them. Expose the lie, and let’s finally have the conversation about the value of human life in all its stages that we have spent the last 42 years avoiding.  [Edward Morrissey, “How the Planned Parenthood Videos Expose Abortion for What It Truly Is,” The Week, July 29, 2015]

CONTENT WARNING:  The remainder of this article contains content material and references video footage that is offensive and shocks the conscience. The videos show Planned Parenthood staff sorting body parts such as kidney and heart from an 11-week human fetus. It includes admissions that some of the aborted fetuses are not yet dead but that they are subsequently terminated and then harvested for organs and tissue.

On July 30, the fourth video was released by The Center for Medical Progress. The video opens with a negotiation between Vice President and Medical Director of Planned Parenthood of the Rocky Mountains Dr. Savita Ginde and a potential buyer for fetal body parts. Ginde is seen saying, “I know I’ve seen livers, I’ve seen stomachs, I’ve seen plenty of neural tissue. Usually you can see the whole brain usually come out.”

To preserve the organs, Ginde says that “we’d have to do a little bit of training” to ensure staff “didn’t crush” the parts that were wanted. Ginde warned about legal risks saying “if you have someone in a really anti [abortion] state that’s going to be doing this for you, they’re probably going to get caught.” She continued that they told their lawyer that, “we don’t want to get called on selling fetal parts across states.”

Live Action News, on July 30, reported and summarized the video as follows:

The video then cuts to the laboratory where a Planned Parenthood technician can be seen sorting through parts of aborted babies. Dr. Ginde tells the prospective buyer that they would likely structure the arrangement on a “per item,” rather than a flat fee:  “I think a per-item thing works a little better, just because we can see how much we can get out of it.”

The video can be viewed on YouTube:  https://www.youtube.com/watch?v=GWQuZMvcFA8

During the parts-sorting process of child terminated in the first trimester, Ginde notes, “Here’s a stomach, kidney, heart.” She further explains that the second trimester babies are “so big” that they won’t “be as war-torn.”  An unnamed technician later exclaims, “And another boy!” after finding a body section with legs.

Live Action President Lila Rose issued a strong statement blasting the unethical and improper behavior of Planned Parenthood: “Even as more tapes emerge of top-level Planned Parenthood executives bartering and negotiating over the parts of aborted children, our nation will fund Planned Parenthood with over 1.4 million dollars today alone. As the outrage only continues to grow, Congress and the President must act immediately to stop the forced taxpayer funding of these horrific and barbaric facilities.”

In the first shocking video, which has been viewed almost 3 million times, Planned Parenthood Senior Medical Director Dr. Deborah Nucatola discusses the potential sale of fetal body parts.  This first video can be viewed on YouTube – https://www.youtube.com/watch?v=jjxwVuozMnU.

The second shocking video was released on July 22 and shows a Planned Parenthood official haggling over the price of aborted baby tissue and body parts. During the gruesome conversation, Medical Directors’ Council President, Dr. Mary Gatter, even jokes that she wishes to buy a Lamborghini with the profits.  The second video can be viewed on YouTube –  https://www.youtube.com/watch?v=OGwV4NnJoCw.

The third video is perhaps the most graphic and gruesome of all. It shows the harvesting of the unborns’ organs. The video can be viewed at:  https://www.youtube.com/watch?v=jugZUvs0-y8.

Congress is conducting an investigation into the scandal, while President Obama remains silent on the matter. A measure has been introduced in the U.S. Senate by Joni Ernst, Rand Paul, and James Lankford to defund Planned Parenthood of taxpayer support. Senator Lankford remarked that, “It is time for federal taxpayer funding for Planned Parenthood to end and let community health centers use that funding to provide health care services for those in greatest need.”

The states themselves are conducting investigations as well. To date, Planned Parenthood has refused to appear and testify.

The full-length video exposing Planned Parenthood’s use of partial birth abortions to harvest and sell baby parts is over two hours and can be viewed on YouTube –https://www.youtube.com/watch?v=H4UjIM9B9KQ.

On February 26, 2015, former director of Planned Parenthood who became a pro-life advocate, Abby Johnson, appeared on the Mike Huckabee Show. In the interview, she went into great detail on the horror that she saw during an abortion procedure and described how she watched an unborn baby fight for its life.  Her interview can be seen at:  https://www.youtube.com/watch?v=6Rx8hL4QSEs.

We cannot meaningfully address the moral blight of our time – abortion (equating it with a woman’s right of equality and choice) WITHOUT discussing its prevention: (1) shifting our social and cultural norms such that sex is not as pervasive, expressive, and cavalier as it has become;  (2) making birth control mandatory OR emphasizing/teaching abstinence;  (3) teaching in our schools what exactly happens to a fetus when a woman aborts it; and  (4)  empowering religious institutions in our communities to help raise our children with values that promote life, health, and dignity, and which further a culture of morality which our country is so sorely lacking.

National sins bring national calamities. We saw that with our first national sin – slavery.  In 1773, probably one of our most prophetic Founding Fathers, George Mason, wrote: “Slavery is that slow Poison, which is daily contaminating the Minds & Morals of our People. Every Gentlemen here is born a petty Tyrant. Practiced in Acts of Despotism & Cruelty, we become callous to the Dictates of Humanity, & all the finer feelings of the Soul. Taught to regard a part of our own Species in the most abject & contemptible Degree below us, we lose that Idea of the Dignity of Man, which the Hand of Nature had implanted in us, for great & useful purposes. Habituated from our Infancy to trample upon the Rights of Human Nature, every generous, every liberal Sentiment, if not extinguished, is enfeebled in our Minds.” At the Philadelphia Convention in 1787, he warned that the newly-organized Union of states MUST abolish slavery or face the wrath of our Creator: ““Every master of slaves is born a petty tyrant. They bring the judgment of Heaven on a country. As nations cannot be rewarded or punished in the next world, they must be in this. By an inevitable chain of causes and effects, Providence punishes national sins by national calamities.”

Mason speaks to the universal truth bespeaks the universal truth that civilizations go through a repeatable cycle which transitions from slavery to freedom and back to slavery (or other form of bondage). This is perhaps true because of the very predicable nature of man himself. It follows from the duality of human nature that man is capable both of moral greatness as well as moral degeneracy. That duality is tempered by the fact that the desire for freedom is universal in all human beings, whether they live moral lives or not, and eventually then those same human beings become complacent in that freedom and allow themselves to become too degenerate to preserve that freedom.

When a segment of society can be sacrificed for the benefit of another, then we have to question our notions of freedom and equality, and moreover, we have to fear the wrath that only a universal judge can exact.

References:

Mike Church, “The Daily Republican, July 30, 2015.  Referenced at:  http://us4.campaign-archive2.com/?u=a7c67a0257f1fe4769a31f098&id=27e248fbf7&e=b300ce6512

Edward Morrissey, “How the Planned Parenthood Videos Expose Abortion For What It Truly Is,” The Week, July 29, 2015.  Referenced at:  http://theweek.com/articles/568788/how-planned-parenthood-videos-expose-abortion-what-truly

Live Action News, July 30, 2015.  Referenced at:  http://liveactionnews.org/planned-parenthood-baby-parts-scandal-grows-as-new-tape-released

Abby Johnson on the Mike Huckabee Show –  https://www.youtube.com/watch?v=6Rx8hL4QSEs

The Planned Parenthood videos:

The first video – https://www.youtube.com/watch?v=jjxwVuozMnU

The second video –  https://www.youtube.com/watch?v=OGwV4NnJoCw

The third video –  https://www.youtube.com/watch?v=jugZUvs0-y8

The fourth video –  https://www.youtube.com/watch?v=GWQuZMvcFA8

The full-length video expose on Planned Parenthood –  https://www.youtube.com/watch?v=H4UjIM9B9KQ

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THE FEDERAL JUDICIARY HAS BECOME DANGEROUS & DESPOTIC: A CONSTITUTIONAL AMENDMENT PROPOSAL

SUPREME COURT - Judicial Supremacy

by Diane Rufino, July 11, 2015

US CONSTITUTION:  AMENDMENT PROPOSAL

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance (1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.

Diane - BLOG pic (Independence Mall) - BEST

INTRODUCTION:

There is one principle upon which the Supreme Court should most firmly stand united. It is explained, proclaimed, assured in Federalist #78: “There is no position which depends on clearer principles than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

The servant has indeed become more powerful than the master.

The reason the servant has become more powerful than its master is because the Supreme Court has expanded and re-defined the authority granted to the Congress and to the Executive in the US Constitution. And in order to do so, it first had to expand and re-define its own authority, which it did in 1803 – only 12 years after it heard its very first case (in 1791).

The first question we must ask is this:  What is a constitution?  A constitution is instrument by which authority for government is delegated from its natural depository. As the Declaration of Independence makes abundantly clear, the laws of Nature and God’s Law have established that man himself is vested with this authority. There is a natural order…  First there is man, then there are communities when men join together, and finally, there is government established by social compact whereby rules and laws are established so that men can live successfully among one another, enjoying security and without surrendering their essential rights and liberties (including property). Thomas Paine, in his publication Rights of Man (1791-92), wrote:  “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.”  In other words, government action needs legitimate authority and that authority must be spelled out so that people know at which point power is being abused.

Justice William Patterson explained in more detail the significance of a constitution in one of the Supreme Court’s earliest cases, Vanhorne’s Lessee v. Dorance (1795):  “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”   He continued:

“In England, the authority of the Parliament runs without limits, and rises above control. It is difficult to say what the constitution of England is; because, not being reduced to written certainty and precision, it lies entirely at the mercy of the Parliament: It bends to every governmental exigency; it varies and is blown about by every breeze of legislative humor or political caprice. Some of the judges in England have had the boldness to assert, that an act of Parliament, made against natural equity, is void; but this opinion contravenes the general position, that the validity of an act of Parliament cannot be drawn into question by the judicial department: It cannot be disputed, and must be obeyed. The power of Parliament is absolute and transcendent; it is omnipotent in the scale of political existence. Besides, in England there is no written constitution, no fundamental law, nothing visible, nothing real, nothing certain, by which a statute can be tested. In America the case is widely different: Every State in the Union has its constitution reduced to written exactitude and precision. What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it. The life-giving principle and the death-doing stroke must proceed from the same hand. What are Legislatures? Creatures of the Constitution; they owe their existence to the Constitution: they derive their powers from the Constitution: It is their commission; and, therefore, all their acts must be conformable to it, or else they will be void. The Constitution is the work or will of the People themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the Legislature in their derivative and subordinate capacity. The one is the work of the Creator, and the other of the Creature. The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move. In short, gentlemen, the Constitution is the sun of the political system, around which all Legislative, Executive and Judicial bodies must revolve. Whatever may be the case in other countries, yet in this there can be no doubt, that every act of the Legislature, repugnant to the Constitution, as absolutely void…..

      I hold it to be a position equally clear and found, that, in such case, it will be the duty of the Court to adhere to the Constitution, and to declare the act null and void. The Constitution is the basis of legislative authority; it lies at the foundation of all law, and is a rule and commission by which both Legislators and Judges are to proceed. It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

What makes the Constitution stable and permanent is the strict and consistent understanding of its terms and its intent.   James Madison, who is considered the author of the Constitution, advised: “If we were to look for the meaning of the instrument [Constitution] beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”

BACKGROUND:

In 1776, the 13 original British colonies in America sent delegates to a general congress, who there, for the colonies they represented, made the declaration “that these united colonies are, and of right ought to be, free and independent states.”  The permeating principle pronounced and proclaimed in the Declaration of Independence was that every people had the right to alter or abolish their government when it ceased to serve the ends for which it was instituted. Each State decided to exercise that right, and all of the thirteen united (with their representatives pledging their lives, their fortunes, and their sacred honor) to seek independence from Great Britain. A long war ensued. After a heavy sacrifice of life and treasure, the Treaty of Paris was negotiated in 1783, by which Great Britain recognized the independence of the States separately, not as one body politic, but severally, each one being named in the act of recognition.

In 1777, the delegates from each of the thirteen States, met once again in the general congress and agreed to “certain articles of confederation and perpetual union between the States.”  They agreed that the union formed would be a confederation of states. That no purpose existed to consolidate the States into one body politic is manifest from the terms of the second article, which was: “Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right which is not by this confederation expressly delegated to the United States in congress assembled.” The meaning of this article is quite plain.  Under the Articles, representation in the Congress of the Confederation was one vote per state, irrespective of population or the number of delegates in attendance, and the powers available were only those expressly delegated, with all others being reserved to the States separately. Under the Articles of Confederation, the War for Independence (Revolutionary War) was conducted.

On October 19, 1781, British General Charles Cornwallis surrendered his troops at the battle of Yorktown, Virginia, and the colonies were finally free!  It was not until September 3, 1783, with the signing of the Treaty of Paris, that the Revolutionary War came to its final conclusion.

In the face of the Declaration of Independence, and of the Articles of Confederation, and of the Treaty of Paris, it is clear that in 1783 each State was a sovereign, free, and independent community.

After the pressure and necessity of war was removed, it became clear that the “common government” – the Congress of the Confederation – was impracticable and ineffective to administer the general affairs of the Union; it would need to possess additional powers.  In 1786, 12 delegates from 5 states (NY, NJ, PA, DE, and VA) gathered at a tavern in Annapolis MD to discuss and develop a consensus about reversing the protectionist trade barriers that each state had erected. That was the limited purpose of the convention. Other states were supposed to attend but never made it in time.  (Under the Articles of Confederation, each state was largely independent from the others and the national government had no authority to regulate trade between and among the states).  Alexander Hamilton wrote the Convention’s final report and sent it to Congress. It explained that the delegates decided not to proceed on the business of their mission on account of such a deficient representation, but believed that there was an even more compelling reason to hold another convention. The delegates noted that the Articles possessed “important defects” and lacked enough power to be effective, and if the problems were not addressed, the perceived benefits of the confederation would be unfulfilled. As conveyed in the Report, the delegates to the Annapolis Convention decided that another conference, “with more enlarged powers” should be called and should meet in Philadelphia the following summer to “take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the constitution of the Federal Government adequate to the exigencies of the Union.”

And so, the following year, May 1787, delegates from 12 of the 13 states (Rhode Island refused to send delegates), met in Philadelphia for the specific purpose of amending the Articles of Confederation.  They ended up proposing a new form of government (thanks to the dubious scheming and planning by James Madison).  The newly-drafted Constitution for the United States, a voluntary compact, was to be submitted to the States, and, if ratified by 9 of them, would go into effect as between the States so ratifying it.  As it turned out, 11 states ratified and the Constitution became effective in 1788 (with Washington being chosen unanimously by the electoral college to be the first president and the first Congress meeting in March 1789).  North Carolina finally joined the Union (ratified the Constitution) in 1789 after a Bill of Rights was proposed by James Madison in Congress and Rhode Island joined in 1790.  The old union under the Articles was replaced by “a more perfect” union under the US Constitution.

The Union was made “more perfect” because the general government thus created, would be more effective to provide certain common services for all the states. Each state, in adopting the Constitution, contended, believed, and certainly articulated that the general government was one of specifically enumerated powers only and that they reserved the residuary of sovereign powers for themselves, as individual states.

So fearful and apprehensive were the states that the common government would usurp sovereign state powers and attempt to enlarge its powers that they took several steps:

1). They designed a bicameral legislative body that included a body that directly represented the States’ interests.  Before the 17th Amendment was adopted, US Senators were selected by the state legislatures, including on a rotating basis if need be, specifically to provide a check on legislation that burdened states’ sovereign interests or exceeded constitutional authority.  The intent was to include an express federal element to the government structure and to provide an additional and critical Check and Balance on government. The sovereign states would jealously guard their sphere of power directly, at the source.

2). Two of the delegates to the Constitutional Convention (James Madison and Alexander Hamilton) went on to write a series of essays to explain and clarify the language and provisions of the Constitution to assure the states assembled in their state ratifying conventions that the document is one that creates a “common” government of very specified delegated powers.  These are the Federalist Papers, which to this day is the greatest authority on the meaning and spirit of the Constitution. The essays were explanations upon which the states relied in their decision to ratify, much the same way as parties to the purchase and sale of real property rely on contract terms and covenants when they agree to sign and be bound.

3). They conditioned their adoption of the Constitution on certain definitions and assumptions.

4). They demanded a Bill of Rights

5). They included “Resumptive Clauses”

6). The repeatedly referred to the Constitution as a “compact” between the states (the parties) to create a common government

7). They asserted their right of nullification and interposition (the refusal to acknowledge the legitimacy of a federal law passed by abuse any Constitutional power or as a result of usurping power from any State or the People themselves)

Alexander Hamilton wrote in Federalist No. 32:  “An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts; and whatever powers might remain in them, would be altogether dependent on the general will. But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, EXCLUSIVELY delegated to the United States.”

And James Madison wrote in Federalist No. 45:

      “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

      The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.

And again, Hamilton write in Federalist No. 78:  “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”

Even though such assurances were given, there were many who still did not trust that the Constitution could effectively check consolidation of power by the federal (common) government.  Such voices were particularly loud in the state ratifying conventions.  That is why several states either refused outright to ratify (such as North Carolina) or ratified only when promised that a Bill of Rights would be added. To emphasize exactly WHY the Bill of Rights was demanded by the states and why it was added, a preamble was included. The Preamble to the Bill of Rights reads: “Congress of the United States, in the City of New York, on March 4, 1789:  The Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added to extend public confidence in the Government to best ensure the beneficent ends of the institution.”  In other words, the first ten (10) amendments were demanded by the States as a condition to joining together in a new Union in order to FURTHER LIMIT the scope of government (should they not understand the limits in Articles I – III) and to REMIND and RESTATE for the purpose of the federal government (all 3 branches) that the government is predicated on federalism – the notion of the states being sovereign and vested with all reserved powers not expressly delegated under Article I, Section 8 (nor prohibited to them under Section 9).

Aside from the Preamble to the Bill of Rights which again was specifically written to explain the reason and intention of the first ten amendments, several states inserted RESUMPTIVE CLAUSES into the adoption texts when they   officially adopted the Constitution.

The RESUMPTIVE CLAUSES were intentionally inserted because of a distrust of the government that would be created under the Constitution. They were meant as express conditions on adoption and continued membership in a Union ruled by a common government.  These states included New York, Virginia, and Rhode Island.  (It is most likely that North Carolina would have included one as well but was given firm assurances that James Madison would draft and send a Bill of Rights to the States to include in the Constitution for their protection).

New York was the eleventh State to assent to the compact of union, and her ratification was particularly important because she was seen as a potential hold-out to the ratification of the Constitution. It was a state dominated by many influential anti-Federalists, including its governor. To make her ratification conditioned on the understanding that only specifically delegated powers were intended for the federal government and nothing more, her ratification text included a declaration of the principles on which her assent was given (ie, a “Resumptive Clause”), which the following language: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness; that every power, jurisdiction, and right which is not, by the said Constitution, clearly delegated to the Congress of the United States, or the departments of the government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same…”

Rhode Island’s clause read: “That the powers of government may be reassumed by the people whensoever it shall become necessary to their happiness.”  And Virginia’s clause read: “Having fully and freely investigated and discussed the proceedings of the federal Convention, and being prepared to decide thereon, do in the name and in behalf of the People of Virginia, declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”

Reassumption (resumption) is the correlative of delegation.

At the time the Constitution was written and then submitted to the States for ratification, most of the Founders – and most notably, most Virginians and New Yorkers – saw the Constitution as a compact.  Reference to this was made in several Federalist essays (No. 39, 43, 44, 49, for example), in many anti-Federalist essays (written to urge skepticism of the Constitution and which prompted the writing of the Federalist Papers), and in several of the state ratifying conventions.  [Dave Brenner documents the compact nature of the Constitution in detail in his book, Compact of the Republic].  In fact, the term was commonly used for at least 100 years after. [See the various articles of secession by the southern states in 1861 and commentary explaining federalism and states’ rights].

James Madison wrote: “There is one view of the subject which ought to have its influence on those who espouse doctrines which strike at the authoritative origin and efficacious operation of the Government of the United States. The Government of the U.S. like all Governments free in their principles, rests on compact; a compact, not between the Government and the parties who formed and live under it; but among the parties themselves, and the strongest of Governments are those in which the compacts were most fairly formed and most faithfully executed.”

In his Report of 1800 to the Virginia House of Delegates, expounding on the Virginia Resolutions which addressed constitutional violations with the Alien and Sedition Acts of 1798), James Madison explained: “The resolution declares, first, that ‘it views the powers of the federal government as resulting from the compact to which the states are parties;’ in other words, that the federal powers are derived from the Constitution; and that the Constitution is a compact to which the states are parties.  Clear as the position must seem, that the federal powers are derived from the Constitution, and from that alone, the committee are not unapprised of a late doctrine which opens another source of federal powers, not less extensive and important than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The committee satisfy themselves here with briefly remarking that, in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground that the powers not given to the government were withheld from it; and that, if any doubt could have existed on this subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the 12th amendment, now a part of the Constitution, which expressly declares, “that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

In 1798, in Supreme Court case Calder v. Bull, Justice Samuel Chase discussed the leading doctrines of American constitutional law with respect to states’ rights prior to the Civil War – the Doctrine of Vested Rights (the 10th Amendment) and the Doctrine of Police Powers.  He wrote: “The people of the United States erected their constitutions to establish justice, to promote the general welfare, to secure the blessings of liberty, and to protect persons and property from violence. The purposes for which men enter into society will determine the nature and term of the social compact; and as they are the foundation of legislative power, they will decide the proper objects of it. The nature and ends of legislative power will limit the exercise of it….  There are acts which the federal or state legislatures cannot do without exceeding their authority. There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority.  There are certain vital principles in our fee republican governments which will determine and overrule an apparent and flagrant abuse of legislative power…..  An act of the legislature (for I cannot call it a law) contrary to the great principles of the social compact cannot be considered a rightful exercise of legislative authority…”

In The Federalist Papers, James Madison addressed the question, ‘On what principle the confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?’ He answered: “By recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature’s God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed.”

As explained, constitutions speak to the very foundation of law. They provide the authority for a governing body.  Thomas Jefferson wrote: “Every law consistent with the Constitution will have been made in pursuance of the powers granted by it. Every usurpation or law repugnant to it will be null and void.”  And Chief Justice John Marshall explained: “All laws which are repugnant to the Constitution are null and void.” (Marbury v. Madison, 1803).  Authority is not without limits, otherwise a written constitution would not be necessary. And so there are boundaries. For a government to take a step beyond such boundary would result in a nullity. Nullification is a doctrine that derives not only from the “compact theory” of the Union, but derives from the very nature of constitutions in general.  Nullification essentially states that a law made without legitimate, delegated legal authority is null and void and is not enforceable (on a State or on the People). It is a remedy to prevent government overreach and abuse.  As an effective remedy, of course, the offending law must be identified and then affirmative efforts must be made to prevent its enforcement. Nullification flows from the nature of the Constitution and as such it fundamental and foundational.  It flows from the fact that the Constitution is a compact….  an agreement by parties (the States) to be bound in a union and thereby abiding by the responsibilities (burdens, including the burden of delegating some of its sovereign powers) while benefitting by its service.

As the leading authority on Nullification, Thomas Woods, explains: “The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose.”

Thomas Jefferson and James Madison were the Founders (are most influential, to be sure) who articulated Nullification most clearly.

In the Kentucky Resolutions of 1798, Jefferson wrote:

  1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

The point is that the Constitution created a common government of limited delegated powers.  The delegation of sovereign powers had to come from somewhere, and because of the declaration of liberty proclaimed in our founding document, the Declaration of Independence, we know those powers came from the States, and the People themselves. Any delegation of sovereign individual rights is always temporary in nature and any delegation of state powers is temporary as well.  Any assumption of powers not expressly delegated to government remains with the States and People, and every time any branch of government exceeds its delegated powers, it usurps them from the rightful depositories.  The States and our Founders took every possible opportunity to ensure that the government would remain limited in size and scope.  Their goal, their vision was to use the power of the states to limit the power of the federal government. It was the unique design feature that would ensure the greatest degree of freedom and bring to life the promises in the Declaration of Independence.

THESE are the principles upon which the general government was created.  This was the common understanding of the states in forming the Union.

Supremacy Clause (cartoon - States saluting Constiution)

DISCUSSION:

As predicted and despite the numerous warnings, by such esteemed intellects as Patrick Henry, Thomas Jefferson, and George Mason (to name a few), members of the federal government have attempted, and have almost always succeeded, in concentrating power in all three branches.  They have weakened the status of the states at every turn. It began, unfortunately, when the very father of our nation, George Washington, supported the very proposition rejected at the Philadelphia Convention and in the ratifying conventions — that the Constitution is not only one of expressly enumerated powers but one of “implied” powers as well (thus enlarging at the time the federal taxing power). And then came the devastating decision by the Supreme Court in 1803 in Marbury v. Madison which proclaimed, without any provision in the Constitution as support, that its decisions on constitutional matters are binding upon the other branches of government, on the States, and on the People.

The monopoly that we see today by the federal government over the meaning and intent of the Constitution, as well as the scope of its powers, was clearly beginning to take shape in 1803.

The Civil War was an unfortunate time in our history.  While the creation of the first National Bank (1791) and then the passing of the Alien and Sedition Acts (1798) posed the scenarios of what would happen if the federal government attempted to usurp or re-define its powers and what would happen if the government passed laws violative of the Constitution, the Civil War showed us what would happen if the government refused to respect its status under the Declaration of Independence and instead decided to seek its own self-preservation rather than protect the rights of the parties which created it as the agent. In other words, the Civil War presented the case of a rogue government.  Yet, at the end of the Civil War, the Constitution essentially remained unchanged except for the addition of the Reconstruction era amendments – the 13th, 14th, and 15th amendments.  The balance of power between the States and the federal government, as embodied in the Constitution, remained intact. It was only when the Supreme Court decided to re-interpret and twist and mold the 14th amendment that federalism was significantly eroded.

But then the coup de grace….  the passage of the 17th amendment.

The 17th amendment was added to the Constitution, making Senators elected and accountable only to the people. As we all know, because of the transient nature of habitation – the ability of people to move freely from state to state – as well as the overwhelming influence of immigration, the interests and concerns of the people are most often not the interests and concerns of the state as a sovereign unit. Now Senators cannot be removed for bad voting behavior for six years and have an incredible opportunity and incentive to become not only rogue representatives but to become agents of the government rather than agents of the people.

With the passage of the 17th amendment, the monopoly was firmly established.

And from that point on, the federal government has grown by leaps and bounds, mostly at the hands of a few cloaked individuals.  The turn of the century (1900) saw the rise of the omnipotent and omniscient Supreme Court.  For that, we have Chief Justice John Marshall to thank, with his decision in the landmark case of Marbury v. Madison, as mentioned above.  Thomas Jefferson was president at the time and wrote to Abagail Adams to comment: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

Dave Brenner discusses the Marbury decision excellently in his book Compact of the Republic.  Of course, the “compact” is the Constitution itself.  In the book, Brenner writes: “John Marshall’s Supreme Court became the very representation of what the anti-Federalists feared the most – a judiciary that overstepped its own authority and ruled on state law.  Through sweeping court decisions, the Marshall Court carved out the foundations for how the Supreme Court would be perceived more than 200 years later: as a powerful, decisive oligarchy that overturned state law and bound the states to its opinions.”

The book continues:

One of the last actions of the John Adams administration was to pass the Judiciary Act of 1801. This act would become known by Adams’ political opponents as the ‘midnight appointments’ because Adams literally worked feverishly to write and sign the commissions in the last days of his presidency.  Adams hoped to methodically extend the power of the Federalists by appointing relatively large groups of (Federalist) civil officers that would serve for life. One of the commissions was written for William Marbury, an avowed Federalist who Adams wished to make Justice of the Peace for the District of Columbia. 

      The Senate confirmed the appointment of Marbury and many of the other judges. It remains clear that Jefferson, as the newly-inaugurated president, instructed James Madison, the new Secretary of State, not to deliver the remaining commissions to the ‘midnight judges.’  The Constitution did not require him to grant commissions to judges he did not appoint, and it was clear that he did not wish to extend the Federalist judiciary.  After the incredibly contentious 1800 presidential election, Jefferson clearly viewed that contest as a referendum on Federalist rule….

As a result, Marbury brought suit, seeking as his relief a writ of mandamus, an order by the court requiring Jefferson to deliver his commission and thereby allowing him to take his position.

Writing the decision, Chief Justice Marshall held that part of the Judiciary Act – the part that gave rise to Marbury’s commission – was unconstitutional, and therefore he was not entitled to the relief he sought. It would be the first time the US Supreme Court declared an act of Congress to be unconstitutional. The analysis should have ended right there. But Marshall went further. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”  The decision concluded by saying that “a law repugnant to the Constitution is void, and courts, as well as other departments, are bound by that instrument.” It was the first time a federal court proclaimed judicial supremacy. It was the first time a federal court proclaimed that federal courts have the final say on what the Constitution means.  In other words, this decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and once it has rendered its opinion, all the other branches, the States and the people are to bound by that decision. As the Supreme Court likes to remind everyone: “This principle has ever since been respected by this Court and the County as a permanent and indispensable feature of our constitutional system.”  (Cooper v. Aaron, 1958)

Marbury’s declaration of judicial supremacy ignores the opinion in Vanhorne’s Lessee v. Dorance (1795).  [See above].

It is interesting to note that the Supreme Court would not declare another act of Congress unconstitutional until 1957, when it struck down the Missouri Compromise in Dred Scott v. Sanford].  From that point until June of this year, 2016, the high court has only declared approximately 174 acts of the US Congress (whether in whole or in part) to be unconstitutional, which would amount to about 1 statute per year].

Up until this case, most Founding Fathers and many legal scholars understood that the role of the judiciary was to “render” or “offer” an opinion, to be considered by the other branches.  Indeed, when ratifying the Constitution, the understanding was that the Supreme Court would not have a monopoly over its meaning and interpretation.  Alexander Hamilton assured the state delegations in Federalist No. 78:  “Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution because it will be least in a capacity to annoy or injure them….    “The Judicial Branch may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

In Federalist No. 49, Hamilton wrote: “As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments on the chartered authorities of the others. The several departments being perfectly co-ordinate by the terms of their common commission, none of them, it is evident, can pretend to an exclusive or superior right of settling the boundaries between their respective powers; and how are the encroachments of the stronger to be prevented, or the wrongs of the weaker to be redressed, without an appeal to the people themselves, who, as the grantors of the commissions, can alone declare its true meaning, and enforce its observance?”

Again, in Vanhorne’s Lessee v. Dorance, Justice Patterson emphasized: “It is an important principle, which, in the discussion of questions of the present kind, ought never to be lost sight of, that the Judiciary in this country is not a subordinate, but a co-ordinate, branch of the government.”

Without authoritative language in Article III of the Constitution, it was believed that all three branches of the federal government would interpret the Constitution, and check usurpations of power by the other branches. Additionally, some believed that state courts would have the right to determine constitutionality as well.  Article III, Section 1 reads: “The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.”  Section 2 lists the types of cases that the courts can hear, including the Supreme Court, and whether those cases have original or appellate jurisdiction).

Indeed, the Constitution does not speak to judicial supremacy, and no one claimed that the federal courts would have a monopoly on determining the constitutionality of all government action.

What the Constitution DOES speak to is Separation of Powers and Checks and Balances.  The officials of two branches are elected by the People. If they are unpopular, the People can use their power at the ballot box. We can see where the Legislative and the Executive can check each other (although clearly, the Legislative branch was vested with the most power; Congress is the People’s house). But nothing makes sense about having a third branch, NOT elected by the people but appointed solely on political and social ideology for a term that doesn’t expire, that is supreme to the others.  What makes sense is that a branch that is not accountable to the people was intended to be exactly what Alexander Hamilton said it would be — the least dangerous branch.

James Madison, the author himself of the Constitution, asked: “I beg to know upon what principle it can be contended that any one department draws from the Constitution greater powers than another in marking out the limits of the powers of the several departments.”   Furthermore, he wrote: “Nothing has yet been offered to invalidate the doctrine that the meaning of the Constitution may as well be ascertained by the Legislative as by the judicial authority.”  Thomas Jefferson was of the same opinion. He wrote: “Each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action.”

These great men recognized the threat to government balance should the view be otherwise.  “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper,” wrote Madison.  Jefferson wrote: “The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves, in their own sphere of action, but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”

In 1820, after witnessing the ready willingness of men once infatuated with the simple language of Constitution and the limited nature of the government, to alter their positions once they sat in a position of power on the Supreme Court, Thomas Jefferson wrote:  “To consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps.”

More than any other branch of government, the US Supreme Court in particular has undermined and destroyed America’s onetime democratic republic. It has chiseled away and eroded the protections promised and pledged to each American by the Declaration of Independence and the boundaries of government established by the US Constitution adopted by the states in their ratification conventions during the years 1787- 1791.  The justices to the Supreme Court are appointed by the President (approved by the Senate, and are rarely denied, except when they are “Borked”), and enjoy permanent tenure with a fixed income for life. They are selected according to ideology only, in the supreme attempt by a president to determine “policy” from the bench. That is, they want the Court to interpret the Constitution in the most liberal manner possible (according to the “Living Document” approach, which means that the Constitution means whatever they decide it means) or according to the letter and spirit under which it was adopted.  It matters not to those who wish a very liberal reading of the Constitution that there is a legitimate way to alter its meaning and interpretation – and that is according to Article V – the “amendment process.”

Speaking about the “human” nature of justices which can cloud their decisions, one often hears someone comment that President Obama “must have something very damaging on Chief Justice John Roberts” to explain why he would have written two very constitutionally tortuous decisions on the healthcare bill in order to save it for the federal government. Judge Andrew Napolitano opined publically that Roberts used tyrannical power to find ways to save Obamacare.  He said the Court “violated every grant of authority and ignored every historical and reliable treatise on the role and limitations of the Court as a branch of government, including those written by the very men who wrote and ratified the Constitution.”  The justices that look to the actual (intended) meaning and spirit of the Constitution (the “strict-constructionists) wrote dissenting opinions and essentially agree with Judge Napolitano.  Justice Scalia offered the most scathing dissent and in fact ended by simply saying “I dissent” rather than the usual “I respectfully dissent.”  Scalia accused the majority of disregarding the plain meaning of words and re-defining terms and called the decision “pure applesauce.”  He accused his colleagues of doing “somersaults of statutory interpretation” and wrote: Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”  When he wrote “We should start calling this law SCOTUScare,” he was sarcastically hinting that the statute owes its existence more to the Supreme Court than to Congress.

A few weeks ago (June 26, 2015), in Obergefell v. Hodges, the Supreme Court held that the right to marry is a fundamental right inherent in the liberty of the person, and therefore protected under the Due Process and Equal Protection Clauses of the 14th Amendment, and accordingly couples of the same-sex may not be deprived of that right and that liberty. Journalist Frank Turek explained why the decision rests on a fatal flaw. Back in March, he penned an article (in anticipation of the case) and wrote: “The Supreme Court is about to decide if the 14th amendment to the United States Constitution requires the states to redefine marriage to include same sex relationships. There are several reasons why the answer is no. The most decisive of these reasons is the fact that when the 14th amendment was passed in 1868, homosexual behavior was a felony in every state in the union … If the people of the United States have ‘evolved’ on the issue, then the Constitution provides them with a very clear and fair way for the document to intelligently ‘evolve’….  They need to convince a supermajority of federal and state legislatures to amend the Constitution. That’s the very reason our Constitution has an amendment process!  If we fail to use the amendment process and permit judges to substitute their own definitions and judgments for what the people actually meant when they passed the law in the first place, then we no longer govern ourselves. Why vote or use the political process if unelected justices strike down our laws and impose their own as they go? … It’s a pretext that allows judges to invent rights and impose any moral (or immoral) position they want against the will of the people.”  Liberty interests are those enshrined in the Bill of Rights. The Bill of Rights were included in the Constitution to make sure that the federal government (only) would never violate them. The ‘incorporation doctrine’ is the legal doctrine by which the Bill of Rights, either in full or in part, is applied to the states through the 14th amendment’s Due Process clause. But the Supreme Court, even up until the 1960s, has held that not all the interests outlined in the Bill of Rights are to be incorporated. The only sections of the Bill of Rights that federal courts should apply against state action, according to the Court, are those that have been “historically fundamental to our nation’s scheme of ordered liberty.”  When a federal court reviews a case claiming an asserted right is one protected under “substantive due process” (due process involving “liberty interests”), the court usually looks first to see if there is a fundamental right by examining “if the right can be found deeply rooted in American history and traditions.”  Because the incorporation test includes the clarifiers “historically” or “deeply rooted in American history and traditions,” in making its determination, the Court must look back to the era in our country’s history beginning from our founding up until the adoption of the 14th amendment – or it SHOULD.  Just as not all proposed “new” constitutional rights are afforded judicial recognition, not all provisions of the Bill of Rights have been deemed sufficiently fundamental to warrant enforcement against the states.  Although the Supreme Court has stated in prior decisions (see Loving v. Virginia) that marriage is a fundamental right, the historical perspective is that marriage is between heterosexual couples. The idea of a “fundamental right to marry” invites controversy.  The notion of a “fundamental right” implies firm privileges which the state cannot deny, define, or disrespect unless it finds that the challenged law was passed to further a “compelling governmental interest,” and must have narrowly tailored the law to achieve that interest (ie, the “strict scrutiny” test).  But marriage rules (who can marry, health records required, what formalities are required for marriage, the legal ramifications of marriage, etc) in the United States have always been subject to almost complete state control (pursuant to its traditional police powers).  As the dissent points out: “Removing racial barriers to marriage (Loving v. Virginia) did not change what a marriage was any more than integrating schools changed what a school was. As the majority admits, the institution of “marriage” discussed in every one of these cases ‘presumed a relationship  involving opposite-sex partners.’  In short, the “right to marry” cases stand for the important but limited proposition that particular restrictions on access to marriage, as traditionally defined, violate due process. These precedents say nothing at all about a right to make a State change its definition of marriage, which is the right petitioners actually seek here. What petitioners seek is not the protection of a deeply-rooted right but the recognition of a very new right.”   Re-definition of marriage is something society decides as a whole, through the legislature.  It is not the role of a court. “This Court is not a legislature. Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise ‘neither force nor will but merely judgment.’”  Another dissenting opinion states: “The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance. Those civil consequences—and the public approval that conferring the name of marriage evidences—can perhaps have adverse social effects, but no more adverse than the effects of many other controversial laws. So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court.”

On June 26, the day the ruling was released, Texas Governor Greg Abbott issued a scathing criticism: “The Supreme Court has abandoned its role as an impartial judicial arbiter and has become an unelected nine-member legislature. Five Justices on the Supreme Court have imposed on the entire country their personal views on an issue that the Constitution and the Court’s previous decisions reserve to the people of the States.”

Thomas Paine wrote:  “A constitution defines and limits the powers of the government it creates. It therefore follows, as a natural and also a logical result, that the governmental exercise of any power not authorized by the constitution is an assumed power, and therefore illegal.”  The Supreme Court, while improperly assuming the power to decide what powers the states have and what they don’t have and thereby shuffling power from the states to the federal government, has ushered in an era of a technically illegal government.

With respect to the federal judiciary, Thomas Jefferson wrote: “This member of the Government was at first considered as the most harmless and helpless of all its organs. But it has proved that the power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution, can do what open force would not dare to attempt.”

Furthermore, he wrote: “The Constitution on this hypothesis is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  (in a letter to Spencer Roane, 1819)

Similarly, he wrote: “The judiciary of the United States is a subtle core of sappers and miners constantly working underground to undermine the foundations of our confederated fabric. They are construing our constitution from a coordination of a general and special government to a general and supreme one alone. The opinions are often delivered by a majority of one, by a crafty Chief Judge who sophisticates the law to his mind by the turn of his own reasoning.”   (in a letter to Thomas Ritchie, December 1820)

And again, he commented: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”    (in a letter to Charles Hammond, August 18, 1821)

Joseph Story, in his Commentaries on the Constitution (1833), wrote: “The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” 

US Rep. Joseph Nicholson (1770-1817) warned:  “By what authority are the judges to be raised above the law and above the Constitution? Where is the charter which places the sovereignty of this country in their hands? Give them the powers and the independence now contended for and they will require nothing more, for your government becomes a despotism and they become your rulers. They are to decide upon the lives, the liberties, and the property of your citizens; they have an absolute veto upon your laws by declaring them null and void at pleasure; they are to introduce at will the laws of a foreign country, differing essentially with us upon the great principles of government; and after being clothed with this arbitrary power, they are beyond the control of the nation, as they are not to be affected by any laws which the people by their representatives can pass. If all this be true – if this doctrine be established in the extent which is now contended for – the Constitution is not worth the time we are now spending on it. It is, as its enemies have called it, mere parchment. For these judges, thus rendered omnipotent, may overleap the Constitution and trample on your laws; they may laugh the legislature to scorn and set the nation at defiance.”

If the federal government acts outside the scope of its delegated and carefully enumerated powers, and has sanction by the Supreme Court, then it’s no better than an armed mob.  While a mob has the power of organized civil unrest and perhaps violence to coerce and strip others of rights and liberty, the government assumes a power of law to coerce and deprive.

By design, the separation of functions into separate branches (Separation of powers) and the system of checks and balances that our Founding Fathers provided has always been intended to act as a safeguard against the federal government’s potential tyranny and oppression. The history of the Supreme Court shows how, almost immediately, it began to enlarge certain clauses in the Constitution – the Necessary and Proper Clause, the Commerce Clause, and the General Welfare Clause. Patrick Henry called these “sweeping clauses” because he felt they might ultimately be used by the federal government to sweep authority away from the states.  And he was right. Not only has the Court interpreted the clauses as positive grants of power to Congress but it has also interpreted them as limitations on the States to regulate internally, for their own interests and for their citizens. The Commerce Clause, for example, has been interpreted broadly to give the government extreme powers to regulate commerce, both interstate and intrastate.  It has also been interpreted to prevent states from regulating commerce within their borders and also to prevent individual farmers, for example, from growing too much wheat on his property for fear that he may consume that which he grows and thus not engage in commerce (thus affecting commerce!)  The General Welfare clause has become an independent grant of power to Congress rather than as a statement of purpose qualifying the power to tax.

On July 9, 1868, during the Reconstruction era – the era when the US Congress radically transformed the southern states – the 14th amendment was added to the Constitution. As the nation entered the 20th century, not only did the Supreme Court have the “sweeping” or “elastic” clauses, but all of a sudden, it had this brand new tool in its arsenal to sap power from the States.  Beginning in 1925, it began to incorporate the Bill of Rights as prohibitions against the States, through the Due Process clause of the 14th amendment. In this first case, Gitlow v. New York, the 1st amendment’s Guarantee of Free Speech was applied to the states.  Through the “Incorporation Doctrine,” the Court has held if the federal government cannot burden the rights recognized in those amendments, the states may not either. And so the trend continued, particularly in the second half of the 20th century and now into the 21st century. By turning again and again to the 14th amendment, the Supreme Court has overturned state laws restricting the rights of speakers (and most recently, allowed states to censor speech), has struck down state laws permitting prayer in public schools, has forced states to remove Christian symbols from public property and forced them to censor prayer before state and local meetings, has forced them dismiss gender identify in marriage laws and required them to redefine marriage, has forced them to forcibly integrate schools and now to forcibly integrate neighborhoods, and has overturned state laws restricting the rights of criminal defendants, private property owners, gun owners, members of racial and ethnic minorities, and others.  In short, the Supreme Court has used its unchecked power at the bench to use whatever authority or non-authority it wishes in order to neuter the states, recreate the United States as a boundary-less, one-size-fits-all nation, cookie-cutter type nation, and usher in sweeping social change.  Typically today, as we have seen year after year, cases that pit the rights of states against the power of the federal government are usually decided by a closely-divided Supreme Court, with Justice Anthony Kennedy acting as the swing voter. It’s hard to imagine that a mere difference in opinion, represented by a 5-4 majority, can abolish traditional norms and dismantle historic institutions, and thus change the entire social landscape of a nation.

At one point, the clear meaning of the Bill of Rights was recognized, as stated in its Preamble: “The Conventions of a number of the states, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added, in order to extend the ground of public confidence in the Government and will best ensure the beneficent ends of its institution.”  The Bill of Rights was clearly intended as a set of limitations on the powers of the federal government.

This point was emphasized by the Marshall Court in 1822.  In the case Barron v. Baltimore, a profitable businessman suffered losses due to the buildup of sand in the Baltimore Harbor and particularly in the area of his wharf, denying him the deep waters he needed.  He then sued the city for the losses caused by the sand-build up.  In the decision, Chief Justice Marshall found that the limitations on government articulated in the 5th amendment were specifically intended to limit the powers of the national government. Citing the intent of the framers and the development of the Bill of Rights as an exclusive check on the government in Washington D.C., Marshall argued that the Supreme Court had no jurisdiction in this case since the 5th amendment was not applicable to the states.  The decision read:

      “Had the framers of the Bill of Rights intended them to be limitations on the powers of the State governments, they would have imitated the framers of the original Constitution and have expressed that intention. Had Congress engaged in the extraordinary occupation of improving the Constitutions of the several States by affording the people additional protections from the exercise of power by their own governments in matters which concerned themselves alone, they would have declared this purpose in plain and intelligible language.”

The Bill of Rights was NEVER intended to be applicable to the States. If that was even a consideration at the time that the States were debating whether to adopt the Constitution, they never would have done so.

Despite the efforts by the Supreme Court to twist constitutional jurisprudence, the 14th amendment was not intended to make the Bill of Rights applicable to the states.  It was an amendment passed in 1868 in somewhat conjunction with the 13th amendment in order to make sure that the civil rights of the newly-freed blacks would not be infringed.  Under the original Constitution, citizens of the United States were required to be first a citizen of some State, which is something that blacks could not claim (thanks to the Dred Scott decision).  This is why it was imperative for the first section to begin with a definition of citizenship so that no State could refuse recognition of newly freed slaves as U.S. citizens and thereby leaving them with less protection and remedies under State laws of justice compared with a white citizen. The goal and function of the 14th amendment’s first section was to give legal validity to the Civil Rights Bill of 1866. The goal of both the Civil Rights Act and then the amendment was to put an end to criminal black codes established under former rebel States that at the time were being administered under policies of President Andrew Johnson.  The author of the language of the 14th amendment, Rep. John Bingham of Ohio admitted that he borrowed the language for both the Due Process and Equal Protection clauses from Chapters 39 and 40 of the Magna Charta.  He further explained:

(a)  That the privileges and immunities of citizens of the United States refer only to those privileges and immunities embraced in the original text of the Constitution, Article IV, Section II.  [See House Report No. 22, authored by Rep. Bingham on January 30, 1871]

(b)  That “citizens of the United States, and citizens of the States, as employed under the 14th amendment, did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”

As Alan Mendenhall writes that any debate over the 14th amendment must address the validity of its enactment. “During Reconstruction, ratification of the amendment became a precondition for the re-admittance of former Confederate states into the Union.  [This has been termed] ‘ratification at the point of the bayonet’” because in order to end the military rule imposed by the victorious North during Reconstruction and in order to be allowed to have representatives in Congress, the southern states were required to ratify the 14th amendment. “The conditional nature of this reunification belies the claim that the Fourteenth Amendment was ratified by any mutual compact of the states.”  For this reason, and for many others that are legally, ideologically, and constitutionally sound, it should be emphasized that many learned constitutional scholars are convinced that the 14th amendment was never constitutionally – legitimately – adopted.

Just a few years after the (questionable) adoption of the 14th amendment, in 1873, the Supreme Court heard its first case addressing it, The Slaughterhouse Cases.  The cases were a consolidation of three suits challenging a Louisiana law that established the Crescent City Live-Stock Landing and Slaughtering Company and required that all butchering of animals in New Orleans be done in its facilities. The Louisiana law was enacted for health concerns; it wanted to control animal blood that was seeping into the water system.  The law seriously interfered with the businesses of individual butchers who were accustomed to slaughtering animals on their own property.  It not only required them to do their butchering away from the city at the facilities of the Crescent City Livestock Company, but also to pay a fee for doing so. The law essentially created a monopoly. Justice Samuel F. Miller, joined by four other justices, held that the 14th amendment protected the privileges and immunities of national and NOT of state citizenship. The case involved state regulations of slaughterhouses to address the health emergencies resulting from animal blood that was seeping into the water supply. In the opinion, Justice Miller wrote that the 14th amendment was designed to address racial discrimination against former slaves rather than the regulation of butchers:

      “The first section of the fourteenth article, to which our attention is more specially invited, opens with a definition of citizenship — not only citizenship of the United States, but citizenship of the States. No such definition was previously found in the Constitution . . . . But it had been held by this court, in the celebrated Dred Scott case, only a few years before the outbreak of the civil war, that a man of African descent, whether a slave or not, was not and could not be a citizen of a State or of the United States. This decision, while it met the condemnation of some of the ablest statesmen and constitutional lawyers of the country, had never been overruled.  To remove this difficulty primarily, and to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State, the first clause of the first section was framed.  That its main purpose was to establish the citizenship of the negro can admit of no doubt.

       The next observation is more important in view of the arguments of counsel in the present case. It is, that the distinction between citizenship of the United States and citizenship of a State is clear recognized and established.  We think this distinction and its explicit recognition in this amendment of great weight in this argument, because the next paragraph of this same section, which is the one mainly relied on by the plaintiffs. . . speaks only of privileges and immunities of citizens of the United States, and does not speak of those of citizens of the several States.

      Was it the purpose of the fourteenth amendment, by the simple declaration that no State should make or enforce any law which shall abridge the privileges and immunities of citizens of the United States, to transfer the security and protection of all the civil rights which we have mentioned, from the States to the Federal government? And where it is declared that Congress shall have the power to enforce that article, was it intended to bring within the power of Congress the entire domain of civil rights heretofore belonging exclusively to the States?  All this and more must follow, if the proposition of the plaintiffs in error be sound. For not only are these rights subject to the control of Congress whenever in its discretion any of them are supposed to be abridged by State legislation, but that body may also pass laws in advance, limiting and restricting the exercise of legislative power by the States, in their most ordinary and usual functions, as in its judgment it may think proper on all such subjects. And still further, such a construction followed by the reversal of the judgments of the Supreme Court of Louisiana in these cases, would constitute this court a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with those rights, as they existed at the time of the adoption of this amendment. The argument we admit is not always the most conclusive which is drawn from the consequences urged against the adoption of a particular construction of an instrument. But when, as in the case before us, these consequences are so serious, so far-reaching and pervading, so great a departure from the structure and spirit of our institutions; when the effect is to fetter and degrade the State governments by subjecting them to the control of Congress, in the exercise of powers heretofore universally conceded to them of the most ordinary and fundamental character; when in fact it radically changes the whole theory of the relations of the State and Federal governments to each other and of both these governments to the people; the argument has a force that is irresistible, in the absence of language which expresses such a purpose too clearly to admit of doubt.

       We are convinced that no such results were intended by the Congress which proposed these amendments, nor by the legislatures of the States which ratified them.

      The war (the Civil War) being over, those who had succeeded in re-establishing the authority of the Federal government were not content to permit this great act of emancipation to rest on the actual results of the contest or the proclamation of the Executive [the Emancipation Proclamation], both of which might have been questioned in after times, and they determined to place this main and most valuable result in the Constitution of the restored union as one of its fundamental articles.’

In other words, Justice Miller’s point is that the meaning and purpose of the 14th amendment is to negate the Dred Scott decision, legally establish citizenship rights to freed slaves and to ensure the privileges and immunities of national citizenship (as provided in Article IV, Section 2 of the US Constitution].  For example, as Miller explains, “the 15th amendment declares that ‘the right of a citizen of the United States to vote shall not be denied or abridged by any State on account of race, color, or previous condition of servitude.’ The negro having, by the 14th amendment, been declared to be a citizen of the United States, is thus made a voter in every State of the Union.”  The 14th amendment does nothing to alter the relationship between the federal government and state governments, nor does it remove any sovereign state power that existed prior to the amendment.

Clearly, Justice Miller did not believe the federal government was entitled under the Constitution to interfere with authority that had always been conceded to state and local governments.

To be clear that the amendment did not include or intend the “incorporation doctrine,” another proposed amendment during the same era can confirm this.  In December 1875, Senator James Blaine of Maine (rhymes) proposed a joint resolution that would “incorporate” the 1st amendment’s guarantee of religious freedom as a limitation on the States.  It read: “

      “No State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect; nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

The amendment would become known as the Blaine Amendment. The effect was to prohibit the use of any public funds (federal or state) for any religious school. The bill passed the House but failed in the Senate. This amendment is significant (but ignored by the Supreme Court) because of this implication:  If the 14th amendment was already understood to apply the Bill of Rights against the States, then why would such an amendment even need to be proposed.  Furthermore, it was struck down by the Senate, particularly because it was seen as an improper effort to keep schools free from religion and also because it was seen as targeted religious persecution. The mid-1800s saw a great influx of Catholics into the country. They soon began establishing their own schools, where Catholic children could recite their own prayers and read from their own version of the Bible. The creation of these schools made many Protestants worry about whether the government would start funding Catholic schools and so the Blaine Amendment arose from this concern about the “Catholicization” of American education.

SUPREME COURT - government v. states

As explained above, prior to the 1890s, the Bill of Rights was held only to apply to the federal government, which was a principle solidified even further by the Supreme Court’s decision in 1922 in the case Prudential Insurance Company of America v. Cheek.  The case concerned the state of New York’s ability to restrict freedom of speech.  The decision read: “As we have stated, neither the 14th amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about ‘freedom of speech’ or the ‘liberty of silence’; nor, we may add, does it confer any right of privacy upon either persons or corporations.”

In 1930, in the case Baldwin v. Missouri, the Supreme Court found that an inheritance tax imposed on intangible property (bonds and promissory notes) to property in Missouri held by a dying woman in Illinois violated the due process clause of the 14th amendment. Justice Oliver Wendell Holmes, a realist, was becoming worried that the Supreme Court was overstepping its boundaries with respect to the 14th amendment and scolded his fellow bench members in what would be one of his last dissents:

       “I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the 14th amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. Yet I can think of no narrower reason that seems to me to justify the present and the earlier decisions to which I have referred. Of course the words due process of law, if taken in their literal meaning, have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the 14th amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the States may pass.

Originalists (those who interpret the Constitution according to the original meaning and intent) and non-originalists alike have been skeptical over the years of the Court’s 14th Amendment substantive due process jurisprudence.  2 of the 3 current “originalist” members of the Supreme Court, Justice Antonin Scalia and Justice Clarence Thomas, reject the substantive due process doctrine, and Supreme Court Justice Antonin Scalia has called it a “judicial usurpation” and an “oxymoron.” [See Chicago v. Morales, 1999  and U.S. v. Carlton, 1994]   Many non-originalists, like Justice Byron White, have also been critical of substantive due process. As he made obvious in his dissents in Moore v. East Cleveland and in Roe v. Wade, as well as his majority opinion in Bowers v. Hardwick (the first Supreme Court sodomy case), he argued that the doctrine of substantive due process gives the judiciary too much power over the governance of the nation and takes away such power from the elected branches of government. He argued that the fact that the Court has created new substantive rights in the past should not lead it to “repeat the process at will.”  He further wrote that guaranteeing a right to sodomy would be the product of “judge-made constitutional law” and would send the Court down the road of illegitimacy.  While originalists generally do not support substantive due process rights, they do not necessarily oppose protection of the rights.  Rather, they believe in the paths that have been traditionally, and constitutionally, provided – through legislation and through the amendment process.

Yet despite the legislative history surrounding the amendment and established jurisprudence regarding the limited reach of the “Privileges and Immunities Clause” in the Slaughterhouse Cases, the Supreme Court would later turn to the Due Process and the Equal Protection clauses to strike down state laws.  As mentioned earlier, incorporation of the Bill of Rights into state law began with the case Gitlow v. New York (1925), in which the Supreme Court upheld that states must respect freedom of speech. By the last half of the 20th century, nearly all of the first 8 amendments were found to be incorporated into state law through the 14th amendment. (All except the 3rd amendment, and certain parts of the 5th, 7th, and 8th). The 9th and 10th amendments apply expressly to the federal government, and so have not been incorporated.  Despite its narrowly-intentioned purpose, the 14th amendment is cited in US litigation more than any other amendment.

The use of the 14th amendment as a sword against the States has blurred state boundaries and has all but reduced the state governments to looking after its day-to-day responsibilities. In most cases, the governments have become enforcement arms of the federal government.  What the government can’t do legislatively, judicially, or through executive action, it can accomplish through federal grants and funding (“money with strings”).

Again, the federal government is supposed to legislate only pursuant to the express powers delegated in the Constitution and for the express objects listed in Article I, Section 8.  The 10th amendment emphatically states that all remaining (reserved) sovereign powers remain with each State.  The definition of a “sovereign” includes the understanding that it has a fundamental, unquestioned right to make all necessary laws for those in its jurisdiction, as well as for its self-preservation and self-defense.  Our government system is based on the notion of Dual Sovereignty.  That is enshrined in the 10th amendment.  The federal government is sovereign when it comes to those objects that the States delegated to it under the Constitution and the states are sovereign when it comes to everything else.  In other words, when it comes to legislation and policy, the States have broad power within their individual spheres. Nothing written or originally intentioned in the Constitution (before the Court was given the chance to change things, through interpretation and judicial construction) has changed that balance.  And that is why the federal government has no “Police Powers.”  Only the states have police powers.  What are “police powers”?  In the United States, a state’s police power comes from the 10th Amendment, which gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, health, and morality of its people.  The Supreme Court, at least until the turn of the 20th century (1905), has consistently held that the police power of a state embraces any law for such purposes that a state believes are necessary to protect and benefit its people, as long as such law does not infringe on any power delegated to the general government in the Constitution.  Morality is outside the jurisdiction of the Supreme Court because then the decision rests on the morality of the justices.  Welfare is a state issue, unless it is an issue that touches on “all Americans, in general.”  The Supreme Court must stick to an opinion based on the interpretation of the Constitution.

In 1932, Justice Brandeis, in the case New State Ice Co. v. Liebermann wrote: “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory and try novel social and economic experiments without risk to the rest of the country.” (dissenting opinion).  The term “states as laboratories of experimentation” is, of course, a not only a reference to federalism but a statement of one of its greatest benefits – innovation and solutions. The case concerned the constitutionality of an Oklahoma statute forbidding the manufacture and distribution of ice without a license. Under the challenged statute, the state was authorized to issue such a license only upon a showing “of the necessity for a supply of ice at the place where it is sought to establish the business.”  The plaintiff was denied a license because it was deemed that there was a sufficient supply.  A six-Justice majority invalidated the statute under the Due Process Clause of the 14th amendment as an unwarranted interference with the right to engage in private business in a lawful occupation.  In his dissent, Justice Brandeis laid out some of his growing frustrations with the Court’s substantive due process jurisprudence.  The full comment reads: “There must be power in the States and the Nation to re-mould, through experimentation, our economic practices and institutions to meet changing social and economic needs. I cannot believe that the framers of the 14th amendment, or the States which ratified it, intended to deprive us of the power to correct the evils of technological unemployment and excess productive capacity.  To stay experimentation in things social and economic is a grave responsibility. Denial of the right to experiment may be fraught with serious consequences to the nation. It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.”

In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote:  “Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems.”  In that case, the Washington Supreme Court held that the Washington Constitution’s protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court’s jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court’s lead.

In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school.  At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as “laboratories of democracy”:

       “While it is doubtful that any State, or indeed any reasonable person, would argue that it is wise policy to allow students to carry guns on school premises, considerable disagreement exists about how best to accomplish that goal. In this circumstance, the theory and utility of our federalism are revealed, for the States may perform their role as laboratories for experimentation to devise various solutions where the best solution is far from clear.

        The statute now before us forecloses the States from experimenting and exercising their own judgment in an area to which States lay claim by right of history and expertise, and it does so by regulating an activity beyond the realm of commerce in the ordinary and usual sense of that term. Justice Kennedy, in his concurrence, argued that the Commerce Clause should be read to allocate to the states exclusively the power to regulate gun use in school zones. This result, he wrote, is dictated by federalism, under which “the States may perform their role as laboratories for experimentation.”

In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers’ attempt to “split the atom of sovereignty.”  The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.

There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: “The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens…. Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal].  But we should at least look.”

To the Supreme Court justice, the historical record is of little importance or concern.  To be sure, the historical record hardly, if ever, mattered in their deliberations.  Rarely are the original debates and writings of the ratification conventions cited.  They have only been cited 122 times total in the over 30,000 cases they’ve ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court’s existence – in the formative years. Sadly, they haven’t been consulted as the authority on the meaning and intent of the Constitution as they clearly are.  In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington’s term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires.  If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have “served to refute every conflicting claim regarding the elastic clauses,” as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.

With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court’s mantra has been: “WHERE THERE IS A WILL, THERE IS A WAY.”  It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people – including the intelligent ones – would never imagine.  Yet it will never do the same for the states.  While enlarging every possible delegation of power for the government, it has never once enlarged the states’ domain under the 10th amendment.  While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states.  And therefore, the delegate balance of power has shifted further and further towards Washington DC – a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.

The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state.  Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition.  Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it.  New Hampshire’s resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement “That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so).  Montana’s bill was very similar and it almost passed.

The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country.  In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the “We the People” online petition system).  The site was launched on November 7, 2011, the day after Obama was elected for his second term.  President Obama had promised to respond to each petition that collected at least 25,000.  As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more.  Texas, for example, collected over 100,000 signatures.  Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.

President Obama indeed responded.  Essentially the answer was NO….  A state has no right to secede. It is stuck with the federal government, whether it likes it or not.  This is the response the White House issued on January 11, 2013:

      “Our founding fathers established the Constitution of the United States “in order to form a more perfect union” through the hard and frustrating but necessary work of self-government. They enshrined in that document the right to change our national government through the power of the ballot — a right that generations of Americans have fought to secure for all. But they did not provide a right to walk away from it. As President Abraham Lincoln explained in his first inaugural address in 1861, ‘in contemplation of universal law and of the Constitution the Union of these States is perpetual.’ In the years that followed, more than 600,000 Americans died in a long and bloody civil war that vindicated the principle that the Constitution establishes a permanent union between the States. And shortly after the Civil War ended, the Supreme Court confirmed that ‘the Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.’

        Although the founders established a perpetual union, they also provided for a government that is, as President Lincoln would later describe it, ‘of the people, by the people, and for the people’ — all of the people. Participation in, and engagement with, government is the cornerstone of our democracy. And because every American who wants to participate deserves a government that is accessible and responsive, the Obama Administration has created a host of new tools and channels to connect concerned citizens with White House. In fact, one of the most exciting aspects of the We the People platform is a chance to engage directly with our most outspoken critics.”

Essentially, the site, the initiative by the government was a ruse; a mere “feel-good” initiative.  It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized.  As Commodus’ sister Lucilla told her conniving brother in the movie GLADIATOR: “Give the people their illusions.”  As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment’s pause.

The people used to believe in our system of checks and balances – especially the courts – to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts.  Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they’ve also been in the business of legislating from the bench.  For the most part, federal courts have become the enemy of the people.  Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency.  Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts.  There is a reason that Americans have never viewed the federal government with more distrust.  Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government.  That percentage is less for Congress alone.  Less than a quarter of Americans believe that their representatives take their concerns to heart.  Less than that believe they can change the course their government is on.  [See Pew Research].

When you have a candidate who runs not on economic promises but on a promise “to protect your phone” (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can’t display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.

Frustration with the federal monopoly is growing.  Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.

Right now, we have to ask: Who watches the watchers?  The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide.  The Court’s nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.

As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government – this government – has transgressed limits and has overstepped its authority.  When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don’t believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained.  The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty.  The 10th Amendment reminds us of the balance of power: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”  By pitting the two sovereigns against one another, the balance is maintained.  Each one jealously guards and protects its sphere of power.  The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself.  And as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions. The other sovereign, the States, have no chair at the table.  And the only way our system can work — that is, work to protect the rights of the people rather than promote its own interests and longevity – is if the states get that chair at the table.

“If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself…. The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment.”   [John C. Calhoun, South Carolina Expositionand Protest, 1828]

In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general.  In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court.  With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state.  Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common – or federal – government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.

It is a moral imperative that we should seek to restore the proper balance.

How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012):  “The States are separate and independent sovereigns. Sometimes they have to act like it.”

References:
James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546–50, 579.

House of Delegates, Session of 1799–1800. (aka, Madison’s Report of 1800).  Referenced at:  http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

Allen Mendenhall, “Is the Fourteenth Amendment Good,” Mises Daily, January 2, 2015.  Referenced at:  https://mises.org/library/fourteenth-amendment-good

P.A. Madison, “Historical Analysis of the Meaning of the 14th Amendment’s First Section,” Federalist Blog, last updated August 2, 2010.  Referenced at:  http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

Frank Turk, “Why the 14th Amendment Can’t Possibly Require Same-Sex Marriage,” Townhall, March 17, 2015.  Referenced at:  http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full

Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)

Barron v. Baltimore, 32 U.S. 243 (1833)

Marbury v. Madison, 5 U.S. 137 (1803)

Vanhorne’s Lessee v. Dorance, 2 U.S. 304, 308 (1795).  Referenced at:  https://supreme.justia.com/cases/federal/us/2/304/case.html

The Slaughter-House Cases, 83 U.S. 36 (1873)  – The first US Supreme Court interpretation of the 14th amendment

New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash. 1989).

United States v. Lopez, 514 U.S. 549 (1995)

State v. Seibel, 471 N.W.2d 226  (Wis. 1991) (Bablitch, J., dissenting)

US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

Calder v. Bull, 3 U.S. 386 (1798)

Cooper v. Aaron, 358 U.S. 1 (1958)

Chicago v. Morales, 527 U.S. 41 (1999)

U.S. v. Carlton, 512 U.S. 26 (1994)

Moore v. East Cleveland, 431 U.S. 494 (1977)

Roe v. Wade, 410 U.S. 113 (1973)   [A woman has the fundamental right to have an abortion]

Bowers v. Hardwick, 478 U.S. 186 (1986)   [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are “implicit in the concept of ordered liberty”]   Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].

Obergefell v. Hodges, June 26, 2015.  (Gay Marriage decision of 2015).    Referenced at:  http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).

The Kentucky and Virginia Resolutions, Bill of Rights Institute.  Referenced at:  http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/

Edwin S. Corwin, “A Basic Doctrine of American Law,” Michigan Law Review, Feb. 1914; pp. 247-250.  Referenced at:  http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents.  [Addresses the case Calder v. Bull].

Jefferson Davis  [The Abbebille Review, June 2014.  http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/

“Quotes from the Founding Fathers,” RenewAmerica, March 13, 2009.  Referenced at:  http://www.renewamerica.com/article/090313

James A. Gardner, “The “States-as-Laboratories” Metaphor in State Constitutional Law,” Valparaiso University Law Review, Vol. 30, No. 2.  Referenced at: http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr

James G. Wilson, “The Supreme Court’s Use of the Federalist Papers,” Cleveland State University, 1985.  Referenced at:  http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles

The White House Online Petition System, “Our States Remain United.  January 11, 2013.  Referenced at:  https://petitions.whitehouse.gov/response/our-states-remain-united

New Hampshire’s State Sovereignty Resolution (HCR 6 – “A Resolution Affirming States’ Rights Based on Jeffersonian Principles”)  –   http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

John C. Calhoun, South Carolina Exposition and Protest (1828).  Referenced at:  http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf

Texas Governor Greg Abbott, press release (June 26, 2015).  Referenced at:  http://gov.texas.gov/news/press-release/21131

Thomas Paine, Rights of Man (1791-1792).  Referenced at:  http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/

The Federalist Papers.  Referenced at:  http://avalon.law.yale.edu/subject_menus/fed.asp

* Federal mandates:  Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]

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TIME TO CHANGE THE SUPREME COURT: RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

Supreme Court - caricatures

Written and Proposed by Diane Rufino

RESOLUTION PROPOSING A CONSTITUTIONAL AMENDMENT TO CHANGE THE MEMBERSHIP OF THE SUPREME COURT

An amendment to replace the States’ influence in the federal government since the 17th Amendment was adopted.

“…If no remedy of the abuse be practicable under the forms of the Constitution, I should prefer a resort to the Nation for an amendment of the Tribunal itself.”  — James Madison, in a letter to Thomas Jefferson, 1832

AMENDMENT PROPOSAL:

Whereas, “The Creator has made the earth for the living, not for the dead.  Rights and powers can only belong to persons, not to things.”  (Thomas Jefferson).  Rights and powers do not originate or belong to a government, unless that power is exercised for the People – on behalf of them – and NOT against them;

Whereas, the several States, by a compact under the style and title “Constitution for the United States,” and of amendments thereto, voluntarily constituted a general government for special common purposes;

Whereas, the several States are parties to the compact (Constitution), with the people of said States acting in their own conventions to consider, debate, deliberate, and ratify it;

Whereas, our government structure is predicated on separation of powers between the States, as sovereigns, and the federal government, which is sovereign with respect to certain responsibilities;

Whereas, this separation of powers, known as federalism, is a critical feature of our government system, intended to safeguard the “precious gem” of individual liberty by limiting government overreach;

Whereas, there is no provision in the Constitution nor any grant of delegated power by which the States can be said to have (willingly or intentionally) surrendered their sovereignty, for it is clear that no State would have ratified the document and the Union would not have been established;

Whereas, the States were too watchful to leave the opportunity open to chance and using an abundance of caution, insisted that a series of amendments be added, including the Tenth Amendment, as a condition of ratification and formation of the Union;

Whereas, the Preamble to the Bill of Rights expressed the unambiguous intention of those amendments, and reads: “The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”;

Whereas, that relationship between the states and the federal government is defined by the Tenth Amendment, which reads:  “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people”;

Whereas, the critical relationship has been eroded through the many Supreme Court decisions which have transferred power from the States to the federal government in order to enlarge its sphere of influence;

Whereas, the federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself, and as such, its need for power and its discretion – and not the Constitution – have been guiding those decisions.

Whereas, the federal government has created for itself an absolute monopoly over the possession and scope of its powers and has consistently assumed powers it wasn’t meant to have – misappropriating them from the States and from the People;

Whereas, the federal government has used said monopoly to change the nature of the Constitution and redefine its terms without using the lawful route, Article V;

Whereas, the particular security of the people is in the possession of a written and stable Constitution. The branches of the federal government have made it a blank piece of paper by construction;

Whereas, the federal government, through the consolidation and concerted action of its branches and said monopoly, the government has created a government that is bloated, vested with illegitimate powers, coercive, wasteful, corrupt, and out of touch with the People, is one in which less than a quarter of the people have trust in, and most importantly, is one that poses serious threats to the exercise of the freedoms that Americans are promised;

Whereas, the right of judging on infractions of inherent powers is a fundamental attribute of sovereignty which cannot be denied to the States, and therefore they must be allowed to do so;

Whereas, the States need a voice directly in the federal government in order to break up its monopoly and to serve as the only effective check to prevent unconstitutional laws from being enforced;

Therefore, in order to reverse the unintended concentration of power in the federal government and in order to divest it of powers it has misappropriated and assumed for the past 200 years

And Therefore, in order to replace the States’ influence in the federal government since the 17th Amendment was adopted, to recognize their sovereign right to meaningfully defend their sphere of power embodied in the Tenth Amendment, and to have them, as the parties who created and adopted the Constitution and from which the government’s powers derived, be the tribunal which offers the opinions of constitutionality, the following amendment is proposed to alter the make-up of the Supreme Court:

  • The Supreme Court’s membership will increase from 9 to 50. This way, citizens don’t incur the outrage that comes from a decision handed down by a mere 9 mortals, each motivated like other politicians with politics, legacy, passions, opinions, prejudices, personal preferences, ideology, etc., or the more outrageous situation of a 5-4 decision.]
  • Justices to the Supreme Court will be assigned by the States. Each state will select one justice to the Court. That justice will be selected by the particular state legislature (or popular referendum).
  • Justices selected by each state MUST have a documented history of adherence to the original meaning and intent of the Constitution and MUST have cited supporting documentation for its meaning and intent, including the Federalist Papers and the debates in the various state ratifying conventions. [Any change to the Constitution, including to reflect “modern times,” must be in the form of an amendment].
  • Justices can serve an unlimited term, but that term can be shortened upon a showing of incompetence, disloyalty to the state, or by violating the previous provision.
  • Justices will require each law passed by Congress to be prefaced with the particular grant of delegated Constitutional power which grants legal authority for that law. [Having 50 justices will allow the Court to render an initial opinion on the constitutionality of each piece of legislation, thus giving Congress the opportunity to be more cautious and responsible with its office.]
  • The first task of the newly-seated Supreme Court will be to review the federal budget for spending that is not constitutional. The analysis will be used to remind Congress what are the constitutional objects of spending, to adjust federal taxation, and to help return policy-making and legislative power to the states.
  • The next task of the newly-seated Supreme Court will be to invalidate all federal mandates (*) and eliminate all funding the government uses or plans to give/offer the states through “conditioned” grants or other forms of funding, contractual or otherwise. [Mandates are directly in violation of the 10th Amendment to the Constitution of the United States; Congress may not commandeer the legislative and regulatory processes of the states. With respect to federal grants and other forms of funding, if the government’s budget includes funds to “bribe” the states and otherwise attempt to influence state policy or planning, then it clearly overtaxes. Bribing the states or otherwise paying for any of its internal functions or projects is not one of the objects for which Congress can tax and spend under the Constitution. Such funding will end and the reduced federal tax rate will allow the states themselves to tax according to their own schemes to fund their own projects.]
  • The Supreme Court’s new membership will establish new constitutional law jurisprudence. They not be bound by any previous court decision and will agree to establish continuity in jurisprudence only among their own decisions.
  • Congress will not attempt to limit jurisdiction on this newly-organized Supreme Court in an attempt to frustrate the intent of this amendment.
  • Because the Constitution is the peoples’ document – their shield against excessive government in their lives and affairs – the justices will honor the rightful expectation that it is firm and unambiguous in its meaning. “The Constitution of a State is stable and permanent, not to be worked upon by the temper of the times, nor to rise and fall with the tide of events; notwithstanding the competition of opposing interests, and the violence of contending parties, it remains firm and immovable, as a mountain amidst the raging of the waves.”  [Justice William Patterson, in Vanhorne’s Lessee v. Dorance (1795)]. A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed.  The purpose of having a stable and firm constitution is so that when government transgresses its limits, the people can immediately recognize such action. [Thomas Paine].  Any change in the meaning of the US Constitution will be sought through the amendment process provided in Article V.
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RESOLUTION PROPOSING TO ELIMINATE ARTICLE 1, SECTION 4 (“SECESSION PROHIBITED”) FROM THE NC CONSTITUTION

Written and Proposed by Diane Rufino

RESOLUTION TO REMOVE ARTICLE I: SECTION 4 from the NORTH CAROLINA CONSTITUTION

This is a resolution to propose that Article I, Section 4 be removed from the NC state constitution, in part to acknowledge that the federal government unconstitutionally required the provision and in part to reassert state sovereignty

Whereas, Article I, Section 4 of the NC state constitution reads:  “Sec. 4.  Secession prohibited. This State shall ever remain a member of the American Union; the people thereof are part of the American nation; there is no right on the part of this State to secede; and all attempts, from whatever source or upon whatever pretext, to dissolve this Union or to sever this Nation, shall be resisted with the whole power of the State.”;

Whereas, in 1865, under orders from President Abraham Lincoln, North Carolina’s provisional governor, William W. Holden, called a convention to write a new constitution for the state and to submit it to the US Congress for approval as one of the preconditions for re-admission into the Union. Two requirements for re-admission were the ratification of the 13th amendment (to reject slavery) and a provision in the state constitution rejecting the right of secession;

Whereas, North Carolina was put in a seriously compromising position whereby she had no representation in the US Congress but would continue to be governed by its laws and policies.  Re-admission would allow representation;

Whereas, in order to be admitted back into the Union, the provision “secession prohibited” was included in the state constitution,

Whereas, the provision was added against the will of the people (the new constitution was rejected in a popular vote) and hence undemocratic;

Whereas, the US promises a republican form of government in every state (one of the very reasons Lincoln felt justified in waging the Civil War);

Whereas, the provision was added under coercion (and amounts to a “forced confession”);

Whereas, the provision is a badge of shame; it attaches a stigma to the state and the people of North Carolina as a result of being defeated and plundered by the North in the Civil War;

Whereas, the provision continues to punish North Carolina for daring to side with her neighbors in 1861 rather than invade and wage war against them.  [After seven states had already seceded, Secretary of War, Edwin Stanton, sent a telegram to NC Gov. Ellis telling him that North Carolina would be expected to furnish two regiments to make war on the seceded States. The governor closed his refusal with these words: “I can be no party to this wicked violation of the laws of the country, and to this war upon the liberties of a free people. You can get no troops from North Carolina.”];

Whereas, North Carolina had no intention of seceding UNTIL it became clear that she would be required to wage war against her sister southern states (the states she had more in common with), and hence was coerced into secession. [In 1861, after her neighbors had already taken action, NC sounded rejected a convention to vote on secession];

Whereas, while North Carolina voted against a convention and rejected secession, it never gave up its belief in two principles: first, that the Constitution is the supreme law of the land pursuant to the express delegations of power held therein, that those express delegations define the extent of its powers with each state holding reserve sovereign powers (tenth amendment), and that the Federal government could not force one State to fight another;

Whereas, after the Civil War was concluded, the US Constitution was never altered to redefine the relationship of the States to the federal government, and thus, the states continued to retain all its reserved rights of state sovereignty under the tenth amendment;

Whereas, the Preamble to the Bill of Rights continues to emphasize how important each of the rights and privileges expressed in the first ten amendments in the establishment of the Union, the design of government, and the harmony of our federation (united states).  [”The Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution”];

Whereas, secession is an inherent right under a state’s sovereign powers, pursuant it its right of self-determination and self-preservation;

Whereas, secession is a fundamental right embodied in the Declaration of Independence [Under the Treaty of Paris, 1783, King George III acknowledged that the state of North Carolina, a sovereign state, had seceded from Great Britain];

Whereas, the right of secession being fundamental and inalienable, it can never limited by the federal government in any way, including by hiding behind the Constitution;

Whereas, the provision amounts to a forced denial of North Carolina’s fundamental right of sovereignty;

Whereas, the provision continues to punish the state for daring to remain loyal to founding principles of sovereignty;

Whereas, the provision acts as a badge of shame;

Whereas, the state of North Carolina, while recognizing all of the above as true, has no intention of abandoning its fellow states and leaving the Union.

Therefore, be it Resolved, that the People of the State of North Carolina demand that Article I, Section 4 be removed from the state constitution.

NC Flag

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NULLIFICATION: The Power to Right Constitutional Wrongs

NULLIFICATION - John Greenleaf Whittier (Abolitionist and Nullifier)

 

 

 

 

by Diane Rufino, July 9, 2015

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

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

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

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

In the Kentucky Resolutions of 1798, Jefferson wrote:

  1. Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In the Kentucky Resolutions of 1799, he wrote:

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy……

In the Virginia Resolutions of 1798, James Madison wrote:

RESOLVED……. That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

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

NULLIFICATION - When Injustice Becomes Law, Nullification Becomes a Duty

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

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

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

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

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

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EASTER MESSAGE

Jesus - has risen (Luke)

by Diane Rufino

The crucifixion of Jesus and His resurrection are personal.  Every Easter we are reminded of His love for us and his intention that the bonds between us and God need not necessarily be severed because of our inability to remain sinless in a wickedly sinful world.  I may not have the greatest grasp of the religion I follow, but I firmly believe that God’s intentions for us are not defined by Man or the ambitions of religious leaders, but rather, by the events that we celebrate at Easter time. The series of events began with Palm Sunday (when Jesus entered Jerusalem proclaiming himself to be the messiah), to Holy Thursday (preparing for the new church with the Last Supper), to Good Friday (his mortal death), and finally to Easter Sunday (the Resurrection).  He died to make religion a personal relationship with God.  Although it was the Jewish leaders at the time who pushed for and instigated for his trial and sentence, it was for the benefit of sinners that Jesus ultimately committed to the path which would lead to his death on the cross.  Matthew 20: 28 reminds us: “Just as the Son of Man did not come to be served, but to serve, and to give His life a ransom for many.”

Ransom is defined as the practice of offering something of value for the release of someone held prisoner.  It was once understood that our sins condemned us and prevented us from an eternal relationship with God.  We were prisoners on account of our sinful nature.  And then Jesus offered himself as a ransom for us. He offered his perfect being to renegotiate our relationship with God.  The ransom – the gift of his teachings and then the tragedy of his torturous death – was offered in fulfillment of scripture.  The resurrection was the acceptance by God of that ransom.  The covenant was made.  It was made for our benefit.  It was made for you and for me, and not because we belong to a specific church or not.  It was made without precondition and without a church even formed.

Offers and acceptances are made every day, to secure promises and make them ironclad.  Perhaps it is the lawyer in me that sees the promise in the events of Easter.  Jesus offered himself for the sins of man. And God accepted that offer. Although he was the Son of God, he still retained his free will to the end.  He prayed and reflected on what he should do, and we know what he hoped wouldn’t be asked of him. In the end, he willingly accepted his fate. On Easter Sunday, when Jesus was raised from the dead, the covenant was complete.  “The blood of the new and everlasting Covenant.”  It had to be something audacious to demonstrate the divine hand of God.

When we think of Easter, we instinctively recall that God sacrificed his only Son for our sins.  In thinking of Easter in these terms, I am reminded of the account in the Bible when God asked Abraham to sacrifice his only son.

God commanded Abraham to sacrifice his son, his only son Isaac, the only child of his beloved wife Sarah, the son promised to him by God.  As a show of his unwavering faith, he took his son to the region of Moriah, built an altar and arranged the wood on it.  He then bound his son Isaac and laid him on the altar, on top of the wood. As he reached out his hand and took the knife to slay his son, an angel of the LORD called out to him from heaven, and instructed him to stop.

The point was for Abraham to demonstrate that he trusted God completely.  God was testing his faith, his loyalty, and perhaps his love.  He refused to allow Abraham to carry through with the act because He doesn’t believe we should be tested by pitting our love for one another, especially our children, against our love for Him.

And yet, that is exactly what God did for us at Calgary (aka, Golgotha).  He sacrificed his Son, born of flesh and blood, and without sin, for us sinners.

Jesus endured hours of unspeakable brutality at the hands of the Romans.  And then, he suffered unimaginable agony on the cross for almost six hours, hanging against a wooden cross with large nails through his flesh with the weight of his body burdening his respiration.  By 3:00 in the afternoon, Jesus knew that the hour was finally at hand, and in fulfillment of the scriptures, he said, “I’m thirsty.”  A jar of sour wine was sitting there, so a sponge was soaked in it and held up to his lips. When he had tasted it, he said, “It is finished,” and bowed his head and dismissed his spirit.

How could we sinners be worthy of such a perfect sacrifice?  Just as the sacrifice was proof of Abraham’s faith and loyalty, Jesus’ death was likewise a sacrifice.  It is proof of God’s eternal love for us and his sincere promise to share eternal blessings with us who believe.  He wants to share His kingdom of Heaven with us, even when we are not all that we can – should – be.

Easter reminds us of God’s relentless desire for our heart and soul.  He sent His only son to suffer and die to make that clear to us.  The cross reminds us of that unconditional love….. the compact; the Covenant; the promise.  Again, that act was personal.

There should be no greater reason to live life to the fullest and with the greatest intentions than because of the selfless act – the sacrifice – at Calgary.  Yes, sometimes life is tough and there are seemingly insurmountable obstacles to happiness and self-worth, but when those doubts creep in, we should remember what Jesus went through to show how much he believes each of us are worth and how costly that price was.


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Comparing Obama’s Amnesty Plan to the Emancipation Proclamation

AMNESTY  by Diane Rufino, November 22, 2014

According to Democratic House Minority Leader Nancy Pelosi, President Obama’s plan to excuse the illegal action of millions of immigrants not unlike Abraham Lincoln’s effort to free slaves.  At first I thought it was a joke.  And then I remembered two things: Nancy Pelosi is an idiot and has no sense of humor.

In a press conference on November 20, Nancy Pelosi said: “Does the public know that the Emancipation Proclamation was an executive order?  People have to understand how presidents have made change in our country.”   She continued: “Remember, President Lincoln said, ‘public sentiment is everything… I wish the Republicans would at least give the public a chance to listen to what the president is trying to do.”

Listening to the people is exactly what the President should do….   Maybe he already forgot, but the election this month can be seen as a complete rejection of his policies. Republicans just won complete control of both the House and Senate for the session that will begin in January.  Voters turned out to do what they see as an urgency…. to turn out government leaders who are willing to support the President in his agenda on immigration, healthcare, and more.  The urgency in this election was not to grant amnesty to “fix the immigration problem” but to PREVENT the President from doing so.

Perhaps Nancy Pelosi looked to President Lincoln for a new Democratic talking point because, after all, Lincoln was a tyrant and consolidated executive power to act extraordinarily in extraordinary circumstances. But I question whether our current broken immigration situation amounts to an “extraordinary circumstance.” The only reason we have this current immigration problem is because the government has refused to enforce immigration laws, an express enumerated power delegated to it.  The government can’t use a crisis of its own making as a reason to invoke unconstitutional powers.

Just because one president overstepped the law doesn’t mean another president should.  The people are entitled to a government that is restrained by its charter.  The American people are entitled to a government that operates within its boundaries so they can be comforted that government acts consistently, legally, and not in violation of their rights and interests.  Nancy Pelosi likes to think that Presidents can define issues as “crises” and thereby usurp power to address them. And then she believes that this type of conduct makes a President “great.”  That type of power grab made Adolph Hitler a monster.  That type of power grab made Abraham Lincoln a tyrant and gave rise to all-powerful government rather than a subordinate one. Luckily for the government, the party that wins a war has the luxury of writing the history books, providing the talking points, re-writing its reasons for the bloodshed, and demonizing the other side.  The admiration the country has for Abraham Lincoln has everything to do with the great debt the government owes to him and how his legacy has been defined.

So, what’s the real story behind the Executive Order?  Abraham Lincoln issued a preliminary Emancipation Proclamation on September 22, 1862. This date was chosen to coincide with the news of the battle at Antietam, near the village of Sharpsburg, Maryland. Antietam is infamously known as being the bloodiest single day of fighting in the Civil War. Although the battle is officially recognized as a stalemate, the North attempted to claim it as their victory. Hence, it would be a perfect time for Lincoln to tie a northern victory with the emancipation of slaves. The preliminary Emancipation Proclamation stipulated that if the Southern states did not cease their rebellion by January 1st, 1863, then the Proclamation would go into effect. According to Lincoln, if the slaves were being forced to aid the Confederate war machine, by working in the fields and hauling armaments and building fortifications, he would act in his capacity as commander-in-chief to liberate that labor. When the Confederacy did not yield, Lincoln issued the final Emancipation Proclamation on January 1, 1863. U.S. Navy General Order No. 4, issued on January 1, 1863 declared “that all persons held as slaves” within the rebellious states “are, and henceforward shall be free.”  It was issued as the nation approached its third year of bloody civil war and as the North continued to watch its defeat at the hands of the South.  With the Emancipation Proclamation of January 1863, Lincoln decided to go one step further.  He would not only to free the slaves outside of Union-controlled areas but also to enlist any black man as a soldier in the Union army.  Thus black men could be part of the movement to liberate those in bondage.

The Emancipation Proclamation broadened the goals of the Civil War. While slavery had been a major issue that instigated tensions between the North and the South, Lincoln’s only mission at the start of the war was to keep the Union together. The Proclamation made freeing the slaves an explicit goal of the Union war effort, and was a step toward abolishing slavery and conferring full citizenship upon ex-slaves.  But make no mistake, the measure was not inspired by any affection for the slave or any stirring ambition to see them free in white-dominated society.  It was a cold calculated initiative to undermine the South.  Although the Emancipation Proclamation did not end slavery in the nation, it captured the hearts and imagination of the slaves who were held as property in the South. It encouraged insurrection among the slaves against their white plantation owners (who, at the time, were mostly women and children). It eroded the loyalty and devotion of confederate soldiers because now their attention was torn between the war and between their families at home with this new threat from slaves who are encouraged to undermine the confederate war effort. Furthermore, the sooner the uprising could occur, and the greater the confederate effort could be undermined, the sooner the opportunity for local slaves to be liberated.  After January 1, 1863, every advance of federal troops would offer them immediate freedom. And again, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators. [By the end of the war, almost 200,000 black soldiers and sailors had fought for the Union and freedom].

The Emancipation Proclamation was solely designed to energize the war effort because the North was still losing at that point, and losing badly. Far greater numbers of Northern soldiers were being killed in the many battles than Confederate soldiers.  But the Proclamation lacked any force of law with respect to actual emancipation.  First, it purported to free slaves in territory that no longer was under the jurisdiction of the United States government. The southern states had seceded from the Union and immediately formed the Confederate States of America, a new and independent, sovereign nation.  The only way slaves could be emancipated was if the North won the war. Second, the Emancipation ignored legislation that Congress had passed and Constitutional provisions regarding slavery and slaves, including the controversial Fugitive Slave Laws.  True, Congress (lacking any members from Southern states) moved towards limiting slavery and freeing slaves, but it refused to do so in the states.  Their measures only applied to territories. As in the antebellum era, Congress adamantly refused to legislate regarding slavery in the states. The issue was deemed a state prerogative on which Congress had little or no constitutional authority.

The constitutional question is whether President Lincoln overstepped his authority in signing the Executive Order – U.S. Navy General Order No. 4.  As President and Chief Executive, the Proclamation was an assault on Congress as the law-making branch of government.  And he seems to have understood that.  He seems to have understood that the federal government’s power to end slavery in peacetime was limited by the Constitution, which before 1865, committed the issue to individual states (through the Article V amendment process). But with the Civil War going on, Lincoln issued the Proclamation under his authority as Commander in Chief of the Army and Navy, outlined in Article II, section 2 of the US Constitution.  As such, he claimed to have the martial power to free persons held as slaves in those states that were in rebellion “as a fit and necessary war measure for suppressing said rebellion.”  In other words, his position was that Congress lacked power to free all slaves within the borders of rebel held states, but as Commander-in-Chief, he could do so if he deemed it a proper military measure.  He did not have this authority over the four slave-holding states that were not in rebellion.

The only way Lincoln could support this approach is if he completely ignored the articles of secession of the eleven southern states that decided, in special convention, to issue in order to legally separate themselves from the government of the United States – exactly as the 13 original states did with the Declaration of Independence to dissolve their bonds of allegiance with Great Britain.  In fact, the wording of several of the Ordinances of Secession are designed very much after the Declaration (just so that the Lincoln administration should have no doubt about their intentions).  Furthermore, to support his approach, Lincoln would have to completely ignore the status of the Confederate States of America as a new, independent, and sovereign country.  He would have to ignore their Constitution, which was based almost exclusively on the US Constitution, except for provisions regarding the power to enforce protective tariffs and slavery.

During the time of the Civil War, the US Congress took up the issue of slavery.  In January 1862, Thaddeus Stevens, one of the leaders of the Radical Republican faction of the Republican Party and the Republican leader in the House, called for total war against the South to include emancipation of slaves, arguing that emancipation, by forcing the loss of enslaved labor, would ruin the economy of the South.  On March 13, 1862, Congress approved a “Law Enacting an Additional Article of War”, which stated that from that point onward it was forbidden for Union Army officers to return fugitive slaves to their owners.  On April 10, 1862, Congress declared that the federal government would compensate slave owners who freed their slaves. Without the South in the Union and without any members of Congress from the South to represent its interests, there apparently was no need to respect the Fugitive Slave provision of the Constitution. (Slaves in the District of Columbia were freed on April 16, 1862, and their owners were compensated).  On June 19, 1862, Congress prohibited slavery in all current and future United States territories (though not in the states), and President Lincoln quickly signed the legislation. By this act, they repudiated – nullified – the 1857 decision by the US Supreme Court in the Dred Scott case, which announced that Congress was powerless to regulate slavery in U.S. territories

So the question is whether the power President Lincoln assumed as Commander-in-Chief allowed him to act outside of the Constitution’s structure of separation of powers and checks and balances during the Civil War.  I would submit that he didn’t.  He merely wanted to extend to those collateral parties to the war – the slaves – a vested interest in fighting for the North and undermining the effort of the South.  It was sabotage by usurpation.

Is Nancy Pelosi starting this Democratic talking point for the same reason Lincoln issued the Emancipation Proclamation?   Are they hoping that Ohama’s amnesty plan will energize those here illegally?  Are they hoping to sabotage our rule of law by claiming there is precedent for unconstitutional executive actions?

Well, perhaps in this regard, the President’s amnesty plan is designed to resemble the Emancipation Proclamation.

Let’s go back to President Obama’s plan for the amnesty of 5 million illegal immigrants. In light of the recent election and voter mandate (he got slaughtered in the election!)  and despite a recent Rasmussen poll which shows that 62% of Americans do NOT want the president to act on immigration reform without the approval of Congress,  the president signed two Executive Orders yesterday, November 21, onboard Air Force One (en route to Las Vegas).  The Executive Orders would delay deportation for millions of illegal immigrants. They will grant “deferred action” to two illegal immigrant groups – (1) parents of US citizens or legal permanent residents who have been in the country for five years, and (2) young people who were brought into the country illegally as of 2010. During his televised 15-minute primetime speech Thursday evening from the East Room of the White House, Obama said his administration will start accepting applications from illegal immigrants who seek the deferred actions. Those who qualify will be granted protections for three years.

It’s no wonder that Obama has chosen to go to Las Vegas for his first stop in drumming up support for his plan.  Hispanics are a growing and powerful constituency in Nevada.

In general, the American people seem confused as to what an Executive Order is, what applicability is has, and how much authority the President has to issue them.  If you look at social media and blog responses, those who support Obama’s amnesty plan claim that Obama is only being criticized unfairly because he is black and as proof, they cite the fact that President Bush signed far more Executive Orders.  This is a typical liberal response, lacking in any fact or logic. Yes, President Bush signed a butt-load of Executive Orders (and we’re talking Kim Kardashian size butt loads). But each executive order is different. A president can issue an executive order to clarify his position, to further manage “executive” operations, give directions, give instructions, make declarations, make proclamations (like the one to establish the National Day of Prayer), give directives, etc. They are mainly for clarification and for instructions. They further explain something that Congress has passed. When Executive Orders are pursuant to valid Constitutional powers, they have the force of law. But Executive Orders are ALWAYS subject to the Separation of Powers doctrine. The President can NEVER assume powers not granted to him under Article II.

In 1950, North Korean troops invaded the Republic of Korea. Backed by a UN Resolution, President Truman sent U.S. troops to aid South Korea. He did not ask for a declaration of war from Congress. Because of the “war,” demand increased for steel and prices had risen.  As steel prices rose, the steel worker union, the United Steel Workers of America, threatened a strike unless they received a wage increase.  President Truman believed that it would be a disaster for the nation if steel production were stopped and he ordered his Secretary of Commerce to take control of and operate the steel mills.  Truman wanted to make sure that the military effort in Korea would not be disrupted.

The steel mill owners believed President Truman’s seizure was unconstitutional because it was not authorized by any law and they took it to the Supreme Court. Truman argued that his position as Commander-in-Chief gave him the necessary power to seize and operate the mills. (Sounds similar to what Lincoln did with the Emancipation Proclamation). In 1951, the Supreme Court issued its opinion in the landmark case known as Youngstown Steel v. Sawyer.  This is an important case and one that is certainly studied in law school. The Court struck down President Truman’s Executive Order and through its decision (full of cajones), it helped to curb presidential power. Perhaps it was an attempt to push back against presidents (like FDR and Truman, thinking themselves untouchable because of their management of the war) who had greatly sought to enlarge the powers of the Executive. The Court disagreed with Truman and held that neither the Constitution nor any act of Congress allowed the President to take over the steel mills. “The President’s power, if any, to issue the order must stem either from an act of Congress or from the Constitution itself.” There had been no act of Congress, so the Court turned to the Constitution. The Court ruled that the President’s role of Commander in Chief power did not authorize the action, and neither did the “several constitutional provisions that grant executive power to the President. In the framework of our Constitution, the President’s power to see that the laws are faithfully executed refutes the idea that he is to be a lawmaker.”  In other words, his power to see that the laws are faithfully executed should NOT be confused with the power to make law in the first place.

The ruling was based on the Constitution’s Separation of Powers doctrine. Legal scholars point out that the Court did not rule that any seizure would have been unconstitutional. Rather, Truman’s actions were unconstitutional because he did not have any legislative authority.

The case stands for the bright line rule that a President CANNOT act where Congress has decided NOT to act.

Another argument pushed by supporters of the president’s Executive Order, including Nancy Pelosi herself, is that Obama is not doing anything that Ronald Reagan didn’t do when he was president, in deferring the removal of certain immigrants.  I believe there is a clear difference though. Congress had passed sweeping immigration reform legislation in 1986, granting full-blown amnesty.  In Obama’s case, Congress hasn’t passed any immigration reform.  I would remind folks to visit the Youngstown Steel case.

In 1986, Congress passed a full-blown amnesty, the Simpson-Mazzoli Act, conferring residency rights on some 3 million people. Simpson-Mazzoli was sold as a “once and for all” solution to the illegal immigration problem but ended up being riddled with fraud. It was passed as immediate amnesty with strict enforcement measures to be put in place for the future. Unfortunately, the bill failed to anticipate the situation where certain members of a single family qualified for amnesty while others did not.  Nobody wanted to deport the still-illegal husband of a newly legalized wife. Reagan’s Executive Order attempted to address this situation and tidy up Congress’ immigration scheme.  The public didn’t view it to a unilateral initiative to reform immigration and it was not seen as controversial.

In other words, Ronald Reagan acted in conjunction with Congress and in furtherance of a congressional purpose.  Obama is intentionally ignoring Congressional purpose.

The executive action by President Obama, however, would follow not an act of Congress but a prior executive action of his own.  Remember when he suspended enforcement against the so-called “dreamers” by Executive Order in June 2012.  The 2012 Executive Order announced a change in immigration policy; the government would stop deportations and begin granting work permits for some Dream Act-eligible students.  The policy change applied (applies) to young undocumented immigrants who entered the United States as children, following along the same lines as the Dream Act, a bill that passed in the House of Representatives but failed in the Senate in 2010.  (Dream Act-eligible young people are referred to as “DREAMers”).

AMNESTY #2

No one from the left seems to care about what lies at the very core of the president’s actions.  Let’s be clear….  President Obama has NO authority to do what he wants to do – to grant legal rights to illegal immigrants.  But never-mind the substantive issue here, the President has NO right to sidestep Congress and to ignore the Constitution. He has no right to rule by fiat and he has no right to act like a King. No matter where a person stands on the issue of amnesty, it is the conduct by this president and the audacity with which he approaches the job that should make every American fuming mad.

The lies, the accusation, and the frivolous comparisons to Ronald Reagan are bad enough.  But when I hear folks out there comparing the Amnesty plan to the Emancipation Proclamation and illegal immigrants to slaves, I want to scream. I want to remind those on the left who the REAL slaves are, because they really don’t have a clue.  The real slaves are the tax-paying middle class who aren’t exempt from the federal income tax scam but aren’t rich enough to have any lobbying power or ability to bribe anyone for favors.  They are the workers…  the ones who get up each day, ride a bus, train, plane, etc to work so they can pay for a house, college, car, clothes, food, and to support the kids that they carefully planned to have. The slaves are the ones who pay taxes at the expense of those who don’t but have no say in how their money (their property) is used to increasingly allow those deadbeats to live more comfortably.  The slaves are the ones who are forced to pay for the healthcare plans of those who, in great part, don’t give a rat’s ass about their health or how to improve it.  The slaves are the ones whose kids who kids can’t get into top-notch schools based on their high grade point averages because they are not a minority.  The slaves are the ones who have to save all their receipts and fill out lots of paperwork each April, hoping that the government won’t send a letter accusing them of not paying enough, while welfare recipients can use their money (OUR money) to buy cigarettes, alcohol, and luxury items, and go to gambling casinos.  Slaves are the ones who take voting seriously and go to the ballot box well-informed of the issues and with skin in the game but immediately have their votes cancelled out by ones that are cast by low-information voters without skin in the game for the sole purpose of making sure they continue to get what the other voters can provide to them.  But most importantly, slaves are the ones who, because they pay taxes and have files with the IRS, are forced to censor themselves and refrain from protest for fear that the government will use their henchmen (the IRS) to audit and otherwise harass them.

The real slaves want the President to uphold the Constitution and stop trying to make a mockery of it.

As mentioned earlier, the Emancipation Proclamation carried no legal authority and freed no one, and so in this sense, I hope that Obama’s lawless behavior will be recognized similarly and have similar results.

Watch:
Nancy Pelosi Compares Obama’s Amnesty Bill to Emancipation Proclamation – https://www.youtube.com/watch?v=KNxglS1E3pc

Nancy Pelosi to GOP on Immigration Action: ‘Look to Ronald Reagan, Your Hero’  –   https://www.youtube.com/watch?v=AYLrmnW3JHo  (“The President’s Actions are as good as it can be under the law…. That doesn’t mean we wouldn’t like to have a bill….  “  Nancy Pelosi)

References:
Billy House, “Pelosi Compares Obama Immigration Order to Emancipation Proclamation,” National Journal, November 20, 2014. http://www.nationaljournal.com/congress/pelosi-compares-obama-immigration-order-to-emancipation-proclamation-20141120.

Henry L. Chambers Jr., “Lincoln, the Emancipation Proclamation, and Executive Power,” Maryland Law Review, Vol 73, Issue 1, Article 6 (2013. http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=3599&context=mlr   or http://digitalcommons.law.umaryland.edu/mlr/vol73/iss1/6

The Emancipation Proclamation, the Navy Department Library.  http://www.history.navy.mil/faqs/faq57-2.htm

Gabriel Malor, “No, Reagan Did Not Offer an Amnesty by Illegal Executive Action,” The Federalist, November 20, 2014.  http://thefederalist.com/2014/11/20/no-reagan-did-not-offer-an-amnesty-by-lawless-executive-order/

David Frum, “Reagan and Bush Offer No Precedent for Obama’s Amnesty Order,” The Atlantic, November 18, 2014.   http://www.theatlantic.com/politics/archive/2014/11/the-weak-argument-defending-executive-amnesty/382906/

Appendix:

THE EMANCIPATION PROCLAMATION

BY THE PRESIDENT OF THE UNITED STATES OF AMERICA.  A PROCLAMATION.

WHEREAS, on the twenty-second day of September, in the year of our Lord one thousand eight hundred and sixty-two, a Proclamation was issued by the President of the United States, containing, among other things, the following, to wit:

“That on the first day of January, in the year of our Lord one thousand eight hundred and sixty-three, all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever, free; and the Executive government of the United States, including the military and naval authority thereof, will recognize and maintain the freedom of any such persons, and will do no act or acts to repress such persons, or any of them, in any efforts they may make for their actual freedom.

“That the Executive will, on the first day of January aforesaid, by proclamation, designate the States and parts of States, if any, in which the people thereof, respectively, shall then be in rebellion against the United States; and the fact that any State, or the people thereof, shall on that day be in good faith represented in the Congress of the United States, by members chosen thereto at elections wherein a majority of the qualified voters of such States shall have participated, shall, in the absence of strong countervailing testimony, be deemed conclusive evidence that such State, and the people thereof, are not then in rebellion against the United States.”

Now, therefore, I, ABRAHAM LINCOLN, President of the United States, by virtue of the power in me vested as Commander-in-chief of the Army and Navy of the United States, in time of actual armed rebellion against the authority and government of the United States, and as a fit and necessary war measure for suppressing said rebellion, do, on this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and in accordance with my purpose so to do, publicly proclaimed for the full period of one hundred days from the day first above mentioned, order and designate as the States and parts of States wherein the people thereof, respectively, are this day in rebellion against the United States, the following, to wit:

Arkansas, Texas, Louisiana, (except the parishes of St. Bernard, Plaquemines, Jefferson, St. John, St. Charles, St. James, Ascension, Assumption, Terre Bonne, Lafourche, St. Mary, St. Martin, and Orleans, including the city of New Orleans,) Mississippi, Alabama, Florida, Georgia, South Carolina, North Carolina, and Virginia, (except the forty-eight counties designated as West Virginia, and also the counties of Berkeley, Accomac, Northampton, Elizabeth City, York, Princess Ann, and Norfolk, including the cities of Norfolk and Portsmouth,) and which excepted parts are for the present left precisely as if this Proclamation were not issued.

And by virtue of the power and for the purpose aforesaid, I do order and declare that all persons held as slaves within said designated States and parts of States are and henceforward shall be free; and that the Executive government of the United States, including the military and naval authorities thereof, will recognize and maintain the freedom of said persons.

And I hereby enjoin upon the people so declared to be free to abstain from all violence, unless in necessary self-defense; and I recommend to them that, in all cases when allowed, they labor faithfully for reasonable wages.

And I further declare and make known that such persons, of suitable condition, will be received into the armed service of the United States to garrison forts, positions, stations, and other places, and to man vessels of all sorts in said service.

And upon this act, sincerely believed to be an act of justice warranted by the Constitution upon military necessity, I invoke the considerate judgement of mankind and the gracious favor of Almighty God.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington this first day of January, in the year of our Lord one thousand eight hundred and sixty-three, and of the Independence of the United States of America the eighty-seventh.

ABRAHAM LINCOLN

WILLIAM H. SEWARD, Secretary of State.

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