RESOLUTION OPPOSING COMMON CORE

by Diane Rufino, Deputy Director of the NC Tenth Amendment Center and Resolutions Chair of the Pitt County GOP.  The following resolution will be presented at the 2014 Pitt County GOP Convention on March 8.

RESOLUTION OPPOSING COMMON CORE EDUCATION STANDARDS

WHEREAS, Common Core (CC) is a set of (math and English language arts) academic standards, created by two private membership organizations, the National Governor’s Association (NGA) and the Council of Chief State School Officers (CCSSO) and promoted as a “State Standards initiative” and as a method for conforming American students to uniform “internationally-benchmarked” achievement goals to make them more competitive in a global marketplace (www.commoncore.org), and

WHEREAS, Common Core is being promoted as a “state initiative,” that description is merely offered to give the public the illusion that the agenda is “state-led.” Common Core standards were actually initiated by private interests in Washington DC and not by state lawmakers. Both the NGA and the CCSSO are both DC-based trade associations (organizations founded and funded by businesses that operate in a specific industry) which used ACHIEVE, Inc. to do the creative work. ACHIEVE, Inc. is a progressive non-profit group based out of DC which has received much of its funding from the Bill and Melinda Gates Foundation; and

WHEREAS, Common Core uses copyrights and licenses to control its top-down, one-size-fits-all approach to education. A “one-size-fits-all” approach frustrates the very thing that makes a teacher a real “teacher” – her ability to recognize and address the fact that every child learns differently, progresses at a different pace, and responds differently to teaching strategies. The CC standards were founded on a severely flawed idea – that every child can learn the same way and at the same pace. It assumes that every child across America will “be on the same page at the same time”; and=

Whereas, Common Core is designed to bridge gaps in education performance, just as “No Child Left Behind” was designed to do. A one-size-fits-all approach to education that aims to bridge gaps is a formula for failure. A system of education can’t concentrate on bringing certain groups of students up without bringing many others down at the same time; and

WHEREAS, Common Core changes the fundamental role of education – from teaching HOW to think and process information to WHAT to think. Common Core teaches for job placement. The emphasis that Common Core puts on “job placement” puts the focus of our education system primarily on the economy and not on the well-being of our children; and

WHEREAS, the promoters of the Common Core standards claim they are based in research, the truth is that the creators were not researchers or educators or otherwise qualified to write the standards; and

WHEREAS, Common Core is an “untested” curriculum, which has not been field-tested anywhere, and which comes with a potential human price tag (requiring experimenting on our precious children), and

WHEREAS, Common Core comes with an enormous price tag (independent estimates put the cost at $14-16 billion over 7 years) yet that cost is not built in anywhere; and

WHEREAS, Common Core will require “Data Mining,” which is an unconstitutional invasion of an individual’s right to privacy under the 4th amendment. For those states who have adopted Common Core to continue being eligible for Obama’s “Race to the Top” federal funding (which includes North Carolina), they will be obliged to implement a State Longitudinal Database System (SLDS) in order to track students. They will track students by obtaining personally identifiable information, including such intimate details as the SS# of parents, mother’s maiden name, political affiliation or beliefs of the student and parents, mental and psychological problems of the child and family, sex behavior or attitudes, a history of personal behavior (including illegal, anti-social, self-incriminating, and demeaning behavior), special relationships (with lawyers, physicians, ministers, etc), religious beliefs and affiliations, and income. Furthermore, changes have been made to the federal FERPA law (Family Education Rights & Privacy Act), which took effect on January 3, 2012 expanding the definition of two key terms – (1) “personally identifiable information” and (2) “authorized representatives.” In short, the revised law permits a lot of the information collected by data mining to be shared with the Attorney General of the United States without student or parent permission.  [http://www2.ed.gov/legislation/FedRegister/proprule/1999-2/060199e.html  and       http://www.utahnsagainstcommoncore.com/dangerous-federal-ferpa-changes/ ];  and

Whereas, education is not an enumerated power delegated to the federal government by the States in Article I, Section 8 of the US Constitution. Common Core, and the government’s participation in it runs afoul of the Tenth Amendment, as education is a right reserved to the States. The government knows it doesn’t have the power to invade the states and create a one-size-fits-all take-over of education, yet it uses its power of conditional spending to achieve the same purpose (an end-run around the Constitution). If the federal government has enough money to bribe the states to adopt its policies with taxpayer money, then the government is clearly overtaxing the American people. It should tax less and allow the states to tax more so at least the states can use its people’s money to serve their interests; and 

Whereas, the responsibility over education was designated to the state government by the people of North Carolina in their state constitution. It has no business being delegated to an un-elected, un-accountable group of persons who are administrative in function; and

Whereas, Common Core was adopted, like Obamacare was by the US House, by a group of public servants who did not read it or due any form of due diligence, which is rightfully inferred and expected in their position; and

Whereas, Common Core was adopted solely for the purposes of applying for and acquiring federal “Race to the Top” funding. It had nothing to do with ownership and responsibility of education to the citizens of the State. By placing funding before the legitimate responsibility of our State through an exercise of state sovereignty and before the legitimate interests of parents who want accountability and a voice in their children’s education, the state Board of Education has taken the carrot of coercion that puts our state under the power of an organization that thinks it knows better than the people and officials of North Carolina; and

WHEREAS, Common Core will force consistency and uniformity across the nation. As long as the States are bribed and coerced into adopting a national one-size-fits-all education scheme, then education in general (and in North Carolina specifically) will suffer severely because the states, as 50 independent laboratories of experimentation, will be precluded from trying to innovate and improve education and find solutions to the problems that plague our current education system (in other words, this imposed uniformity will stifle the innovation that federalism fosters); and

Therefore, let it be –

RESOLVED, that the Pitt County GOP demands that the state Board of Education and our state legislators acknowledge and meaningfully address these criticisms of the Common Core Standards; and

RESOLVED, that the Pitt County GOP rejects the collection of personal student data for any non-educational purpose without the prior written consent of an adult student or a child student’s parent and that it rejects the sharing of such personal data, without the prior written consent of an adult student or a child student’s parent, with any person or entity other than schools or education agencies within the state; and

RESOLVED, that the Pitt County GOP emphatically urges our Legislators to get further involved in the current debate over Common Core, to halt implementation of the standards while a state initiative is pursued to do the due diligence that the state Board of Education failed to do and perhaps take an independent state-based approach to the improvement of our education system, and to eventually introduce legislation to remove this system permanently from our schools in North Carolina.

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As We Recognize the Anniversary of Roe v. Wade

Fetus (face, sucking thumb)

 

 

 

 

 

 

 

by Diane Rufino, January 22, 2014

On the Anniversary of Roe v. Wade, we take stock of how the high court has repeatedly twisted the Constitution to undermine family values and to negate the benefits of federalism.

More and more we hear people complain of being forced to live their lives according to dictates and mandates by the government that are morally reprehensible to them. More and more we hear entire states suggest that it would be better for their self-interest if they separated from the United States. The values of North Carolina are not the values (thank God!) of New York.  The values of South Carolina are not the values of California. And the values of Texas are not the values of New Jersey. And if the vision of our Founding Fathers, as memorialized in the federal design of government and in the Tenth Amendment, were respected today by the federal government and particularly the Supreme Court, each state would be free to embrace the values that their people chose. We would have 50 different “communities,” each offering their citizens the opportunity to live as they see fit and as would most effectively promote their “pursuit of happiness.”  So, if a family in New York decided that the values in that state were counter-productive to the raising and education of their children, for example, they might have the opportunity to move to another state where conditions and values more closely suit the philosophy that best defines their life.

How did we get this “one-size-fits-all” approach to the several states?  There is only one authority that has the power to do so – the federal government.  The government, through its commandeering of the Court system and its exclusive power to define the provisions and powers listed in the Constitution, has broken down the boundaries that allow each state to remain unique.  The same government that embraces diversity in human beings denies diversity in the individual states. Without a doubt, the Court has used this power to its fullest advantage, not only to centralize more power in its three branches and to weaken the States, but also to engineer a new social order. The new social order has signaled a decline in America. The “one-size-fits-all” approach has caused Americans great frustration because it offers them no alternatives.  In nearly every aspect of their lives, aside from physical address and scenery, people are being told they have only ONE WAY to live their lives. They have to conform to ONE WAY of thinking. Under the guise of tolerance, they are FORCED to embrace policies that offend rights of conscience and offend traditional notions of decency and conduct.

On this 41st anniversary of Roe v. Wade, I thought we might take a look at this case and see how the Court furthered its goal to re-engineer American society and to re-prioritize our national values.

On January 22, 1973, seven non-elected members of the US Supreme Court handed down the Roe v. Wade decision – a decision that rivals, in utter disgust, the holding of Dred Scott.  Both cases determine (or should I say, undermine) the worth of a class of human beings. But aside from that, the question is this:  Was the issue at stake one for the federal government to decide or one for the States?

The question before the Court was whether the US Constitution embraces the right of a woman to have an abortion. Norma McCorvey, known in court documents as Jane ROE, was a single woman who became pregnant and then sought to have an abortion. Texas law at the time (which dated back to 1854) did not allow a woman to have an abortion and terminate a pregnancy, unless that pregnancy threatened the life of the mother. She sued in order to prevent Dallas Attorney General Henry Wade from enforcing that law and hopefully to invalidate the law. Well, that should be clarified.  She didn’t want to sue.  It was only when two lawyers representing a Womans’ Rights activist group approached her and convinced her to sue and challenge the abortion statute that she agreed to be “their girl.”  The ambitious lawyers argued that McCorvey’s ability to control her fertility should be recognized and protected by the Bill of Rights (thereby safe from government action to violate it, and through the 14th amendment, safe from any state action as well).  In other words, they asked the Court to recognize a woman’s right to control her fertility, even after a child has been created.

Why didn’t anyone argue that she already has the power and the right to control her fertility. It’s called “consent or non-consent to sexual intercourse.”  The power lies with her.  She holds the power to have children – thanks to the Laws of Nature.  And she also holds the power as to when she will have those children.  If she decides to engage in sexual activity with protection and that protection fails, she has the option of immediately addressing the situation.  After all, a fertilized egg doesn’t immediately begin its program to create life. Even after 12 hours after conception, the fertilized egg cell still remains a single cell.  Only after approximately 30 hours does it finally begin to divide from one cell into 2 cells.  And then another 15 or so hours after that, it divides again, to yield four cells.  At the end of three days, the conception event is merely a ball of 16 cells. Does that group of 16 cells establish “life”?   (That, fortunately or unfortunately, is not the question of this piece).

Issues of marriage and family are ones rightfully reserved to the States. It has always been so.  The federal government knows this and the justices of the Supreme Court know this too.  But by finding a new provision in the Bill of Rights – one not expressly articulated – the Court was able to make universal policy on abortion. That “invisible” provision is the right to Privacy.  Has anyone read the Bill of Rights lately?  Has anyone found that one listed?  I think if our Founders wanted the bundle of rights embraced by privacy in general, that amendment would have been one of those included.  The Supreme Court rejected the argument that the right to an abortion is one embraced by the Ninth Amendment.  As mentioned above, a woman has always had the right to control her fertility. It’s called consent and non-consent.  That’s why abortion laws have always contained exceptions for cases when the woman has been raped. The right to an abortion is a distinct right.

The bigger issue in Roe v. Wade, as is clear from the decision and later comments by Justice Sandra Day O’Connor and Justice Ruth Bader Ginsburg, was the ability of women to compete equally in the workforce.  Women cannot compete equally if they are continually “held back” by an unwanted pregnancy. That was the issue at the heart of Roe v. Wade – not the definition of life or the right to life. The particulars of how they got that issue to the Court is what makes this case so very disturbing.  Womens’ Rights activists used the issue at stake in the case to sacrifice the lives of unborn children to advance their agenda….  The same agenda that the government also felt compelled to promote.

Here are some of the arguments that the supporters of Roe advocated as being vital to a Woman’s Right to Terminate a Pregnancy:  They said the right to an abortion helps to preserve women’s rights, her personal freedom, and her privacy. A denial of the right, they argued, would be condemn women to compulsory motherhood and ‘involuntary servitude’ in violation of the Thirteenth Amendment.

McCorvey was single at the time of her pregnancy. She was a drug abuser and had left her husband (and two children). After her third pregnancy (at issue in the lawsuit), which ended in the child’s birth (because of the length of the case), she gave up the child for adoption and went on to become a lesbian for awhile.  It’s nice that such people who have such a problem conforming their conduct are the ones that dominate our courts and are responsible for the social engineering that has defined the new America.  Where is the notion that laws are supposed to promote good and productive behavior and discourage bad and unproductive behavior?

How sad that our nation’s highest court was able to “stretch” and re-define the US Constitution to find rights for women to terminate an unwanted pregnancy but continues to refuse to find the same latitude in the Constitution to find that an unborn child has any rights at all.  (Sure the decision holds that the right to an abortion is not absolute and it has to be balanced against the State’s countervailing interests in preserving the health of the woman and in protecting the “potential” life of the unborn child, but for all practical purposes and in light of subsequent cases that emphatically state that obstacles to a woman’s right to an abortion on demand are unconstitutional, the right to an abortion is absolute).  How sad that we have to read accounts of fully-formed babies being aborted and terminated. (that is, KILLED). Termination is what you do to an employee or a contract.  Murder and killing is what you do to a living human being that intentionally deprives it of its life.  How sad that we have to be a country divided among people who value life all life and those who value life except that which grows inside a woman that happens to burden her ambitions or complicate her life.

As it stands today, every woman in the United States has the legal right to obtain an abortion in all 50 states, through all nine months of pregnancy, for virtually any reason at all.  After all, the autonomous decision to have such is built into the Constitution.  And the 14th Amendment incorporates the rights as against the States as well (even though the 14th Amendment requires each incorporated right to be one that is historically rooted in our American notion of ordered liberty).  All of this is the legacy of Roe v. Wade.  As John T. Noonan, senior circuit judge on the Ninth Circuit Court of Appeals, wrote: “Roe v. Wade may stand as the most radical decision ever issued by the Supreme Court.”

If the Court had only the backbone and conviction to respect the Tenth Amendment and the issues that traditionally belong to the individual states, the issue of abortion could have been decided by the individual states.  Chances are that New York and other liberal states would embrace such a right (at the expense of the helpless unborn) while the states populated by people who respect all life would likely take a different approach….  They might likely reserve abortion in instances when the life of the mother is certainly at serious risk, or they might have programs of adoption for those who are unwilling to keep the child they give birth to, or they might have a robust Church communities that develop programs to care for the children of unwanted pregnancies, or maybe, just maybe, hey might have aggressive public school programs and social programs that EMPHASIZE and promote abstinence.

The point is that the people of each state have a right – a reserved right – to determine issues of social policy within their borders. Each state has the right to guide and determine the kind of citizen it would like to live within its borders (that’s why education is so important as an state initiative) and the kinds of communities (absent any glaring true constitutional violations) to support them.

So, on this 41st anniversary of Roe v. Wade, we have to ponder the consequences of the decision.  We have legally declared that a class of human beings has no legal rights (as Dred Scott did to African-Americans) and we have condemned millions to torture and death, simply for the opportunity for women to compete equally with men in the workforce.  As George Bush once said: “The fingers and toes and beating hearts that we can see on an unborn child’s ultrasound come with something that we cannot see… a soul.”  We have to be disgusted at both the decision itself and the legal wrangling that our highest court used to usurp state authority and further create the “one-size-fits-all” degenerate social state that we have now.

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Nullification vs. Article V Constitutional Convention: Where is the Honest and Open Discussion?

Mark Levin (with smirk)

 

 

 

 

 

 

by Diane Rufino, January 5, 2014

When the original 13 states came together to discuss the possibility of establishing a confederacy, at the urging of Benjamin Franklin (“Join or Die”), they did so with a great deal of hope, but also a great deal of trepidation. The hope was that a federal government might be formed that could provide greater security and stability to the colonies.  The hope was that it might handle the few issues that were common to all the states but which could not be dealt with by the states individually. The fears, on the other hand, were that this government might come to gain an enormous amount of power; that this power might come to be concentrated in the hands of very few; and that the federal government as a whole might end up overreaching its authority and end up meddling in affairs that ought rightly to be left to the states and the various local governments (if not individuals themselves).

The Constitution created a limited government, which is evidenced in four obvious ways: (1) The Constitution was framed in such a way that the power of the federal government would be split between three separate branches – each acting as a check-and-balance on the power of the others; (2) The power of the federal government as a whole was limited to certain specific areas;(3) Government power structure was split between two co-equal sovereigns – the individual states and the federal government (emphasized or restated by the Tenth Amendment); and (4) A Bill of Rights (“further declaratory statements and restrictive clauses to prevent the government from misconstruing or abusing its powers..”) to put further limitations on government power.

For 200 years, this structure has been eroded, always at the hand of the federal government. After numerous overt acts of usurpation, constitutional amendments, and loose interpretations of the Constitution itself, each of the branches of government has managed to seize more power than it was ever meant to have. Now, as we see and feel most acutely, the federal government involves itself in matters that are neither federal in nature nor are subject to its jurisdiction.  It insinuates itself into virtually every aspect of public and private life, including political, economic, and social.  When we listen to a young mother in Alabama cry because the new healthcare mandate has increased her insurance premiums each month by over $100 and has presented her with a dilemma that is causing her great heartache and distress (she wants to work and do the right thing, but if she does, she can’t afford the increase in healthcare premiums, and so she is faced with the choice that puts and her family on welfare), then we understand how destructive the government has become and how far it has strayed from its intended purpose.

Those who support Nullification have put the alert out years ago. They assert that the federal government can rightfully be divested of such unconstitutional power by having the States call the government out on its conduct and refusing to enforce unconstitutional laws. But Nullification is not a term or a concept that the average American has heard before and so it has not been roundly embraced.  But it is catching on finally. In fact, support is growing exponentially. As more and more people (Thomas Woods and Mike Church, for example) and groups (The Tenth Amendment Center) educate those who are willing to listen, audiences are finding that it makes sense and is indeed a constitutional and viable remedy.

And then there are others, such as famed radio personality, Mark Levin, who advocate for a different approach.  Mr. Levin recently wrote a book entitled “The Liberty Amendments: Restoring the American Republic,” in which he proposes what he believes is the ONLY viable solution to restoring constitutional governance, which is an Article V State Convention.

In his book, Mr. Levin writes:

I undertook this project not because I believe the Constitution, as originally structured, is outdated and outmoded, thereby requiring modernization through amendments, but because of the opposite – that is, the necessity and urgency of restoring constitutional republicanism and preserving the civil society from the growing authoritarianism of a federal Leviathan.  The Statists have been successful in their century-long march to disfigure mangle the constitutional order and undo the social compact. To disclaim the Statists’ campaign and aims is to imprudently ignore the inventions and schemes hatched and promoted openly by their philosophers, experts, and academics, and the coercive application of their designs on the citizenry by a delusional governing elite. Their handiwork is omnipresent, for all to see – a centralized and consolidated government with a ubiquitous network of laws and rules actively suppressing individual initiative, self-interest, and success in the name of the greater good and on behalf of the larger community. The nation has entered an age of post-constitutional soft tyranny

Unlike the modern Statist, who defies, ignores, or rewrites the Constitution for the purpose of evasion, I propose that we, the people, take a closer look at the Constitution for our preservation.  The Constitution itself provides the means for restoring self-government and averting societal catastrophe in Article V.  Article V sets for the two processes for amending the Constitution, the second of which I have emphasized in italics:

The Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two-thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States or by Conventions in three-fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress….”

Importantly, in neither case does the Article V amendment process provide for a constitutional convention. The second method, involving the direct application of two-thirds of the state legislatures for a Convention for proposing Amendments, which would thereafter also require a three-fourths ratification vote by the states, has been tried in the past but without success.  Today it sits dormant.

The fact is that Article V expressly grants state legislatures significant authority to rebalance the constitutional structure for the purpose of restoring our founding principles should the federal government shed its limitations, abandon its original purpose, and grow too powerful, as many delegates in Philadelphia and the state conventions had worried it might.   [Levin, pp. 1-13]

Levin then goes on to propose a set of eleven (11) Amendments – which he terms “Liberty Amendments” – that an Article V Convention might want to propose in order to rebalance the government (the creature created by the Constitution):  These proposed Amendments include:  (1) term limits for members of Congress; (2) the election of Senators to be returned to state legislatures; (3) term limits for Supreme Court Justices (and the opportunity for federal and state legislatures to override Supreme Court decisions with a supermajority); (4) limits on federal spending (with an eye to curbing federal debt); (5) limits on taxation; (6) limits on how much power Congress can delegate to the federal bureaucracy; (7) limiting the federal government from interfering with economic activity that does not pertain to interstate or international trade; (8) requiring the government to compensate property owners for the devaluation of property caused by regulations; (9) allowing the states to amend the constitution directly (without having to go through Congress); (10) granting states the right to overturn the laws and regulations of Congress with a supermajority;  and (11) requiring voters to produce photo identification at election booths.

Notice that Mr. Levin writes that “in neither case does the Article V amendment process provide for a constitutional convention.”  Why would he include that statement?  Both conservatives and liberals have routinely referred to an Article V “Convention for proposing Amendments” as a “Constitutional Convention” or Con-Con for well over 30 years, and likely much longer.  Is it possible that they ALL have mistakenly assumed that the words “constitutional convention” are found in Article V?  Is it possible the government itself is also mistaken?  When the Senate Subcommittee on the Constitution of the Committee on the Judiciary held a hearing on November 29, 1979, regarding the role of Congress in calling an Article V convention, the official name of the hearing as published by the Government Printing Office in a 1,372-page document was “Constitutional Convention Procedures.” This hearing was held because the number of states petitioning Congress to hold an Article V convention to propose a balanced budget amendment was rapidly approaching the necessary 34 states.

And what about the “populist lovefest,” better known as the Harvard Conference on the Constitutional Convention, held at Harvard on September 24-25, 2011, which was cosponsored by the Harvard Law School and (surprisingly) by the Tea Party Patriots as well?  Of course, Levin’s book “The Liberty Amendments” hadn’t been published yet, so the people at Harvard and the Tea Party Patriots didn’t realize that they were using a forbidden phrase, “constitutional convention,” to refer to an Article V convention.

Perhaps it’s worthwhile to take a look at that Conference and watch videos of the various panel discussions to understand why holding a constitutional convention could open Pandora’s Box.  The host of the Conference, Harvard Professor Lawrence Lessig, and the moderator of the Closing Panel, Richard Parker, both committed populists, advocated for greater democracy in our country. They believe more and more issues should be decided by popular vote.  (Parker can trace his political history back to the 1960s organization, Students for a Democratic Society).  They believe that holding an Article V constitutional convention will help get them where they want to go.

Perhaps the reason Levin wants to deny the validity of the phrase “constitutional convention” is that one of the most persuasive arguments against holding such a convention is based on the contention, the criticism, and indeed the fear that such a convention could become a “runaway” convention based either on the inherent nature of “constitutional conventions” or on what transpired at our original “Constitutional Convention” in 1787.

How is it that Mr. Levin is convinced that an Article V convention could never become a “runaway” convention?  On page 15 of his book he writes: “I was originally skeptical of amending the Constitution by the state convention process. I fretted it could turn into a runaway convention process…. However, today I am a confident and enthusiastic advocate for the process. The text of Article V makes clear that there is a serious check in place. Whether the product of Congress or a convention, a proposed amendment has no effect at all unless ‘ratified by the legislatures of three fourths of the several States or by Conventions in three fourths thereof…’  This should extinguish anxiety that the state convention process could hijack the Constitution.”

So, in this excerpt, Levin admits that he shares the concerns of others that an Article V convention could turn into a “runaway convention.”  Yet he is confident that he has overcome those concerns with his belief that “Article V makes clear that there is a serious check in place,” namely the requirement of ratification of amendments by three-fourths of the states. There are several reasons why Levin should not be so assured that this is a “serious check” in place to stop a runaway convention.  Larry Greenley points these reasons out in his article, “Levin’s Risky Proposal: A Constitutional Convention”:

First, the “ratification by three-fourths of the States” requirement of Article V already has failed to prevent undesirable amendments from being ratified. Consider the 16th Amendment (the federal income tax), the 17th Amendment (direct election of senators), and the 18th Amendment (prohibition). All three were ratified by at least three-fourths of the states, but most constitutionalists would likely agree that all three were bad amendments and should not have been ratified. In particular, many constitutionalists think that changing the method of choosing U.S. senators from appointment by state legislatures to direct election by the voters in each state as provided by the 17th Amendment has been extremely damaging to our constitutional republic. James Madison spoke ever so strongly for this important design feature at the Virginia Ratifying Convention, in his rebuttal of Patrick Henry who accused the Constitution of potentially granting too much power to the federal government.  “The deliberations of the members of the Federal House of Representatives, will be directed to the interests of the people of America. As to the other branch, the Senators will be appointed by the State Legislatures, and secures AN ABSOLUTE DEPENDENCE OF THE FORMER ON THE LATTER.”  The Senate was a direct “federal” element within the very design of the federal government. Its power to refuse to approve a legislative act of the House that is against the reserved powers and interests of States is precisely what the doctrine of Nullification provides.

Second, it is hard to predict just how much pressure the American public can put on state legislators or state convention delegates to get some future undesirable amendment or amendments ratified by the three-fourths rule. We all know what happens when big money and special interests groups send out their tentacles. When big money, special interest groups, and political power pour in to try to influence the delegate-selection process and the convention business itself, the people lose their voice.  Experience has shown that we can’t trust public servants once they go behind closed doors. We saw what happened with the healthcare bill.

Third, it is quite possible that an Article V constitutional convention would specify some new method of ratification for its proposed amendments. After all, our original Constitutional Convention in 1787, an important precedent for any future constitutional convention, changed the ratification procedure for the new Constitution from the unanimous approval of all 13 state legislatures required by the Articles of Confederation to the approval by 9 state conventions in Article VII of the new Constitution.

But for those who are not quite comforted by Levin’s argument that Article V provides the very means to control its convention, he offers still another method to ease our concerns about a runaway convention. On page 16, he quotes from Robert G. Natelson, a former professor of law at the University of Montana: “[An Article V] convention for proposing amendments is a federal convention; it is a creature of the states or, more specifically, of the state legislatures. And it is a limited-purpose convention. It is not designed to set up an entirely new constitution or a new form of government.”  Too many others, including notable intellectuals, constitutional scholars, and even former US Supreme Court justices beg to disagree on this point.

Many constitutionalists will also agree that Levin is encouraging Americans to play with fire by promoting a constitutional convention. Just because the Constitution authorizes Article V conventions to amend the Constitution doesn’t mean that it would be wise at this time in our nation’s history to call one.

While pro-Article V convention enthusiasts tell us that this is a great time for an Article V convention because the Republican Party controls 26 of the 50 state legislatures (the Democrats control 18, five are split, and one is non-partisan), and therefore could surely block the ratification of any harmful amendments proposed by an Article V convention, they are omitting from this analysis that very many of the Republican state legislators are not constitutionalists, and could end up in alliance with Democrats to ratify some harmful amendments. Not to mention the likelihood that constitutionalists would be in the minority at the convention for proposing amendments itself.

There is no doubt that Mr. Levin has done his homework with respect to the Article V Convention.  But it is clear from the strong and sometimes rabid response to his book that he has not made the case strong enough to quell the legitimate fears of many who believe such a Convention is akin to opening a can of worms. I use the expression because it means: “something that (often unexpectedly) sets in motion that which has unanticipated and wide-reaching consequences.”  Or as TN Tenth Amendment Center leader Michael Lotfi puts it: “An Article V constitutional convention of the states is not the right answer; it is the bullet to a loaded revolver pointed at the Constitution.”  Knowing that the Nullification movement is gaining momentum, Levin made it a point, in promoting his book, to try to discredit the “rightful remedy” of Jefferson and the “duty of the states” approach of Madison.  He did not do it in a civil, educated manner but rather resorted to referring to Nullification as “idiocy” and Nullifers as “kooks.”  I imagine that if Thomas Jefferson were listening to Mark Levin’s assertion of how to address a government that willingly and defiantly passes unconstitutional laws, he would think he was a “kook.”

I would also think that Jefferson would conclude that people who think narrowly, as Levin does in his book and in his commentary to promote his book (including the rejection of nullification) are incapable of saving a republic that is on the brink of imploding.

Thomas Jefferson and James Madison

The only object upon which the Constitution acts is the federal government. It is its playbook; it defines its jurisdiction. It is also its restraining order. Yet each time the government did not wish to be confined by it, it used one of the three branches (most notably the Supreme Court) to reinterpret it and enlarge government powers, regardless that the ONLY way the government can rightfully be altered is by amendments (Article V). The point is that the government has refused to adhere to the limitations set forth in the Constitution…. the limitations that the States demanded and relied upon when debating and deciding whether to relinquish some of their sovereign power and ratify the compact that formed the government.  So here is Levin’s solution:  Even though the Constitution clearly defines the government’s powers and sets forth limitations, and even though the government has repeatedly and systematically refused to adhere to those limitations, he believes the only way to limit the government going forward is to make the States go through a series of hurdles (Article V’s requirements) in order to try to add a new set of restrictive amendments.  Levin himself has pointed out that such a State Convention may not successfully happen and even if it does, it may take up to 20 years or more add such amendments.  We can predict what will happen.  The government will ignore them or quickly find a way to erode them or get around them.  There is no guarantee that the amendments will restore the proper balance of power in government.  According to Levin, the parties who have been the victims of the government’s usurpations, the States and the People themselves (the rightful depositories or reservations of sovereign power) – have no other recourse or remedy except to take their slim chances with an Article V State Convention, a remedy that has NEVER been used before and hence has no proven record of success.  In other words, the States and the People MUST abide strictly by the provisions of the Constitution when the federal government has never done so.  Levin stands by his proposition even though the people of the states already have the extra-constitutional right to convene a constitutional convention by virtue of the Declaration of Independence. That’s exactly what the Philadelphia Convention was…  an exercise of this right (which is referred to as the Theory of Popular Sovereignty), because the Articles of Confederation created a so-called “perpetual Union.”

Article XIII of the Articles read: “Every State shall abide by the determination of the United States in Congress assembled, on all questions which by this confederation are submitted to them. And the Articles of this Confederation shall be inviolably observed by every State, and the Union shall be perpetual; nor shall any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State…..  And that the Articles thereof shall be inviolably observed by the States we respectively represent, and that the Union shall be perpetual.”

The Theory of Popular Sovereignty wasn’t just the design of men like Thomas Jefferson (VA), John Adams (MA), Benjamin Franklin (PA), Roger Sherman (CT) and Robert R. Livingston (NY), the committee appointed on June 11, 1776 by the Continental Congress to draft the Declaration of Independence, it was indeed a consensus notion among the whole of our Founding Fathers. Consider for example what Edmund Pendleton, president of the Virginia Ratifying Convention, said to the delegates on June 5, 1788:

We, the people, possessing all power, form a government, such as we think will secure happiness: and suppose, in adopting this plan, we should be mistaken in the end; where is the cause of alarm on that quarter? In the same plan we point out an easy and quiet method of reforming what may be found amiss. No, but, say gentlemen, we have put the introduction of that method in the hands of our servants, who will interrupt it from motives of self-interest. What then?… Who shall dare to resist the people? No, we will assemble in Convention; wholly recall our delegated powers, or reform them so as to prevent such abuse; and punish those servants who have perverted powers, designed for our happiness, to their own emolument.

Although there are some ambiguities in this passage, Pendleton appears to be assuring the delegates that if the Constitution turned out not to secure happiness for Americans, then it could be reformed by the “easy and quiet” methods of Article V.  However, if the Article V process were to be subverted by “our servants,” the state and federal legislators, then We the People (the sovereign people) would assemble in convention, wholly recall and reform the delegated powers of the Constitution, and punish the offending servants.

Former US Supreme Court Justice Arthur Goldberg addressed the topic of a Constitutional Convention with skeptism back in 1986.  He wrote:

As we look forward to celebrating the bicentennial of the Constitution, a few people have asked, “Why not another constitutional convention?”

I would respond by saying that one of the most serious problems Article V poses is a runaway convention.  There is no enforceable mechanism to prevent a convention from reporting out wholesale changes to our Constitution and Bill of Rights.  Moreover, the absence of any mechanism to ensure representative selection of delegates could put a runaway convention at the hands of single-issue groups whose self-interest may be contrary to our national well-being.
A constitutional convention could lead to sharp confrontations between Congress and the states. For example, Congress may frustrate the states by treating some state convention applications as invalid, or by insisting on particular parliamentary rules for a convention, or by mandating a restricted convention agenda. If a convention did run away, Congress might decline to forward to the states for ratification those proposed amendments not within the convention’s original mandate.

History has established that the Philadelphia Convention was a success, but it cannot be denied that it broke every restraint intended to limit its power and agenda.  Logic therefore compels one conclusion: Any claim that the Congress could, by statute, limit a convention’s agenda is pure speculation, and any attempt at limiting the agenda would almost certainly be unenforceable.  It would create a sense of security where none exists, and it would project a false image of unity.

Opposition to a constitutional convention at this point in our history does not indicate a distrust of the American public, but in fact recognizes the potential for mischief. We have all read about the various plans being considered for Constitutional change. Could this nation tolerate the simultaneous consideration of a parliamentary system, returning to the gold standard, gun control, ERA, school prayer, abortion vs. right to life and anti-public interest laws?

As individuals, we may well disagree on the merits of particular issues that would likely be proposed as amendments to the Constitution; however, it is my firm belief that no single issue or combination of issues is so important as to warrant jeopardizing our constitutional system of governance at this point of our history, particularly since Congress and the Supreme Court are empowered to deal with these matters.

James Madison, the father of our Constitution, recognized the perils inherent in a second constitutional convention when he said an Article V national convention would “give greater agitation to the public mind; an election into it would be courted by the most violent partisans on both sides; it would probably consist of the most heterogeneous characters; would be the very focus of that flame which has already heated too many men of all parties; would no doubt contain individuals of insidious views, who under the mask of seeking alterations popular in some parts but inadmissible in other parts of the Union might have a dangerous opportunity of sapping the very foundations of the fabric. Under all of these circumstances, it seems scarcely to be presumable that the deliberations of the body could be conducted in harmony, or terminate in the general good.  Having witnessed the difficulties and dangers experienced by the first convention which assembled under every propitious (promising) circumstance, I would tremble for the result of a second.”
Let’s turn away from this risky business of a convention, and focus on the enduring inspiration of our Constitution.

The bicentennial should be an occasion of celebrating that magnificent document. It is our basic law; our inspiration and hope, the opinion of our minds and spirit; it is our defense and protection, our teacher and our continuous example in the quest for equality, dignity and opportunity for all people in this nation. It is an instrument of practical and viable government and a declaration of faith — faith in the spirit of liberty and freedom.

Arthur Goldberg

Constitutional attorney, Publius Huldah, also rejects the Article V Convention as the effective means to restore our country to its intended constitutional republic.  She takes the position that as the rightful depositories of government power are the Individuals and resistance to tyranny is not only a natural right but a duty. She therefore supports the rightful remedy of Nullification to enforce obedience to the Constitution.  She writes, in her article Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!, that the Oath of Office, addressed in Article VI, last clause, requires both federal  and state officials to support and defend the Constitution.  This requires them to refuse to submit to – ie, to nullify! – acts of the federal government which violate the Constitution.  “This is how they “support” the Constitution!”  As to Mr. Levin’s assertion that an Article V Convention is the proper, safe, and legal mechanism to restore constitutional limitations to a government historically unwilling to abide by them, she argues that while he admitted (on pg. 15 of the book) that the process has the potential to turn into a “runaway” convention, he never successfully explained why Article V can effectively prevent that from happening.

Publius writes: “The claims of the nullification deniers have been proven to be false.  To persist in those claims – or to do as Levin seems to do and ignore the remedy of nullification – is intellectually and morally indefensible.  Instead, they continue to tell us that what we need is a “convention of the States” to propose amendments to the Constitution, and that this is the only way out. They tell us, the only way to deal with a federal government which consistently ignores and tramples over the Constitution is to amend the Constitution!   Do you see how silly that is?”

Publius Huldah

Michael Lotfi, the Associate Director of the Tennessee Tenth Amendment Center, wrote an excellent article comparing the Article V State Convention remedy of Mark Levin to Nullification, the remedy of Thomas Jefferson and James Madison (collectively, the authors of all our foundational documents, except the Articles of Confederation).  The article is entitled: Nullification vs. Article V Constitutional Convention: Why Levin is Wrong.  (See prior post on this NC TAC site).  He wrote: “Calling for a convention to amend the Constitution with amendments shows absence in sound judgment.”  Further, he wrote: “Levin proposes an Article V constitutional convention of the states as salvation. Not only is an Article V constitutional convention not the right answer, it is the bullet to a loaded revolver pointed at the Constitution.”

Lotfi talks about some of the unconstitutional laws, agencies, and actions that the government has imposed over the years – “the NSA, NDAA, ObamaCare, the Patriot Act, EPA, DOE, every war since the 1940s, federal gun laws, etc.  These laws and agencies all fly in the face of the Second, Fourth, Fifth, Sixth, Ninth, and Tenth Amendments.”  He asks how a process that potentially may take as long as 20 years but more likely won’t work at all will address these gross usurpations.  We must not forget that these amendments were adopted as EXPRESS limitations on the federal government.  The Preamble to the Bill of Rights explains it best: “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 ensure the beneficent ends of its institution.”

How is it that the government can find a way to limit the effect of the first ten amendments when those amendments were intended to limit the government and keep those particular objects OFF LIMITS with respect to the federal government?

Mr. Lotfi gives a wonderful explanation of the legitimacy of Nullification.  He writes:

The powers delegated to Congress are few and defined. The Tenth Amendment provides explicit validation for nullification, “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” (emphasis added).

In regards to nullification, does the Constitution delegate this power to the federal government? It obviously does not. Does the Constitution explicitly prohibit nullification? It does not. It can now easily be concluded that nullification is a power reserved for the people of their respective states.

The Ninth Amendment expounds even further the right to nullification. “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

Jefferson explained that nullification was a natural right belonging to the people and their respective states. Because the Constitution does not expressly prohibit nullification, the federal government cannot deny or disparage this natural right of the people.

Just as so many intellectuals have requested that Mark Levin stop the name-calling and have an intellectual, honest, and dignified debate on the topic of Nullification, Mr. Lotfi has done the same.  He ends his article with this message: “Levin is perhaps the most appreciated and admired political talk show host in America. Rightfully so, he has earned his accolades. However, with such clout comes an incredible responsibility to not only seek truth, but to display the humility and courage to admit when you are wrong.”

Michael Lotfi

Mr. Lotfi hit the nail on the head in his article with respect to Nullification. He addressed what I believe is the most powerful of the opponent’s arguments – Madison’s remarks following the Nullification crisis of 1832. Most are too uneducated or too shallow in their willingness to read more than a page of history and so they just don’t get that Madison was trying to explain that the particular situation wasn’t one that can be rightfully addressed by nullification. Nullification, at its core, requires an act by the federal government that exceeds the powers delegated to it under the Constitution. Congress rightfully has the power to legislate regarding tariffs. The Tariffs of 1828 and 1832 (tariffs of abomination) were within Congress’s rightful exercise of power. And so nullification was not the proper or rightful remedy to challenge it or to assert as the basis for non-compliance. The real argument was the one that Calhoun originally made, which rested on the Compact Nature of the States. He claimed that when the States came together and drafted the Constitution and then ratified it, they were guided by the concept of social compact. They agreed to give up some of their sovereign power (a “burden,” in contract terms) in return for the understanding that the federal government so created (the creature) would be their “common agent” and would serve them equally (the “benefit,” in contract terms). Even James Madison, and many of our other founders, acknowledged the compact nature of the Constitution. At the VA Ratifying Convention, Madison prefaced his speech with these words:  “A Federal Government is formed for the PROTECTION of its individual members.” Calhoun argued that under the compact nature of the Constitution, the common or federal government was supposed to serve all the states equally. The tariff, as you know, benefitted the North exclusively, at great detriment to the South. This unequal treatment of the Southern states is what really led to the secession of the Southern states – not the issue of slavery. Lincoln’s election simply meant “more of the same.”

Again, as Publius pointed out in her article Mark Levin Refuted: “The claims of the nullification deniers have been proven to be false.”  The truth, as she brilliantly explains, is that resistance to tyranny is a natural right (the natural right to protect one’s sovereign rights) and Nullification is the rightful tool of resistance.  Just as resistance is a natural right, nullification is the natural remedy.

Publius is a scholar and is brilliant.  Mark Levin is a scholar and is brilliant, as well.  The most brilliant men of all are Thomas Jefferson and James Madison, and if you have any doubt of that, then you are all hypocrites for living under the very free society they secured for you. The difference between scholars like Publius and Mr. Levin is which view point they choose to endorse, given their extensive knowledge and understanding. Publius is a scholar of history and of original intent. She understands that the Constitution is not a stand-alone document but is grounded in the principles outlined in the Declaration of Independence and in the doctrine of Social Compact.  She is an attorney.  Mark Levin is also an attorney and understands history. Unfortunately, he has chosen to ignore some of the background that rounds out the understanding of our founding documents.  As we are all aware, there are those who support Mark Levin and those who support those who endorse Nullification.  I am troubled that someone as brilliant as Mark Levin can so cavalierly disregard Nullification and resort to the unsophisticated approach of calling those not in his camp a bunch of kooks. This truly troubles me because I believe scholars should be above that and try to promote their points of view through robust discussion and debate. That’s how our Founding Fathers did it. And that was the climate at the Philadelphia Convention which produced the final design of our federal government. The one area that debate and discussion could not produce the just result was with respect to slavery.  Georgia and South Carolina simply refused to go along if the concession wasn’t made.  Personally, I don’t think one remedy is exclusive over the other; I think the sound approach is finding a way to REPEAL any amendment that increases the power of the federal government and destroys its original design (such as the Sixteenth, Seventeenth, and parts of the Fourteenth amendments) while using NULLIFICATION to frustrate the enforcement of any unconstitutional federal law, policy, or court decision. I think the sound approach is recognizing the POWER that both approaches offer in limiting the power and reach of the federal government (outside its constitutional limits) and using them BOTH for the effective transfer of power back to the People. That’s what it’s all about, right??

And so, with this article, I want to ask all of you to please put the good of the country first and please find the untainted authorities to educate yourselves on Nullification. Jefferson and Madison are good starts – Read the Kentucky Resolutions of 1798 and 1799 and the Virginia Resolution of 1798, as well as Madison’s Virginia’s Report of 1800, but most importantly, read the circumstances under which Jefferson and Madison sought to re-assert the compact/founding principles of nullification…. the government was starting to trample on our Bill of Rights!!)  Nullification is a good way to hold the federal government at bay while we figure out the best ways to divest the federal government of its liberty-killing powers. There are valid criticisms of an Article V Convention, and I advance that position with the others.  If Mark Levin can PROMISE ABSOLUTELY that a group of state delegates can produce amendments that are clearly limited to transparent goals and which will LIMIT the government (and not in fact enlarge its powers, as some states seem inclined to do), then perhaps we should continue our discussion and debate on the Convention. But I don’t think he can do so.

As Joe Wolveton II, JD writes: “Enforcing the Constitution and demanding that states stand up to their would-be federal overlords accomplishes the same goal as Levin’s proposed con-con without putting the Constitution so close to the shredder that an Article V convention could become.”

Mark Levin may have personal popularity, powerful friends in the media, the ability to shut down much of the criticism of his book, and a powerful bully pulpit in his radio show and his guest appearances on the top news outlet, but he doesn’t have the same understanding of liberty and its preservation as Thomas Jefferson, James Madison, and our other Founding Fathers had.

Nullification must continue not only to be the remedy of choice, but of right.

“No matter the soothing words and the slate of scholars standing with Levin,” Wolverton emphasizes: “the convention they’re calling for would be beyond the control of the people or their representatives and could result in the proposal by the assembled delegates of potentially fatal and irreversible alterations to our Constitution that could very well end up being ratified.”

References:

Mark Levin, The Liberty Amendments: Restoring the American Republic, New York, N.Y.: Threshold Editions, 2013, 272 pages, hardcover.

Arthur Goldberg (former US Supreme Court Justice), “Steer Clear of Constitutional Convention,” Miami Herald, September 14, 1986.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Joe Wolverton II, JD, “Levin, Limbaugh, Hannity Calling for Con-Con, “ The New American, August 22, 2013.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Larry Greenley, “Levin’s Risky Proposal: A Constitutional Convention,” The New American,  October 27, 2013.  http://www.governamerica.com/issues/domestic-issues/21-constitutional-convention?start=10

Michael Lotfi, “Nullification vs. Article V Constitutional Convention: Why Levin is Wrong,” The Washington Times, December 27, 2013.  http://communities.washingtontimes.com/neighborhood/american-millennial/2013/dec/27/nullification-vs-article-v-constitutional-conventi/

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification, Not Amendments!”.  https://publiushuldah.wordpress.com/2013/09/15/mark-levin-refuted-keep-the-feds-in-check-with-nullification-not-amendments/

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How a Republic Dies

ROME (Vorenus)

 

 

 

 

by Diane Rufino, December 30, 2013

One of my all-time favorite HBO series is ROME, starring Kevin McKidd and Ray Stevenson.  Borrowing on a theme similar to Forrest Gump, the series follows the journey of two men in Julius Caesar’s Roman legion who seem to find themselves making history wherever they go. The soldiers are Lucius Vorenus (McKidd) and Titus Pullo (Stevenson).  Although Vorenus and Pullo are real centurions who displayed outstanding bravery and valor in battle and were included in Caesar’s war journals, their journeys and experiences in the series are the creation of the writers. ROME chronicles the period in Roman history when the people lost their republic. Aside from the entertainment provided by Vorenus and Pullo, who are often violent and crude, the story showed how the Senate tried to stand up to the ambitions of men like Julius Caesar and Octavian (who renamed himself Augustus Caesar) to protect the people’s hand and voice in government.

Perhaps I am drawn to the series because of my Italian heritage or perhaps it is because of Rome’s history as a republic and its impact on our Founding Fathers when they sat down to fashion a government to serve the people and protect their inalienable sovereign rights.

Rome was established as a republic in 509 B.C. when it was a mere city-state.  It was easy to manage and government was responsive to the people. Originally established as an advisory board composed of the heads of patrician families (wealthy landowners), the Senate soon became the most powerful organ of republican government and the only body of state that could develop consistent long-term policy. It was involved in virtually all public matters, but its most important responsibilities were in foreign policy and financial administration.  Roman citizens had a voice in government by electing Senators who represented them and were accountable to them.

After the second Punic War (218 – 201 B.C.), when Rome defeated Carthage, Rome’s economy soared and trade grew.  Rich landowners and merchants were able to buy up most of the land in the county.  Eventually, they would begin to have more and more political power.  Under Roman law, only landowners could serve in the military, but as it happened, the rich wouldn’t serve in the army. The number of soldiers dwindled and this caused instability in the Roman military.

In 133 B.C., Tiberius Gracchus, who was elected to the position of tribune, proposed several laws to reshape Rome into the republic that it had been intended and that it had once been. The proposed laws included giving an equal share of land to all citizens, limiting the amount of land one person could have, and allowing every free Roman citizen to vote (at the time, only residents of Rome could vote).  Gracchus’ ideas were very controversial for the time and when Romans began to riot, he was killed. His brother Gaius took the position of tribune in 123 B.C. and he attempted to pass the same laws.  He too was murdered.

General Marius ushered in more reforms in 104 B.C.  He established a new law which stated that people did not have to own land to be a soldier. This served to benefit the military.  However, in return for their service, soldiers began to demand that they be given land.  This required Marius to use his influence on the Senate, for at the time, there was no provision to grant soldiers land.  It was General Marius versus the Senate.  The result was that soldiers became very loyal to Marius; they trusted him.  In fact, they were more loyal to him than to the Senate. It was from this point on that generals began to gain significant political power in Rome. Generals who commanded the legions and who were popular with them could become quite powerful.

By about 79-78 B.C., Rome was temporarily back to being ruled by the Senate. Meanwhile, Pompey, the most distinguished general of the time, was gaining public favor from his many military victories. At the same time, Crassus, the wealthiest man in Rome, also gained much popularity from the common people, for defeating a large slave uprising. Both Pompey and Crassus were ambitious and had designs on ruling Rome.  But still another prominent general was also gaining much popularity.  That was Julius Caesar.  Pompey, Crassus, and Caesar would make a secret alliance to work together to gain control over the Senate. This alliance would become known as the First Triumvirate.

But soon ambition, politics, and battle would destroy that union. Caesar was elected consul in 60 B.C.  He proposed laws that would gain the triumvirate even more power.  When the Senate tried to oppose these laws, Crassus and Caesar resorted to intimidation and violence in order to get them passed.  When Crassus was killed in battle in 53 B.C., the triumvirate was destroyed and only two were left – Caesar and Pompey, who were good friends. (Caesar even betrothed his beautiful daughter Julia to Pompey in order to strengthen the political alliance between them).  Julius Caesar left Rome after his term as consul ended to take up a governorship he demanded in southern France.  Ignoring the orders of the Senate, he raised his own army, and led a path of conquest throughout all of Gaul. Marc Antony, another brilliant general, was with Caesar at this time in Gaul and was making a name for himself.

After eight years, word grew that Julius Caesar was returning home. The Senate was afraid that he would bring his army and march on Rome and pleaded with Pompey to organize resistance. But Pompey was torn.  Caesar was his friend.  His wife was Caesar’s daughter and he loved her deeply.  But Pompey did as asked and began to build an army. Unfortunately he could not do so in time and when Caesar marched into Rome, Pompey was forced to flee.  Caesar eventually bought off, threatened, or intimidated members of the Senate, and at his command, they crowned him Emperor and gave him concentrated powers for a period of ten years.  The people began to call him a tyrant.  Senators called him a tyrant.  Caesar countered by assuring them that he needed the power “to save the republic” and that after the ten years was up he would turn control back to the Senate.  He didn’t trust the Senate to rule; instead, he thought he knew what was best for the people… and for Rome.

Julius Caesar was assassinated on March 15 – the “Ides of March” – by senators Brutus and Cassius, among many others, who plotted among each other to rid Rome of the tyrant.  They descended upon him in the Senate, stabbing him twenty-three times.  Second-in-command, Marc Antony, was also supposed to be assassinated, from what I read.  As the ROME series was able to convey, the conspirators believed that the assassination was a noble act because they were rescuing the empire from the designs of a dictator and delivering power back to the people. The Senate would once again regain control of Rome. The People would once again have their government back.

Well, what followed was not much better.

Immediately, civil war broke out between two factions – the assassins (republicans), including Brutus and Cassius, and the Caesarians, led by Marc Antony and Octavian. Antony and another strong general, Marcus Lepidus, unofficially established their power by intimidation through their armies. Octavian, the son of a noble Roman family, and nephew to Julius Caesar, was named as Caesar’s sole heir in his will. The ROME series spent considerable time portraying the mindset and ambitions of Octavian after Caesar’s demise.  Young Octavian (a mere teen) approached the Senate leader Marcus Tullius Cicero, the foremost lawyer of the day and the greatest defender of the republic (and the man whose writings taught our Founders about “Natural Law”) and struck up a deal.  Unknown to Cicero, the deal would have disastrous consequences.  An astute Octavian told Cicero that the people loved Caesar and harbored great anger over his death. As Caesar’s appointed heir, he could easily manipulate the people against the treacherous murderous Senate.  Furthermore, Caesar who was a good friend of Cicero’s, had appointed him and others in their leadership roles in the Senate. If the Senate was to officially declare Caesar a tyrant, as they planned to do, in order to justify the assassination and to undo his commands, then that would mean their appointments would be undone as well.  So, Cicero made a deal and appointed Octavian consul of the Senate in return for Cicero and the others keeping their positions.  Octavian then began to hatch plans for revenge against those who assassinated his uncle (now adoptive ‘father’).  Brutus and Cassius and a few of the other conspirators had already fled Rome; they left when they found out that Marc Antony survived.

In the two years that followed, Antony and Octavian each amassed great armies and consolidated power in various parts of the empire – Antony in the east and Octavian in the west.  Each would have plans to consolidate power and take over Rome.  Antony understood that the conspirators, many from powerful and noble Roman families, would have to be killed so they could not return to Rome, reclaim their power, and try to turn the people again him and Octavian just wanted them killed out of revenge. And so both Antony and Octavian joined together to go after them. Some of the conspirators committed suicide but the last ones to remain were defeated at Philippi in 42 B.C.  Brutus and Cassius, the last to survive, watched this defeat and then killed themselves as well.

The victors returned to Rome and the Second Triumvirate was formed, consisting of Mark Antony, Lepidus, and Octavian. This triumvirate was formally constituted. In effect, it sidelined the consuls and the Senate and effectively signaled the death of the Republic. The three men, Antony, Lepidus, and Octavian used the force of the army and swept the Senate with terror, killing Cicero and others.  They chopped off the great Cicero’s hands and nailed them to the Senate door.  In fact, they used a Roman law known as “proscription” as an incentive to kill Cicero and the others.  “Proscription” was a Roman policy that was revived by the Second Triumvirate to label political enemies as “enemies of the state” which would then allow them to confiscate their money and property to pay the soldiers.

[NOTE:  Proscription was developed by Sulla (a general who ruled from about 82-79 B.C.)  as a way to dispose of the property of those who were ‘condemned.’  By "condemned," they meant marked for assassination (as “enemies of the state”). The proscribed individuals were called proscripti. The law the Romans passed to grant Sulla this extraordinary power was called lex Cornelia de proscriptione et proscriptis and was known as the lex Cornelia. In 82 B.C. Sulla created proscription as a means of disposing of his enemies -- the supporters of Marius. He posted a list of those he wanted killed (like the "Wanted Dead or Alive" posters of the Old West) and upon their death, their property was confiscated and sold. Proscription was adopted again under the second triumvirate in 43 B.C. Again, Cicero was a victim of this second proscription.  Supposedly, Octavian said: "We should concentrate on the rich, especially some of the fabulously rich. If enough men are proscribed, the amount of cash will add up quickly."]

Initially, Marc Antony took Caesar’s place, but Octavian, who somehow held the upper hand (perhaps because he was hand-picked by Julius Caesar as his heir), was suspicious of him and wanted him out of Rome.  There is one account that Octavian forced Antony to marry his sister, Octavia, and Antony did not honor her properly.  There is also another account that Octavian was resentful that Antony was so completely adored and beloved by the people of Rome and fearful of the intense loyalty that Antony’s men had for him. They thought of him as a god.  And so, Octavian forced him to accept an appointment to govern eastern Rome, which included Egypt (conquered by Julius Caesar).  This is where the famous story of Antony and Cleopatra comes from.  Antony quickly became the lover of Cleopatra, the exotic Ptolemeic queen of Egypt (meaning that she is a descendent of General Ptolemy, who served under Alexander the Great of Macedonia, and then became the ruler of Egypt – 323-283 B.C.), even though he was still married to Octavia.  Antony and Cleopatra had children together. He also supposedly promised her roman land (an act of treason at the time).  Octavian used all that information to make the case to the Roman people and to the Senate that Antony had switched his allegiance and dishonored Rome.  Octavian would declare battle against him to assume sole power over Rome, which he did.  He defeated Antony at the naval Battle of Actium in 31 B.C. and when he and Cleopatra were trapped and besieged at Alexandria, they both committed suicide.  (Who can forget Elizabeth Taylor and Richard Burton as Cleopatra and Antony in the epic MGM production).

Also around this time, Octavian accused of Lepidus of attempted rebellion, stripped him of his title, and forced him into exile. With Antony and Lepidus aside and removed from power, Octavian assumed sole power and became Emperor. Rome’s republic was officially dead.  Octavian insisted on being called Caesar – Augustus Caesar – and would go on to rule for 40 years. ["Augustus" was a new title to be given to him, meaning "supreme ruler; holy, dignified or majestic]. The reign of the “Caesars” and those leaders that followed would continue to keep power concentrated in a single ruler.  The power was never returned to the people.  While the intentions of the leaders in the beginning for usurping power may have been to serve the “general welfare” of Rome, for example, by giving needy families sums of money from the national treasury or giving farm land to “deserving” people or giving grain to the people who could not find jobs or providing Gladiator games and other spectacular games for entertainment, the fact is that it was never returned properly to the people.  The people seeing that they had no say in what their leaders were doing – that the Emperors were going to do what they wanted anyway – lost interest in keeping their government honest and decent and effective.  And so the republic died.  It died from within.  Because of apathy.

As the power of the emperors grew stronger and stronger, the Roman republic became but a distant memory. The once proud Senate that had witnessed the splendid orations of Cato and Cicero became dominated and weakened year after year by the succession of dictators. It atrophied into a mere figurehead of an institution. And the people themselves became disengaged. They took the duties of citizenship far more seriously during the days of the Republic than in the dictatorships of the Caesars.  In the waning years of the republic and then into the reign of the Caesars, the populace no longer respected civic virtues and virtue in public life. Civic duty was treated as a triviality.

In these final days of the Roman republic, the empire was faced with a changing social structure and culture. There once was a time when Rome enjoyed a very ordered society. But in those final days, at the height of its conquests, its social order began to break down.

It was at this time that the mighty Roman Empire began to reach its geographical limits. It was a massive empire. As a result of its vast conquests, Rome acquired many slaves, who were then used to build most of its bridges, roads, and aqueducts.  Then they went on to take jobs in farming, mining and construction. As this cheaper labor replaced Roman citizens, unemployment grew.  Idle, unemployed, hungry people filled the capital. They were called “plebs” (or plebeians), a term originally referring to free land-owning Roman citizens, who historically had representative power in government (called Tribunes, which had the power to veto the laws of the Senate).  Later the term was used to refer to the lower, poor, common class of Roman citizens. They were apathetic and cared nothing for the governing of the empire.  As the number of plebs grew, they became a more problematic class and the dynamics in the empire changed dramatically. In the eyes of the elite, this lower class lacked morality and were typified by “their stupidity, laziness, and time-wasting.”  They were characterized as being motivated by pleasure, excess, loss of control, and a closing of the gap between genders.  The Roman satirist and poet, Juvenal, referred to them as the mob.  He said they consisted of “idlers, the dregs of every nation.”

To appease and distract the plebs, Roman emperors handed out free distributions of corn and amused them with violent gladiatorial and other contests that were held in the Coliseum and chariot races at the Circus Maximus (stadium).  The more Romans became addicted to the corn distributions and the mindless self-gratification, the more they lost the capacity to govern themselves.

Juvanal wrote: “What of the plebs?  They follow fortune, as always. Nowadays, with no vote to sell, their motto is ‘Couldn’t care less.’  There was a time when they elected generals, heads of state, commanders of legions. But now there’s only two things that concern them: bread and circuses.”  E.G. Hardy put it more bluntly: “The distribution of corn and the attractions of the games had long been drawing to Rome a host of idlers and loungers, ready for any distribution and willing to do anything but work for their own support.”  (Sound familiar?)  The Emperor, in an attempt to please and pamper the plebs, was forced to extend corn distribution and to increase the number of “festivals, holidays, and shows, which were already too numerous.”

The Roman theatre was another popular activity associated with the lower classes (unlike in Greece, where it was the center of intellectual thinking and politics).  In Rome, the theatre was counter-productive of social order, self-control, values, and morality.  It taught “the wrong things, including idleness, inactivity, corruption, and all sorts of indecency.”  Its main objective was to mock personal responsibility and productive family and social values.  (Sounds like American TV !!)

The threat posed by the plebs – that is, the decayed values and resulting social tensions – led to societal structural decline.  This is how the late Roman republic came to be characterized. Social order began to quickly erode. Roman culture was forced to accommodate a new social order.  “The decayed values of the plebs acted as the lowest common denominator in that they began to attract people of all statuses.”  In fact, that’s when the threat to social order and morality became its greatest. The people became so distracted with entertainment and personal pleasures that they no longer valued civic virtues and bowed to civil authority with unquestioned obedience.

It is this moral decay – this civic decay – that Juvenal was referring to when he sarcastically wrote that “the people that once bestowed commands, consulships, legions, and all else, now meddle no more and longs eagerly for just two things — bread and circuses.”

Those scornful words “bread and circuses,” panem et circenses in Latin, were used to describe what would become the Roman formula for the happiness and well-being of its population. In fact, it would become a political strategy unto itself.  As we can see here in the United States, it is a policy that seeks to create public approval, not through exemplary or excellent public service or public policy, but rather, through diversion, distraction, hand-outs, and/or the mere satisfaction of the immediate, shallow requirements of a populace.

In the end, Rome collapsed because the people were morally corrupted and civically unfit and irresponsible. They were simply no longer fit to guard over their government, their liberties, and their own destinies.

I wanted to tell this tale of Rome’s republic because our Founding Fathers were great students of history.  Maybe this is what our Founder’s understood all along – that republics can wither and die from apathy, willful neglect, and most importantly from human decay.  Maybe they understood that while power must always remain in the people’s hands and government must be limited, the people themselves, as the rightful guardians of that sovereign power, must be worthy of that challenge. And so, we see their frequent warnings to remain “moral and religious.”  It was not to require that government be entangled with religion, but rather to help the American people to remain fit and of proper character to be faithful stewards of the republic they’ve been entrusted with.

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Two Ways of Educating

Education - Indoctrination Center

 

 

 

 

 

by  Diane Rufino, December 24, 2013

At some schools, usually independent (not accepting federal dollars) and religious, students read old books, including Plato’s Republic.  In the Republic, they read the story of Gyges’ ring that makes the wearer of it invisible.  One of Socrates’ conversants in the Republic, a young man named Glaucon (who happened to be Plato’s older brother; both were students of Socrates), raises the question: ‘Why would a man in possession of such a ring not use it to do and obtain whatever he wishes?  Why would he not use the ring’s powers, for instance, to become a tyrant?’  In response, Socrates turns the discussion to another question: ‘What is the right way for a man to live?  What is just by nature and what is unjust?’

In parochial schools, such as John Paul II Catholic High School (where I teach), students are also regularly guided by the teachings of the Bible. With respect to the teachings of Jesus, it was Jesus himself who boiled the lessons down to two commandments. When asked by a teacher of law which of God’s laws are most important (Mark 12:28-31), Jesus replied: “Love the Lord your God with all your heart, all your soul, all your mind and all your strength” and “Love your neighbor as yourself.”  As with books like the Republic, the teachings of the Bible emphasize the proper way for a man to live.  They establish a value system of love, compassion, and charity.  They teach that individuals should use their talents, their abilities, their powers to do good, and not just for themselves but for others as well.

These Socratic questions were once at the center or core of education. But in American education as a whole, and thanks in great part to policies directed by the federal government, these questions have been abandoned. Teaching ‘morality,’ as it turns out, is too offensive.  Even sadder is the tacit denial that such a focus in education serves no sound social purpose.  Thankfully, these Socratic and Socratic-type questions remain at the center or core of education at many institutions that believe that a proper education includes an emphasis on morality and ethics.

At John Paul II Catholic High School, St. Peter’s, and other parochial schools, and perhaps some charter schools as well, there is often a core group of course that all students, regardless of their path, are required to take. This core has a unifying principle, as explained above, such as the idea that there is a right way to live.

Compare this to the “core” that defines the latest bright idea of the education establishment – Common Core.  At its core is the imposition of national one-size-fits-all, copyrighted and licensed educational standards on American public schools all across the country for top-down universal control over the teaching of our children. When one looks into Common Core, it becomes clear that it has no unifying principle, such as I have described above.

Absent the kind of questions posed by Socrates in the Republic or the lessons of community found in the Bible, or in the plays of Shakespeare that pit good versus evil/right versus wrong, modern educators treat students chiefly as factors of production, as moldable young adults to be trained for productive jobs, as dictated by the economy at the time.  And although we all wish productive jobs for our children, as parents we know that they are not chiefly job-seekers or factors of production. “After all, how many of us, if we were given the choice between having our children earn a lot of money and being bad, or struggling economically and being good, would choose the former?”

Another example of the turn taken by modern education is exemplified by a passage from the Teacher’s Guide for Advanced Placement English Literature and Composition, published in 1991 by the College Board – the influential organization that, among other things, administers the SAT exam. It was written by an English professor from Agnes Scott College in Georgia:

“AP teachers are implementing the best of the new pedagogies that have influenced leading institutions of higher learning. Perhaps most importantly, as Arthur Applebee explains, ‘objectivity’ and ‘factuality’ have lost preeminence.  Instruction has become ‘less a matter of transmittal of an objective and culturally sanctioned body of knowledge,’ and more a matter of helping individuals learn to construct their own realities.  This moves English courses away from the concept of subject matter to be memorized and toward ‘a body of knowledge, skills, and strategies that must be constructed by the learner out of experiences and interactions within the social context of the classroom.’  Emphasis is on the processes of language and thought, ‘processes that are shaped by a given cultural community and which also help students become part of the cultural community.’  Contemporary educators no doubt hope students will shape values and ethical systems as they engage in these interactions, acquiring principles that will help them live in a mad, mad world.”

Thomas Jefferson, perhaps one of our more prolific Founding Fathers, wrote or had his hand directly in at least four of the five organic laws that provide the ideological and legal foundation of our country. He wrote the Declaration of Independence, the Northwest Ordinance, gave direction to James Madison in his drafting of the US Constitution, and provided the voice of reason and conscience to Madison again when it came time to add a Bill of Rights.  The Northwest Ordinance, adopted in 1787, and passed again in 1789, contains the following beautiful sentence: “Religion, morality, and knowledge, being necessary for good government and the happiness of mankind, the means of education shall forever be encouraged.”  Accordingly, Congress proceeded to give 1/36th of the land in the vast Northwest Territory – including Michigan and four other states – as an endowment, controlled by the states, to support education in each township.

Consider the current text of the North Carolina state constitution (the constitution of 1971; see below), which sets forth government’s obligations in the state. Article I, Sec. 15 (Education”) provides:  “The people have a right to the privilege of education, and it is the duty of the State to guard and maintain that right.”  Article IX, Sec. 1 deals specifically with Education in the state.  That section (“Education encouraged”) reads: “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, libraries, and the means of education shall forever be encouraged.”

Could the difference be more stark between the older and newer goals of education?  Between leading students toward an understanding of the right way to live in a comprehensible world, and telling them they must shape their own values and make their own reality in a world gone mad?  And why aren’t more states, like my state of North Carolina which has vowed to guard and maintain its right to provide education to its citizens (and to promote morality), rejecting Common Core?

So, what is the right way for a man and a woman to live?

Do we trust that question to a government that has vowed to remain neutral on religion and on morality (tipping clearly towards immorality) and conducts itself in every instance without ethics?  Or do we reflect on that question in our own states and ask ourselves what we would like to expect from our own citizens?  Ultimately, parents want to be proud of their children.


[Note: The NC state constitution has been amended several times. The original constitution, adopted in 1776 by the general assembly (no input from the people) created the government for the new state; the constitution of 1868 was adopted and submitted to the US Congress for approval as required for re-admission to the Union after the Civil War (later amended to end discrimination against African Americans); and the constitution of 1971, which reorganized the entire state government in light of the requirements of the modern economy and society (more of a reorganization rather than adding anything new)].

 

**  [This short article is based on an article by Larry P. Arnn, Hillsdale College, Dec. 2013, Vol. 42, No. 12.]

 

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A Review of Federalism: The Significance of James Madison’s Report of 1800

States Rights - States Have Rights Too

A Review of Federalism:  The significance of James Madison’s Report of 1800 in Transforming the 10th Amendment into the Predominant Provision Recognized by the Courts in Protecting Federalism
by Diane Rufino, December 8, 2013

**  This article is taken almost exclusively from a 2005 paper by Professor Kurt Lash, Univ. of Illinois School of Law), published in the Loyola School of Law Report

In a speech opposing the chartering of a national bank in 1791, James Madison argued that only an unduly broad interpretation of federal power would allow Congress to create the Bank of the United States. He would have to remind those in power, which were the Federalists, of the great lengths they went through to create a Constitution of limited powers and to satisfy the States that they would not be giving up any sovereign power that they did not agree to.  Indeed, in their efforts to secure votes in favor of the Constitution, Federalists had assured the State Ratifying Conventions that the Constitution would not be construed in such an expansive manner, and the ratifying states themselves had issued declarations and proposed amendments which established their understanding that the Constitution would not be so construed.  The adoption of the pending Ninth and Tenth Amendments would make this assumed limited construction of federal power an express constitutional mandate.  In that speech, Madison argued:

The explanations in the State Ratifying Conventions all turned on the same fundamental principle, and on the principle that the terms necessary and proper gave no additional powers to those enumerated. (At this point, he read several passages from the debates of the Pennsylvania, Virginia and North Carolina Ratifying Conventions), showing the grounds on which the Constitution had been vindicated by its principal advocates against a dangerous latitude of its powers, charged on it by its opponents.)

     The explanatory declarations and amendments accompanying the ratifications of the several states formed a striking evidence wearing the same complexion.

     And these explanatory (and restrictive) amendments, proposed by Congress itself, should be good authority along with the debates in the State Conventions; all these renunciations of power proceeded on a rule of construction excluding the latitude (the scope) now contended for. These explanations are the more to be respected, as they had not only been proposed by Congress, but ratified by nearly three-fourths of the states. (He then read several of the articles proposed, remarking particularly on the 11th and 12th, which would eventually become our 9th and 10th amendments).  The eleventh amendment was intended to guard against a latitude of interpretation while the twelfth would excluding every source of power not within the Constitution itself.

     With all this evidence of the sense in which the Constitution was understood and adopted, the bill should not pass. If the bill should pass, then it will be said that the adoption of the Constitution was brought about by one set of arguments and but it is administered under another set and this will give the People cause for concern. 

     If the power were in the Constitution, Congress could exercise it, but it is not and therefore the exercise of it involves the guilt of usurpation, and establishes a precedent of interpretation that levels all the barriers which limit the powers of the general government and protect those of the state governments.     

      In conclusion, it appears on the whole, that the power exercised by the bill was condemned by the silence of the Constitution; was condemned by the rule of interpretation arising out of the Constitution; was condemned by its tendency to destroy the main characteristic of the Constitution; was condemned by the expositions of the friends of the Constitution whilst depending before the public; was condemned by the apparent intention of the parties which ratified the Constitution; was condemned by the explanatory amendments proposed by Congress themselves to the Constitution; and I hope it will receive its final condemnation, by the vote of this house.”

A few months after Madison gave this speech, Virginia voted in favor of the last 10 of the 12 proposed amendments and the Bill of Rights became part of the Constitution.  This Bill, like the Constitution itself, begins with a 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: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institutions.

As suggested by the Preamble, some amendments are declaratory clauses while others are restrictive clauses.

A restrictive modifying clause is an adjective clause that is essential to the meaning of a sentence because it limits the thing it refers to.  A declaratory clause, on the other hand, merely re-states or re-emphasizes a particular principle.  With that in mind, the Ninth Amendment acts as a restrictive clause while the Tenth stands as a declaration of principle.  The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment 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.”  Specifically, as Madison wrote and as he articulated in his speech opposing the chartering of a National Bank, the Ninth Amendment was submitted by the States to “guard against a latitude of construction,” while the Tenth would “exclude every power not within the Constitution itself.”  As a restrictive clause, the Ninth preserves the principle enshrined in the Tenth.  Without such a rule preventing “misconstruction,” of the Constitution, the declaratory Tenth Amendment risks becoming an empty promise.  Together, however, the two amendments prevent the “misconstruction or abuse” of federal power. This was the express intent of the States in adopting the Constitution. Nothing could be clearer.  And again, if this message wasn’t clear, the preamble to the Bill of Rights provided a bold, unambiguous, statement of the like.

The proper construction of federal power soon became an issue during the debate over the first Bank of the United States.  In his opinion opposing the creation of the Bank, Thomas Jefferson argued that the “latitude of construction” adopted by the Bank’s proponents would destroy the principle of enumerated powers declared in the Tenth Amendment.  “I consider the foundation of the Constitution as laid on this ground:  that all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [XIIth amendment.] To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, no longer susceptible of any definition.”

Echoing Jefferson’s concerns, Attorney General Edmund Randolph concluded:  “A similar construction on every specified federal power, will stretch the arm of Congress into the whole circle of state legislation. . . . Let it be propounded as an eternal question to those who build new powers on this clause, whether the latitude of construction which they arrogate will not terminate in an unlimited power in Congress?”

Both Jefferson and Randolph read the Tenth Amendment as confirming the establishment of a federal government of enumerated powers, with all nondelegated powers reserved to the states. Unduly broad constructions of enumerated federal power threatened to undermine this arrangement by creating, in essence, a government of unlimited power.  Accordingly, Randolph and Jefferson advocated a rule of strict construction in order to preserve the principle announced by the Tenth Amendment.  The rule preserved the principle.

Madison, of course, read the Ninth Amendment to express just such a rule, and early constitutional commentators agreed.  In the very first Supreme Court opinion discussing the Ninth Amendment, Justice Joseph Story followed the Madisonian reading of the Ninth and used it to support a limited construction of federal power.  In the 1820 case Houston v. Moore, Justice Story wrote that federal power to discipline the militia should not be read as exclusive of the concurrent power of individual states to establish their own rules of militia discipline, so long as those rules did not conflict with any federal statute.  Story declared that, “In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only upon the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.”

Madison and Story were not alone in their reading of the Ninth as a federalist rule of interpretation.  In his 1803 View of the Constitution, St. George Tucker likewise presented the Ninth Amendment as supporting a federalist rule of strict construction of federal power, as did constitutional commentator John Taylor. [Tucker wrote: “As a federal compact, it is to be construed strictly, in all cases where the antecedent rights of a state may be drawn in question (citing the Tenth Amendment).  As a social compact, it ought likewise to receive the same strict construction, wherever the right of personal liberty, of personal security, or of private property may become the subject of dispute; because every person whose liberty or property was thereby rendered subject to the new government, was antecedently a member of a civil society to whose regulations he had submitted himself, and under whose authority and protection he still remains, in all cases not expressly submitted to the new government (citing the Ninth and Tenth Amendments).”  John Taylor wrote, with respect to the Ninth and Tenth Amendments: “The precision of these expressions is happily contrived to defeat a construction, by which the origin of the union, or the sovereignty of the states, could be rendered at all doubtful.”]

Unlike Madison, Jefferson and Randolph, who believed that preserving the Tenth required the addition of a rule of construction, St. George Tucker believed that the Tenth Amendment itself expressed a rule of strict construction. According to Tucker, under the Tenth Amendment, the Constitution “is to be construed strictly, in all cases where the antecedent rights of state may be drawn in question.”  This reading of the Tenth Amendment seems somewhat awkward.  The text of the Tenth simply declares that Congress is granted only those powers enumerated in the Constitution.  The text says nothing about how broadly those delegated powers are to be construed.  Nevertheless, after 1800 and for the next one hundred and fifty years, courts and commentators cited both the Ninth and Tenth Amendments as expressing rules of strict construction of federal power.

This fact may surprise readers used to reading the Ninth and Tenth Amendments in opposition to one another or in reading them as having no real force of constitutional construction.  Since Griswold v. Connecticut, the Court has often read the Ninth Amendment as support for its judicial invalidation of state laws, while the Tenth is most commonly associated with “states’ rights.”  Historically, however, the two amendments were read in pari materia, meaning “acting on the same matter.”  They both represented a limitation on the power of the federal government to interfere with the states. As late as 1948, the Supreme Court continued to apply both amendments as twin guardians of federalism. In Bute v. Illinois, the Supreme Court considered whether allowing a defendant in a non-capital criminal prosecution to represent himself, without inquiring into whether he desired or could afford an attorney, violated his rights under the Fourteenth Amendment.  Because the Sixth Amendment required such an inquiry in federal court, the issue was whether this rule was incorporated against the states.  In a 5-4 decision, Justice Harold Burton rejected the claim and provided an extended analysis of the Ninth and Tenth Amendments and their roles in interpreting the scope of the Fourteenth Amendment’s Due Process Clause. According to Justice Burton:

One of the major contributions to the science of government that was made by the Constitution of the United States was its division of powers between the states and the Federal Government. The compromise between state rights and those of a central government was fully considered in securing the ratification of the Constitution in 1787 and 1788.  It was emphasized in the “Bill of Rights,” ratified in 1791.  In the ten Amendments constituting such Bill, additional restrictions were placed upon the Federal Government and particularly upon procedure in the federal courts.  None were placed upon the states.  On the contrary, the reserved powers of the states and of the people were emphasized in the Ninth and Tenth Amendments.  This point of view is material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states, including Illinois. In our opinion this limitation is descriptive of a broad regulatory power over each state and not of a major transfer by the states to the United States of the primary and pre-existing power of the states over court procedures in state criminal cases.”

In Bute, Justice Burton linked the Ninth and Tenth Amendments to the need to preserve “Home Rule,” or, as earlier courts had phrased it, the right of a state “to determine for itself its own political machinery and its own domestic policies.”  Preserving that right required a rule of construction.  The Court in Bute applied such a rule, noting that the principles underlying the Ninth and Tenth Amendments are “material in the instant cases in interpreting the limitation which the Fourteenth Amendment places upon the processes of law that may be practiced by the several states.”

In limiting the scope of the Fourteenth Amendment, the Court’s decision in Bute echoes similar reasoning in the 2000 United States v. Morrison decision, which narrowly interpreted the reach of Congress’s Section 5 powers under the Fourteenth Amendment in order to preserve state autonomy. Specifically, the Court cited the Tenth Amendment in support of its limited reading of federal power.  By the time the Court decided Morrison, however, the Ninth Amendment had already disappeared from the judicial debate (and perhaps civil debate) on federal powers.  In the majority decision authored by Chief Justice William Rehnquist, it was the Tenth Amendment alone that provided the basis for the Court’s rule of strict construction.

This disappearance of the Ninth presents us with a mystery and should give us cause for concern.  Given that it is the Ninth, not the Tenth, which literally expresses a rule of construction, how did the Tenth Amendment come to share an equal role with the Ninth as a rule of limited construction of federal power?

More directly, how did the Tenth come to replace the Ninth Amendment as a limiting rule of construction?  Madison’s public description of the Ninth and Tenth Amendments compounds this mystery.  As Madison drafted both amendments, participated in the Congressional debates, and is considered the “Father of the Constitution, one would think Madison’s description of the Ninth as the relevant rule of construction would carry particular weight.

Ironically, it appears that Madison himself may have played a key, if unintentional, role in refocusing attention away from the Ninth and onto the Tenth Amendment as the textual basis for a rule of strict construction.  In one of the most influential documents Madison ever produced, The Report on the Alien and Sedition Acts, (also known as Madison’s “Report of 1800”), Madison presented the Tenth Amendment as the central constitutional text for constraining the interpretation of federal power.  Although Madison’s reliance on the Tenth Amendment in his Report corresponds to his interpretation of the Ninth and Tenth Amendments in his speech on the Bank of the United States, his “Report of 1800” took on a life of its own – as would the Tenth Amendment.

The Tenth Amendment would undergo this transformation in light of the passage of the Alien and Sedition Acts.  This transformation would also serve to remind states of their obligation when faced with unconstitutional federal legislation. (The terms “Nullification” and “Interposition” would be coined at this time to define that obligation).

In the aftermath of the so-called XYZ Affair, in which French officials demanded bribes from an American peace delegation, and in the midst of heightening tensions with France, Congress enacted the Alien and Sedition Acts (which were actually a series of four statutes: the Alien Act, the Alien Enemies Act, the Naturalization Act, and the Sedition Act).  The Sedition Act made the common law offense of seditious libel a federal crime, and inflaming an already politically charged atmosphere, Federalist judges enforced the Act against critics of the Adams Administration. Defenders of the Sedition Act came dangerously close to claiming that Congress had an unenumerated power to enforce the common law. The author of the “Report of the Minority on the Virginia Resolutions,” commonly believed to be John Marshall, argued that there was a “common or unwritten law which pervades all America, and which declares libels against government to be a punishable offence.”  According to the Report, “to contend that there does not exist a power to punish writings coming within the description of this law, would be to assert the inability of our nation to preserve its own peace.”

As far as seditious libel and free speech were concerned, according to John Marshall, the Federalists, and even President John Adams himself, the freedom guaranteed by the First Amendment did not extend to such “licentious” acts as libeling the government.

By appearing to embrace the unwritten power to enforce the common law, the defenders of the Sedition Act seemed to reject the principle of enumerated federal power.  Although the Ninth Amendment guarded against explansive constructions of delegated powers, it was the Tenth Amendment which declared that all non-enumerated powers are reserved to the States. Accordingly, James Madison and Thomas Jefferson raised the hue and cry that Congress had transgressed the boundaries of federal power established by the Tenth Amendment. They communicated aggressively during this time and contemplated what the proper response would be when the federal government exceeds its constitutional limitations and imposes a palpable violation on the people.  In his Kentucky Resolutions of 1798 (Nov. 10, 1798), Thomas Jefferson wrote:

That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, 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”; and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states or to the people.”

In his Virginia Resolutions of 1798, Madison called on the states to join with Virginia and Kentucky in declaring, “That the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.”  He would go on to explain that the proper measure would be Interposition, which is the right of the states to “interpose” – or intervene – between the federal government and the people of the state to protect their rights and liberties and preserve the proper balance of government.

“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.”

A year later, Thomas Jefferson authored another set of resolutions so that Kentucky could re-affirm its position.  In the Kentucky Resolutions of 1799, Jefferson 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 color of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said Alien and Sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal…

Madison defended the positions taken in the Virginia Resolutions in his Report on the Alien and Sedition Acts (aka, “Madison’s Report of 1800”)  In his Report, Madison further explained that Congress’s attempt to exercise unenumerated common law powers violated the constitutional principle that “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 (as the Tenth Amendment), 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.”

Ultimately, the Democratic-Republican Party of Thomas Jefferson and James Madison defeated the Federalists in the election of 1800, due in no small part to popular reaction against the Alien and Sedition Acts.  Madison’s celebrated “Report of 1800,” which Spencer Roane referred to as the Magna Charta of the Republicans, became a foundational document for 19th century advocates of states’ rights.  The Report was so influential that Madison’s Tenth Amendment-based argument against the Acts had the effect of eclipsing the Ninth as the core constitutional provision requiring the strict construction of federal power.

It is difficult to overstate the influence of Madison’s Report of 1800 among states’ rights theorists in the decades between Jefferson’s election and the Civil War.  St. George Tucker referred to Madison’s Report numerous times in his 1803 constitutional treatise, A View of the Constitution of the United States, repeating in particular Madison’s claim that Congress had exceeded the bounds established by the Tenth Amendment. When Jonathan Elliot compiled the materials for his great compilation (1836), The Debates in the Several State Conventions on the Adoption of the Federal Constitution, among the few post-adoption sources that he added was “The Report on the Virginia Resolutions, by Mr. Madison.”  It was not unusual for nineteenth century courts to refer to what was known as Madison’s “Celebrated Report” in discussing the scope of federal law.

In fact, courts in later decades viewed the struggle over the Alien and Sedition Acts and the election of 1800 as a referendum on the proper interpretation of the Constitution.  Writing in the 1860’s, Judge Bell of the Texas Supreme Court described the event as a titanic struggle over an unduly expansive interpretation of federal power:

I take it for granted that we will not . . . go back to that latitude of construction, and to the reasoning by which the federalists of 1798 claimed for the congress of the United States the power to exercise a censorship over the press, as a means necessary and proper to carry into effect the power to suppress insurrections. We have been accustomed to read, with the interest that attaches to the drama, the history of the great struggle which elevated Mr. Jefferson to the presidency. It is the first conspicuous landmark in the history of the government of the United States under the constitution. It has always been claimed that the republican party performed a patriotic service in resisting the tendency to a rapid consolidation of powers in the general government, and that their illustrious leader was the faithful sentinel who saw the danger to the constitution, and met it with a noble devotion to the cause of liberty. . . . and in every step which has been made towards a strict construction of the constitution, the people have hailed the triumph of sound principles and felt renewed confidence in the stability of republican institutions.”

States’ rights advocates in particular relied on Madison’s Report of 1800 as a critical guide to state autonomy and proper interpretation of the Constitution.  Virginia Chief Judge Spencer Roane cited Madison’s Report in support of his contention that the Supreme Court had no authority to reverse the decision of Virginia’s highest court.  When Chief Justice John Marshall upheld the Second Bank of the United States in McCulloch v. Maryland (1819), Roane published a series of essays critical of the McCulloch decision in the Richmond Enquirer under the pseudonym “Hampden.” Repeatedly referring to the odious precedent of the Alien and Sedition Acts and Madison’s “celebrated Report” of 1800, Roane argued that Congress and the Supreme Court had once again invaded the reserved powers of the States:

It has been our happiness to believe, that in the partition of powers between the general and state governments, the former possessed only such as were expressly granted . . . while all residuary powers were retained by the latter. . . . This, it is believed, was done by the constitution, in its original shape; but such were the natural fears and jealousies of our citizens, in relation to this all important subject, that it was deemed necessary to quiet those fears, by the 10th amendment to the Constitution.”

Tying the hated Sedition Acts to Marshall’s opinion in McCulloch, Roane argued that “the latitude of construction now favored by the Supreme Court, is precisely that which brought the memorable Sedition Act into our code.”  In a famous paragraph, Roane declared, “that man must be a deplorable idiot who does not see that there is no earthly difference between an unlimited grant of power, and a grant limited in its terms, but accompanied with unlimited means of carrying it into execution.”

Consider this question:  Has the Supreme Court’s application of the Tenth Amendment rendered it particularly vulnerable to criticism?   In 1941, in a case defining the boundaries of the federal Commerce Clause, United States v. Darby, the Supreme Court declared that it would uphold federal regulation of purely intrastate commerce if Congress reasonably concluded that the activity in question affected interstate commerce.  In doing so, the Court gave the federal government great latitude in defining the scope of its powers.  The Court rejected the idea that the Tenth Amendment required strict construction of federal power. According to Justice Harlan Stone, who authored the majority opinion:

Our conclusion is unaffected by the Tenth Amendment . . . . The amendment states but a truism that all is retained which has not been surrendered.  There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers.  From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted end.”

Indeed, even at the moment of its adoption, Madison acknowledged that the Tenth Amendment was unnecessary and the Clause was criticized in the State Ratification Conventions as having no “real effect.”  As one can imagine, this disclosure is quite popular with those most interested in an energetic and concentrated federal government and those interested in restricting federal power.

Despite these criticisms, however, current federal jurisprudence (current rule of constitutional construction), holds that the Tenth Amendment has both a textual basis and historic application.  The accidents of history that led to the rise of the Tenth Amendment and the fall of the Ninth have resulted in the invocation of the right principles in the wrong context.  Originally, the Ninth and Tenth Amendments were meant to work together: The Tenth declaring the principle of reserved non-enumerated power, and the Ninth ensuring that the powers reserved to the states would not become a null set through the overly broad construction of enumerated federal authority.  Both principles were thought necessary in order to guarantee the people’s retained right to local self-government.  In other words, without the Ninth Amendment, the Tenth Amendment does indeed become a mere truism.

Understanding the proper source of this rule of construction and how it became associated with the Tenth Amendment vindicates the jurisprudence of the Tenth even as it refocuses attention back to the Ninth Amendment.  Absent this refocusing, the Tenth Amendment and its attendant federalist jurisprudence remains vulnerable to criticism and, ultimately, reversal.

In other words, understanding the history of the Ninth and Tenth Amendments is necessary, if only to save the Tenth Amendment from itself.  A renewed appreciation of the textual (contextual) roots of federalism seems particularly relevant as both sides of the political spectrum now have come to embrace the value of state autonomy and as the doctrine of Nullification becomes more popular.

Refocusing the rule of construction back to the Ninth Amendment does not reduce the Tenth to a mere truism. The Tenth Amendment not only denies unenumerated powers to the federal government, it also forbids placing any unenumerated restrictions on the states.  According to the text, “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.”  Just as the first portion of the Tenth Amendment limits the powers of the federal government to no more than those enumerated in the text, the second portion limits restrictions on the states to no more than those enumerated in the text; all other powers are reserved to the states or to the people.

The Tenth Amendment, just as the Ninth Amendment, establishes “further declaratory and restrictive clauses, in order to prevent misconstruction or abuse of its (federal government) powers.”  (Preamble to the Bill of Rights).  Not only is the federal government further limited in its powers under Constitution, but it is expressly limited from stepping into the sphere of reserved rights held by the People and the States.  

Restoring the Tenth Amendment to its proper place in the arena of constitutional interpretation does nothing to endanger federalism.  Rather, it places federalism – as well as liberty, and the guarantees in the Declaration of Independence – on firmer ground.

The key, clearly, to restoring the proper balance of government power and restoring power to the parties from which it rightfully originated and to which it rightfully belongs is to return to the critical jurisprudence of original intent and strict construction. Unfortunately, big government proponents and liberal law school professors like to demonize judges who adopt this approach and indoctrinate both law school students and low-information and uneducated Americans. They like to declare that the US Constitution is outdated and incapable of addressing the issues of today’s America and in direct contradiction and willful disregard of the men who wrote and defined the document and the duly-assembled institutions that debated and ratified it, they classify it incorrectly as “a living breathing document.”  The longer we allow the indoctrination to take place, the more firmly the notion will become entrenched with a people who no longer knows what their rights are or how, procedurally and ideologically, they are secured and protected.

The task we face is EDUCATION, EDUCATION, and more EDUCATION.  We need to take on the liberals and progressives at every turn and debate them on the merits, with the ultimate goal being the preservation of a government system so properly divided among sovereigns and so richly pitted with reliable checks and balances that the rights and liberties of mankind, so forcibly asserted and fiercely defended throughout the ages, will be secured for the ages and will not begin that dark descent into oppression that robs them of that divine spark and that exercise in freedom that moves civilization forward and makes us a more successful and exemplary nation.

Reference:  The article above is almost exclusively comprised of Professor Kurt Lash’s 2005 Loyola Law School article on James Madison’s Report of 1800:

Kurt T. Lash, “James Madison’s Celebrated Report of 1800: The Transformation of the Tenth Amendment,” Loyola School of Law, Legal Studies Paper No. 2005-30, November 2005.  [Kurt T. Lash is a professor at the University of Illinois School of Law]

 

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Keep the Federal Government in Check with NULLIFICATION – Not Liberty Amendments

Nullification - Mark Levin v. Thomas Jefferson

by Diane Rufino, October 10, 2013

Mark Levin, who wrote an excellent book “The Liberty Amendments” to urge states to call for an Article V Convention to propose constitutional amendments to restore the federal government back to some sort of constitutional limits, calls Nullifiers “kooks.”  His solution is to keep the federal government in check by a series of constitutional amendments.

My question to Mr. Levin is this:  Why do we need to AMEND the Constitution? The Constitution has never been legally altered from its original meaning. What we need to do is FINALLY ENFORCE the Constitution that was ratified by the States in 1787-1788. The government represents the CONSENT of the GOVERNED and has never been delegated any authority to autonomously expand or enlarge its powers. The Declaration of Independence, which provides the framework for our common intent and understanding of government, assures that government is a creature of the people to SERVE the people. Only the people have the power to “alter or abolish” government. The scope of government is at the will of the people. Government has no power to alter itself or to abolish any rights of the people. What does this mean?  It means that every time the government oversteps its limited authority under the Constitution, it takes sovereign power away from the People and the States. Our Founders warned about this when they included the Ninth and Tenth Amendments and that’s why those amendments are included… They remind us that any step beyond the authority in the Constitution is an infringement on the natural rights of the Individual or the sovereign rights of the States.

For the past 200 years, the government has steadily stepped beyond its constitutional authority and stepped on the rights of others. It’s time those who have had their rights trampled upon step up and say NO MORE.  Nullification is the rightful remedy, based precisely on the ideals laid out in the Declaration of Independence.  As long as it is understood that government derives from the people, is accountable to them, serves them, and is at all times subject to their right to alter or abolish it, then it should not be expected that People have to go through great pains and efforts to ask it to abide by its charter.  The Constitution is a limit on the government to hold it accountable to the People and NOT a limit on the People to demand such accountability.

The Rightful Remedy is Nullification and NOT constitutional amendments. Don’t get me wrong. When the people want to knowingly and intentionally alter their Constitution and change their form of government, then amendments are the proper remedy.  But when government oversteps the bounds of authority that the PEOPLE have set on it in the Constitution and tramples on the rights of other parties, the proper remedy to stop that usurpation and to reign in the power and scope of government is not through amendments but through Nullification. Nullification recognizes the founding American government principle that any power not expressly delegated to the government by the People (for their benefit) cannot be assumed by it. Therefore, when government attempts to overstep its (constitutional) boundaries, those laws are without legal authority, are null and void, and are unenforceable on the People.  Requiring the People to go through a series of seemingly insurmountable hoops (ie, constitutional amendments) to try to control their government seems is akin to having them beg the federal government to “Please, please, please try to respect the Constitution.”

It seems the great majority of people, including Mr. Levin, have forgotten what a Constitution is, at its core.  John Jay, who wrote five of the essays compiled in The Federalist Papers and who went on to be appointed Chief Justice of the US Supreme Court by President George Washington, wrote: “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 stable and permanent, not to be worked upon by the temper of the times.. It remains firm and immovable, as a mountain amidst the raging of the waves.”  Thomas Paine, in his Rights of Man, 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.”  And in 1782, in his Notes on Virginia, Thomas Jefferson explained: “The purpose of a written constitution is to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”

I believe Mark Levin is dead wrong in attacking the Nullification movement.  I respect him immensely, but if he truly believes that we must amend the Constitution in order to restore the Constitution – when the Constitution was never legally amended to get us in the predicament that we are in – then he has a flawed understanding of our founding principles and the American founding philosophy of government.

He presupposes that only the People and the States need to abide by Constitutional limits.  It doesn’t matter to him that the federal government, the one party that IS supposed to be limited by the Constitution, has repeatedly, defiantly, and grossly misinterpreted and abused its terms.  Mr. Levin is so hung up on “what the People and the States can constitutionally do” to bring the government back in line (and by that, I mean that he wants the remedy to be expressly articulated in the Constitution) that he forgets that even as he is out on his book tour to promote “The Liberty Amendments,” the federal government continues to willfully ignore its constitutional limitations and obligations. The Rightful Remedy should be the one that most effectively and immediately puts the government back in check and restores the proper balance of power between the government, People, and the States. The amendment process will take many years and will most likely fall through. And even if an Article V Convention of the States is able to move forward, the amendments produced will most likely be more symbolic than effectual.  A government that is supposed to serve the People (“that to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed…”) should be accessible by the People and a Constitution that is supposed to protect the People from government should NOT effectively shut the People out from “altering” their government so that it isn’t “becoming destructive of its ends.” Nullification, on the other hand, checks the government at every instance.  It puts sovereign power in the hands of those who were the intended depositories – the People.

Nullification is the magic bullet.  As government hemorrhages and our nation dies of toxic ideological poisoning, Nullification is the treatment that patriots can use to get our system healthy again.

Opponents of Nullification want to take this remedy away.  They want to take the one true remedy that is based on the principles our nation was founded upon and discredit it by associating it with themes that the average uninformed American has been brainwashed on.  First, they try to dismiss it by claiming that the government trumps any action of the State on account of the Supremacy Clause.  They believe that since the government has the exclusive right and power to define the extent of its powers and to twist and bend the Constitution to serve its purposes, the Supremacy Clause is the enforcement “badge” that allows it to push any and all laws on the States. By extension, they believe that the Supremacy Clause should be a restraining order on the States so that they don’t get the urge to second-guess the actions and intentions of the federal government.

Second, they discredit Nullification by claiming that the Supreme Court has ruled it unconstitutional. They say that the theory of nullification has been rejected repeatedly by the courts (in particular by the Supreme Court in Ableman v. Booth, 1859 and in Cooper v. Aaron, 1958), and it has never been legally upheld.  Furthermore, they claim that under Article III of the Constitution, the federal judiciary has the exclusive and final power to interpret the Constitution (Marbury v. Madison, 1803). Therefore, the exclusive power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the States.  Consequently, the States have no power to challenge any decision the federal government makes with respect to the laws it passes or the decisions it hands down, and they have no power to nullify federal laws.  Opponents of nullification claim this is the constitutional.

They neglect, of course, to mention that it was the federal government itself that delegated that exclusive power to itself.

Contrary to what the opponents claim, the Supremacy Clause does NOT foreclose Nullification, as most opponents of Nullification claim.  The two principles actually work hand-in-hand.  The Supremacy Clause states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby.” The Supremacy Clause acknowledges that the Constitution provides legal authority to make certain laws and only laws enacted pursuant to that authority shall be considered supreme law. What it doesn’t say is what happens when the government makes laws NOT in pursuance of legitimate constitutional authority.  And that’s where Nullification steps in. Nullification reaffirms the point of the Supremacy Clause. It acknowledges that government has certain powers to legislate but that the power is not plenary. When the government acts pursuant to its constitutional power, its laws are supreme. But when it acts in abuse or violation of those powers, or assumes power not granted, Nullification provides the remedy. It provides that the States can challenge the government when it passes an unconstitutional law by refusing to enforce it upon the People.  A free people should never have to suffer the enforcement of unconstitutional laws on them.

Unfortunately, the government doesn’t want to recognize the inherent limitation in the Supremacy Clause – that only those laws made “in pursuance” to the Constitution are supreme.  It wants to continue along the self-serving path that allows it to make laws for whatever purpose it wants and to interpret the Constitution to suit it best and to claim it all under the Supremacy Clause.  People want Liberty.  Governments want concentrated power.  These are competing goals.  Our Founders understood that.  And for that very reason, the States were designated as a co-equal Sovereign. The States would forever be an antagonistic force (much like the prosecutor and defense attorney are in a criminal case) that keeps the federal government confined to its exclusive and particular sphere of authority and out of their sphere of government.  “Reserved” powers meant exactly that.  Those powers not expressly delegated to the federal government are reserved by the People and the States.

In Ableman v. Booth, the Supreme Court held that the state of Wisconsin didn’t have the right to nullify the Fugitive Slave law because of the right of the Court to exclusively determine what the Constitution says and means (Marbury v. Madison, 1803).

It should not be forgotten, however, that Ableman decision was written by Justice Roger Taney who also authored the absolute most heinous Supreme Court decision in US history – the Dred Scott decision. That alone should demonstrate how fallible the federal courts are and how tainted, skewed, politically-motivated, academically-limited, and intellectually-dishonest Supreme Court justices are.

In Cooper v. Aaron, Chief Justice Earl Warren wrote the majority opinion.  That opinion held: “The constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ingeniously or ingenuously.”

Chief Justice Warren continued: “It is necessary only to recall some basic constitutional propositions which are settled doctrine.  Article VI of the Constitution makes the Constitution the ‘supreme Law of the Land.’ In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,’ declared in the notable case of Marbury v. Madison,  that ‘It is emphatically the province and duty of the judicial department to say what the law is.’ This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.  It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution makes it of binding effect on the States ‘any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.’ Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Article VI, clause 3 “to support this Constitution…..  If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.”

Justice Frankfurter, concurring in the opinion, wrote separately: “The States must yield to an authority that is paramount to the State.”

Of course, Chief Justice Earl Warren also wrote the opinion in Brown v. Board of Education, the case upon which the Cooper case was based.  Is it any wonder that he would try to deny states the opportunity to challenge the merits of that decision?

The Supreme Court likes to cite its early decision in Marbury v Madison (1803).  Opponents of Nullification like to cite Marbury v. Madison. They say that this case definitively establishes the principle that the Supreme Court has the exclusive power to interpret and define the Constitution.  And it’s no wonder why this case is a favorite of the Court, of government in general, and of those who favor our current bloated, energetic centralized government.  Since this decision was an enlargement of government powers by giving the federal judiciary plenary power to interpret the Constitution and proclaim what the law of the land is (without being subject to any check or balance under the Constitution), it put the government in a further position to hold a monopoly on the meaning and scope of its powers.  Nullification doesn’t ask us what the Supreme Court says on a particular matter.  Nullification applies regardless of what the Court has said because it, like every other branch, is capable of acting outside of Constitutional authority.  Nullification is an implied principle.  It is the implied (enforcement) power behind the Tenth Amendment just as the federal government has the implied power to enforce its laws and policies under the Supremacy Clause. If the States are truly to be co-sovereigns as our system was intended and designed, under the Constitution and especially with the Bill of Rights (Ninth and Tenth Amendments), then the States must have an equal opportunity to assert their rights under the Tenth Amendment, as well as the Peoples’ rights under the Ninth Amendment. To say that the government alone can assert its sovereignty (under the Supremacy Clause) would be to absolutely deny the concept of Dual Sovereignty and to severely jeopardize the precious balance of sovereign (government) power that uniquely defines our American system of government and which most strongly protects our individual liberty.

As we all know, We the People are vested, under Natural Law and God’s Law, with fundamental rights. The Declaration of Independence acknowledges this and further states that People, in order to organize into productive societies and in order not to sacrifice any of their rights, establish governments (by the “consent of the governed,” by a temporary delegation of their right to exercise and defend their rights, and for the primary purpose of protecting and securing individual rights).  The People, because they are sovereign and have the Natural right to determine their form of government and also because they have the right to take their sovereign power back from government, have the right to “alter or abolish” their government when it becomes destructive of its ends.  As we know, the Declaration provides the foundation for the Constitution. It establishes the philosophy or ideology of Individual Rights, Sovereignty, and Government. The Constitution then created or established a limited government based on that philosophy/ideology and on those principles.  The States, fearing that the Constitution drafted and adopted at the Convention in 1787 might try to step on the rights and powers of the People and the States, insisted that the Constitution be amended with certain “declaratory and limiting phrases” – which would be our Bill of Rights.  Two of those amendments were the Ninth and Tenth Amendments which guarantee that those powers not expressly delegated from the People/States to the federal government are reserved to the People and States, respectively.  This is precisely the type of government referred to and envisioned in our Declaration…  one that only gives to a government those powers that the People are knowingly, intelligently, and voluntarily willing to give it.  But if the Ninth and Tenth Amendments are to MEAN anything, then there has to be an implied enforcement power.  That power to keep the federal government limited is what federalism is all about. It is all about acknowledging the power of the States to forcibly assert its dominance on those reserve powers. Nullification is an implied power.  Just like the Supremacy Clause has an associated enforcement power which the government is so fond of asserting, the States have Nullification.

It should be noted that Marbury v. Madison was a powerful decision in a few very important aspects.  In particular, the decision emphasized and reinforced two key constitutional themes:

(1)  Justices on the Supreme Court are bound to interpret the Constitution strictly and according to the intention of the Founders and those who ratified it (at the time it was ratified).  Justices are bound by ORIGINAL INTENT and STRICT RULES of CONSTRUCTION (words don’t magically change definition as the times change and the Constitution doesn’t evolve with evolving times. Only through the Amendment process (which is how the People declare their intent to alter their form of government and its terms) can the Constitution be altered or amended to reflect changing times. “That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.”

(2)  Justices must adhere strictly to their oath, which is to the Constitution (as ratified) and not to any administration or political party.  Anytime a justice veers from his oath and doesn’t interpret the Constitution according to strict construction and original intent he commits TREASON.  “The framers of the Constitution contemplated that the Constitution would serve as a rule for the courts, as well as of the Legislature. Why otherwise does it direct the judges to take an oath to support it? This oath certainly applies in an especial manner to their conduct in their official character. How immoral to impose it on them if they were to be used as the instruments, and the knowing instruments, for violating what they swear to support! Why does a judge swear to discharge his duties agreeably to the Constitution of the United States if that Constitution forms no rule for his government?  If such be the real state of things, this is worse than solemn mockery. To prescribe or to take this oath becomes equally a crime.”

On the other hand, Jefferson disagreed with Marshall’s reasoning with respect to judicial review, the doctrine the case is known for establishing.  In Marbury, Chief Justice Marshall declared that it is emphatically the duty of the federal judiciary to say what the law is. “Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.  If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”

Marshall continued: “An act of the legislature repugnant to the constitution is void.  This theory is essentially attached to a written Constitution.”  In other words, when the Constitution – the nation’s highest law – conflicts with an act of the legislature, that act is invalid.  Jefferson criticized the decision by arguing that “the Constitution has erected no such tribunal” with such power.  He argued that “to consider the judges as the ultimate arbiters of all constitutional questions would be a very dangerous doctrine that which would place us under the despotism of an oligarchy.”

It’s worth noting that the Constitution lacks a clear statement authorizing the federal courts to nullify the acts of co-equal branches, yet the Supreme Court went ahead and assumed that power for itself (under the guise of “judicial review”).  There is also no statement in the Constitution that prohibits States from nullifying acts of the federal government (yet it is strongly implied in the Tenth Amendment and the Supremacy Clause), but the Supreme Court went ahead and denied that power to the States.

As one lawyer and opponent of Nullification writes: “Anyone who believes that Nullification is legitimate either 1) Hasn’t read relevant Supreme Court opinions, or 2) believes that centuries of Constitutional precedent should simply be thrown aside.”  Obviously this lawyer hasn’t read Thomas Jefferson, the author of our Declaration and consultant to James Madison, the author of our Constitution, or James Madison himself.  Both warned about putting too much power in the federal judiciary.

Thomas Jefferson wrote to William C Jarvis in 1820: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal.  I know no safe depository of the ultimate powers of society but the people themselves.”   

Jefferson wrote to Charles Hammond in 1821: “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 center 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.”

And Abraham Lincoln, in criticizing the Dred Scott decision, said: “If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”

I have read what our Founders wrote about Nullification.  I believe it to be as legitimate a doctrine as any other check and balance doctrine on which our government was based.  I believe it to be as foundational a principle as limited government and “government of the People.”  I will never place the opinions of any federal court judge over the very words of those who defined our American notion of ordered liberty and our system of government. I know what the intentions were of our Founders – to honor the spirit of our American Revolution and to secure individual liberty.  I always question the intentions and judgment of federal court judges.

Justice Felix Frankurter, who served on the Supreme Court from 1939-1962, once said this about the high Court’s decisions: “The ultimate touchstone of constitutionality is the Constitution itself and not what we have said about it.”  And we should take his advice and disregard the Court’s opinion in Cooper – and in Ableman too!

Attorney General Edwin Meese, III (Attorney General under President Ronald Reagan), a constitutional scholar, was highly critical of the Cooper v. Aaron decision, and in fact delivered these words to Tulane University Law in 1986:

      “A decision by the Supreme Court does not establish a ‘supreme Law of the Land’ that is binding on all persons and parts of government, henceforth and forevermore.  Obviously it does have binding quality: It binds the parties in a case and also the executive branch for whatever enforcement is necessary.  But there is a necessary distinction between the Constitution and constitutional law.  The two are not synonymous. The Constitution is a document of our most fundamental law.  It begins ‘We the People of the United States, in Order to form a more perfect Union…’ and ends up, some 6,000 words later, with the 26th Amendment. It creates the institutions of our government, it enumerates the powers those institutions may wield, and it cordons off certain areas into which government may not enter. It prohibits the national authority, for example, from passing ex post facto laws while it prohibits the states from violating the obligations of contracts. The Constitution is, in brief, the instrument by which the consent of the governed – the fundamental requirement of any legitimate government – is transformed into a government complete with ‘the powers to act and a structure designed to make it act wisely or responsibly.’ Among its various ‘internal contrivances’ (as James Madison called them) we find federalism, separation of powers, bicameralism, representation, an extended commercial republic, an energetic executive, and an independent judiciary. Together, these devices form the machinery of our popular form of government and secure the rights of the people. The Constitution, then, is the Constitution, and as such it is, in its own words, ‘the supreme Law of the Land.’

      Constitutional law, on the other hand, is that body of law which has resulted from the Supreme Court’s adjudications involving disputes over constitutional provisions or doctrines. To put it a bit more simply, constitutional law is what the Supreme Court says about the Constitution in its decisions resolving the cases and controversies that come before it.

      The Supreme Court is not the only interpreter of the Constitution. Each of the three coordinate branches of government created and empowered by the Constitution – the executive and legislative no less than the judicial – has a duty to interpret the Constitution in the performance of its official functions. In fact, every official takes an oath precisely to that effect.  For the same reason that the Constitution cannot be reduced to constitutional law, the Constitution cannot simply be reduced to what Congress or the President say it is either. Quite the contrary. The Constitution, the original document of 1787 plus its amendments, is and must be understood to be the standard against which all laws, policies and interpretations must be measured.

     But in their task of interpreting the Constitution, the courts have on occasion been tempted to think that the law of their decisions is on a par with the Constitution. That is, they have reduced the Constitution to constitutional law.

     Some thirty years ago, in the midst of great racial turmoil, our highest Court succumbed to this very temptation. By a flawed reading of our Constitution and Marbury v. Madison, and an even more faulty syllogism of legal reasoning, the Court in a 1958 case called Cooper v. Aaron appeared to arrive at conclusions about its own power that would have shocked men like John Marshall and Joseph Story.  In this case the Court proclaimed that the constitutional decision it had reached that day was nothing less than ‘the supreme law of the land.’ Obviously the decision was binding on the parties in the case; but the implication that everyone would have to accept its judgments uncritically, that it was a decision from which there could be no appeal, was astonishing; the language recalled what Stephen Douglas said about Dred Scott. In one fell swoop, the Court seemed to reduce the Constitution to the status of ordinary constitutional law, and to equate the judge with the lawgiver. Such logic assumes, as Charles Evans Hughes once quipped, that the Constitution is ‘what the judges say it is.’ The logic of Cooper v. Aaron was, and is, at war with the Constitution, at war with the basic principles of democratic government, and at war with the very meaning of the rule of law.

     Just as Dred Scott had its partisans a century ago, so does Cooper v. Aaron today. For example, a U.S. Senator criticized a recent nominee of the President’s to the bench for his sponsorship while a state legislator of a bill that responded to a Supreme Court decision with which he disagreed. The decision was Stone v. Graham, a 1980 case in which the Court held unconstitutional a Kentucky statute that required the posting of the Ten Commandments in the schools of that state. The bill co-sponsored by the judicial nominee – which, by the way, passed his state’s Senate by a vote of 39 to 9 – would have permitted the posting of the Ten Commandments in the schools of his state. In this, the nominee was acting on the principle Lincoln well understood – that legislators have an independent duty to consider the constitutionality of proposed legislation. Nonetheless, the nominee was faulted for not appreciating that under Cooper v. Aaron, Supreme Court decisions are the law of the land – just like the Constitution.  He was faulted, in other words, for failing to agree with an idea that would put the Court’s constitutional interpretations in the unique position of meaning the same as the Constitution itself.

     My message today is that such interpretations are not and must not be placed in such a position. To understand the distinction between the Constitution and constitutional law is to grasp, as John Marshall observed in Marbury, ‘that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the legislature.’ This was the reason, in Marshall’s view, that a ‘written Constitution is one of the greatest improvements on political institutions.’

     Likewise, James Madison, expressing his mature view of the subject, wrote that as the three branches of government are coordinate and equally bound to support the Constitution, ‘each must in the exercise of its functions be guided by the text of the Constitution according to its own interpretation of it.’ And, as his lifelong friend and collaborator, Jefferson, once said, the written Constitution is ‘our peculiar security.’

     Once again, we must understand that the Constitution is, and must be understood to be, superior to ordinary constitutional law. This distinction must be respected. To do otherwise, as Lincoln once said, ‘is to submit to government by judiciary.’”

It is amazing to me how far we as a nation, as a collective people, have strayed from the principles of individual liberty. Too many people believe they must check with the federal government to see what their rights are and what their Constitution means. Sadly, Mark Levin is one of those Americans.

Here is my biggest problem with Mr. Levin’s promotion of his “Liberty Amendments” – aside from his outright rejection of Nullification: The government has consistently and unabashedly overstepped its authority in the Constitution when it has suited its purposes. In fact, there has rarely been a time when it confined itself to the articles which were delegated to it by the People and the States. Yet Mr. Levin is adamant that the People, in order to try and regain the rights they are entitled to and the proper (and limited) scope of government in their lives, MUST abide strictly by what the Constitution allows them to do.  Again, never mind that the People nor the States ever assented to the changes that the federal government assumed for itself under the Constitution that SHOULD HAVE BEEN made legally through the Article V amendment process….. Mr. Levin still is steadfast that the People need to go through the arduous amendment process in order to get the government to do what it is/ was constitutionally REQUIRED to do.

Being the Deputy Director of the North Carolina Tenth Amendment Center, I naturally am disappointed that Levin has publicly rejected Nullification.  Mr. Levin says that Nullification is not a viable option in limiting the size and scope of the federal government.  When considering how to restore the government to its constitutional limits, he takes the position that Nullification should never be a remedy that is on the table.  In other words, he believes that the People should be carefully, strictly, and narrowly limited in their ability to define and constrain their government. He believes that the only options available should be those both expressly provided in the Constitution and NOT foreclosed by any decision, determination, or proclamation by the government itself.

Michael Maharrey, with the Tenth Amendment Center, defines Nullification as, “those of us with the authority to say no to the federal government executing that authority.”  As every supporter of Nullification knows, the individual states pre-existed the federal government.  While there were some founders (Nationalists) who wanted a national government with a general veto power over any and all legislative acts of the states which it disagreed with, this position was flatly rejected by the majority of delegates (Federalists) to the Constitutional Convention who thought it was the States that needed to be the parties with the veto power over the federal government. These Founders included James Madison and Thomas Jefferson (who may not have been at the Convention but was in constant contact with Madison regarding the task at hand).  As Maharrey explains: “The states created the federal government and enumerated power to it.”  In his writings and when he presents, he is quick to cite Madison’s famous Federalist No. 45 to emphasize the limits of such power enumerated by the states to the federal government, particularly in Article I, Section 8:

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.”

Nullification - Michael Maharrey 2013

Maharrey explained that outside of those few and defined powers, everything else, all other power, is reserved and resides in the sovereignty of the individual people and in the states, in accordance to the Ninth and Tenth Amendments to the Constitution.  Nullification, in short, stands for the proposition that the federal government CANNOT be permitted to hold a monopoly over the interpretation of the Constitution and the definition of its powers and scope of government.  Government is a “creation” of the People and not its ruler.

If our Founding Fathers and founding revolutionaries had taken Mark Levin’s approach towards government, the colonies would never have had any legal ground to sever ties with Great Britain and the Articles of Confederation would still be the legally operable constitution that unites our states (since the people themselves were never apprised of the real purpose of the Convention – to scrap the government created by the Articles of Confederation, to start from scratch, and to draft a new Constitution and create a new government – and hence the delegates were without proper authority to do what they did).

Thomas Jefferson wrote: “That if those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by 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 color of that instrument, is the RIGHTFUL REMEDY.”   [Kentucky Resolutions of 1799]

James Madison, in his Notes on Nullification (1834), explained: “…when powers are assumed which have not been delegated, a nullification of the act” is “the natural right, which all admit to be a remedy against insupportable oppression…”

In the Virginia Resolutions of 1798, Madison wrote: “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 (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are 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…”

At North Carolina’s ratifying convention, James Iredell told the delegates that when ‘Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.’  In December 1787, Roger Sherman of Connecticut observed that an ‘excellency of the constitution’ was that ‘when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.’”

I’ll take James Madison and Thomas Jefferson and even James Iredell, the men who defined our liberty, as authorities on what is constitutional or not over Mr. Levin.

Constitutional attorney, Publius Huldah, recently wrote: “Resistance to tyranny is a natural right – and it is a duty.”   I’ll support Ms. Huldah’s position anyday over those attorneys who oppose Nullification.  Ms. Huldah sides with the People and their Natural Rights.  Those other attorneys side with a centralized, all-powerful and all-knowing government – the very thing we fought a Revolution to rid ourselves of.

In the United States, natural rights are protected by government and not violated by it.  At least that was the American ideal.

Nullification is the Rightful Remedy when you understand the simple truth – that anytime the federal government oversteps its constitutional bounds, it is taking away OUR liberty and our right to govern ourselves.  The federal government is not just stepping on the States’ rights, but it is a usurpation of INDIVIDUAL liberty.  Nullification is our immediate remedy to re-assert and reclaim those rights.  Read the Declaration of Independence again.  All government power comes from the individual.  “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.  That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….”  Constitutions are written to define what powers the people have consented to give government. Constitutions are a permanent and fixed manifestation of the will of the people as to what inherent powers of self-government they agree to delegate to a common government for their behalf.   They are to be strictly construed and always read in a light most favorable to the individual since it is the individual from whom the power arises and the individual who has the most to lose.  Constitutions are not to be re-interpreted, misconstrued, re-labeled, or diminished in any way, shape, or form. They are not supposed to be “worked upon by the temper of the times.”  All power not expressly delegated resides in the People. Any attempt by a government to assume more powers than it was delegated naturally is a usurpation of the inherent rights and liberties of the People.

Again, as Thomas Paine wrote in his Rights of Man (1791): “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.”  For anyone who wishes to dismiss Thomas Paine in any discussion of our founding government principles, consider this. It was Thomas Paine that George Washington had his men read as they pressed on in tattered clothes and bloodied bare feet and without pay to fight the Revolutionary War.  Washington wanted his men to understand full well what they were fighting for in America’s quest for independence and the right to govern as they saw fit in order to secure their God-given rights. No man would rightfully sacrifice his life to substitute one tyrant government for another.

When any government continues to usurp the powers of the People, or believes its powers to be more important than the rights of the People to limit their government, or to continue to redefine its powers, it becomes tyrannical. Our Constitution explicitly empowered every American with the right to limit their government. “

That whenever any Form of Government becomes destructive of these ends, it is the right of the People to alter or to abolish it, and to institute new Government…”   The federal government has no right or power to interfere with the right of the People to do so.  Similarly, it has no right to take away the remedy of Nullifcation.

Thomas Woods, author of the best-selling book Nullification: How to Resist Federal Tyranny in the 21st Century asks: “How can the Supreme Court, part of an agent of the states, have the absolutely final say, even above the sovereign entities that created it?” As Madison explained in his Report of 1800, the courts have their role, but the parties to the Constitution naturally have to have some kind of defense mechanism in the last resort.

The Tenth Amendment was added, along with the rest of the Bill of Rights, as an express “further limitation” on the federal government. In other words, the federal government would be limited by the recognition and assertion of States’ Rights and States’ powers.  The preamble to the Bill of Rights states clearly that “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 other words, the parties that created and signed the Constitution (which then created the federal government) insisted that the Ninth and Tenth Amendments be added in order to more emphatically limit the federal government (all branches) through an emphasis on States’ rights and People’s rights. As such, the Supreme Court has no power to limit the power of the States in its ability to hold the federal government in check. The Bill of Rights is supposed to limit the government; the courts can’t limit the Bill of Rights.  After all, the Bill of Rights is also a limit on the federal courts !!

In conclusion, one only has to look at the enormity of the constitutional crisis we currently face and then look at the likely chance that Mr. Levin’s Article V Convention will offer any real relief.  It is very unlikely that our constitutional republic can be properly restored under that scenario – at least not in the near future. The American people are growing too restless and frustrated to wait.  In his article about a Nullification event in Wisconsin, Christian Gomez wrote: “As Washington continues to show no signs of retreating from its expansionist federal polices, encroachment in the lives of individuals, interference in healthcare, the free market, and violating the Constitution, the battle is not lost. Nor is it far from over, but it could be: ‘All it takes for evil to succeed is for a few good men to do nothing,’ Edmund Burke once said. In the case of the Restoring the Republic gathering in Pewaukee, Wisconsin, it is clear that more than just a few good men and women have no intention of doing nothing. So long as the people can be educated about Nullification, then hope is not fleeting.”

References:

Thomas Woods, “Is Nullification Unconstitutional?,” February 5, 2013.  Referenced at:  http://www.tomwoods.com/blog/is-nullification-unconstitutional/

Christian Gomez, “’Restoring the Republic’ Event in Wisconsin Addresses Nullification,” The New American, September 25, 2013.  Referenced at: http://www.thenewamerican.com/usnews/constitution/item/16619-restoring-the-republic-event-in-wisconsin-addresses-nullification

Publius Huldah, “Mark Levin Refuted: Keep the Feds in Check with Nullification,” Freedom Outpost, September 14, 2013.  Referenced at:  http://freedomoutpost.com/2013/09/mark-levin-refuted-keep-feds-check-nullification-amendments/

Cooper v. Aaron, 358 U.S. 1 (1958)

Ableman v. Booth, 62 U.S. 506 (1859)

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

Edwin Meese III, “The Law of the Constitution.”  A Speech delivered to Tulane University on October 21, 1986.  Referenced at:  http://www.justice.gov/ag/aghistory/meese/1986/10-21-1986.pdf

Federalist No 45.  http://avalon.law.yale.edu/18th_century/fed45.asp

James Madison, Report of 1800.  http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=875&chapter=63986&layout=html&Itemid=27

APPENDIX:

Ableman v. Booth (1859)  -

The Court noted:  “It appears that the State court has not only claimed and exercised this jurisdiction, but has also determined that its decision is final and conclusive upon all the courts of the United States, and ordered their clerk to disregard and refuse obedience to the writ of error issued by this court, pursuant to the act of Congress of 1789, to bring here for examination and revision the judgment of the State court.”

It went on to explain why the federal government and the Supreme Court must be supreme in their particular spheres of authority:

The Constitution was not formed merely to guard the States against danger from foreign nations, but mainly to secure union and harmony at home, for if this object could be attained, there would be but little danger from abroad, and, to accomplish this purpose, it was felt by the statesmen who framed the Constitution and by the people who adopted it that it was necessary that many of the rights of sovereignty which the States then possessed should be ceded to the General Government, and that, in the sphere of action assigned to it, it should be supreme, and strong enough to execute its own laws by its own tribunals, without interruption from a State or from State authorities. And it was evident that anything short of this would be inadequate to the main objects for which the Government was established, and that local interests, local passions or prejudices, incited and fostered by individuals for sinister purposes, would lead to acts of aggression and injustice by one State upon the rights of another, which would ultimately terminate in violence and force unless there was a common arbiter between them, armed with power enough to protect and guard the rights of all by appropriate laws to be carried into execution peacefully by its judicial tribunals.

The language of the Constitution by which this power is granted is too plain to admit of doubt or to need comment. It declares that:

This Constitution, and the laws of the United States which shall be passed in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.’

But the supremacy thus conferred on this Government could not peacefully be maintained unless it was clothed with judicial power equally paramount in authority to carry it into execution, for if left to the courts of justice of the several States, conflicting decisions would unavoidably take place, and the local tribunals could hardly be expected to be always free from the local influences of which we have spoken. And the Constitution and laws and treaties of the United States, and the powers granted to the Federal Government, would soon receive different interpretations in different States, and the Government of the United States would soon become one thing in one State and another thing in another. It was essential, therefore, to its very existence as a Government that it should have the power of establishing courts of justice, altogether independent of State power, to carry into effect its own laws, and that a tribunal should be established in which all cases which might arise under the Constitution and laws and treaties of the United States, whether in a State court or a court of the United States, should be finally and conclusively decided. Without such a tribunal, it is obvious that there would be no uniformity of judicial decision, and that the supremacy, (which is but another name for independence) so carefully provided in the clause of the Constitution above referred to could not possibly be maintained peacefully unless it was associated with this paramount judicial authority.

The same purposes are clearly indicated by the different language employed when conferring supremacy upon the laws of the United States, and jurisdiction upon its courts. In the first case, it provides that this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme law of the land, and obligatory upon the judges in every State.

The words in italics show the precision and foresight which marks every clause in the instrument. The sovereignty to be created was to be limited in its powers of legislation, and if it passed a law not authorized by its enumerated powers, it was not to be regarded as the supreme law of the land, nor were the State judges bound to carry it into execution. And as the courts of a State, and the courts of the United States, might, and indeed certainly would, often differ as to the extent of the powers conferred by the General Government, it was manifest that serious controversies would arise between the authorities of the United States and of the States, which must be settled by force of arms unless some tribunal was created to decide between them finally and without appeal.

This judicial power was justly regarded as indispensable not merely to maintain the supremacy of the laws of the United States, but also to guard the States from any encroachment upon their reserved rights by the General Government. And as the Constitution is the fundamental and supreme law, if it appears that an act of Congress is not pursuant to and within the limits of the power assigned to the Federal Government, it is the duty of the courts of the United States to declare it unconstitutional and void. The grant of judicial power is not confined to the administration of laws passed in pursuance to the provisions of the Constitution, nor confined to the interpretation of such laws, but, by the very terms of the grant, the Constitution is under their view when any act of Congress is brought before them, and it is their duty to declare the law void, and refuse to execute it, if it is not pursuant to the legislative powers conferred upon Congress. And as the final appellate power in all such questions is given to this court, controversies as to the respective powers of the United States and the States, instead of being determined by military and physical force, are heard, investigated, and finally settled with the calmness and deliberation of judicial inquiry. And no one can fail to see that, if such an arbiter had not been provided in our complicated system of government, internal tranquillity could not have been preserved, and if such controversies were left to arbitrament of physical force, our Government, State and National, would soon cease to be Governments of laws, and revolutions by force of arms would take the place of courts of justice and judicial decisions.

We do not question the authority of State court or judge who is authorized by the laws of the State to issue the writ of habeas corpus to issue it in any case where the party is imprisoned within its territorial limits, provided it does not appear, when the application is made, that the person imprisoned is in custody under the authority of the United States…..

No State judge or court, after they are judicially informed that the party is imprisoned under the authority of the United States, has any right to interfere with him or to require him to be brought before them…..   Now, it certainly can be no humiliation to the citizen of a republic to yield a ready obedience to the laws as administered by the constituted authorities. On the contrary, it is among his first and highest duties as a citizen, because free government cannot exist without it. Nor can it be inconsistent with the dignity of a sovereign State to observe faithfully, and in the spirit of sincerity and truth, the compact into which it voluntarily entered when it became a State of this Union. On the contrary, the highest honor of sovereignty is untarnished faith. And certainly no faith could be more deliberately and solemnly pledged than that which every State has plighted to the other States to support the Constitution as it is, in all its provisions, until they shall be altered in the manner which the Constitution itself prescribes. In the emphatic language of the pledge required, it is to support this Constitution.  And no power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws, and for that purpose to bring here for revision, by writ of error, the judgment of a State court, where such questions have arisen, and the right claimed under them denied by the highest judicial tribunal in the State.

The Fugitive Slave Act is fully authorized by the Constitution of the United States.”  [pp. 516-525]

Is Nullification Unconstitutional

By Thomas Woods, February 5, 2013

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

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 of and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union.  The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.  The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states.  The peoples of the states are the sovereigns.  It is they who apportion powers between themselves, their state governments, and the federal government.  In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that dangerous powers not delegated, may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and consequently that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another, by the judiciary, as well as by the executive, or the legislature.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my article: “Nullification: Answering the Objections,” by Tom Woods, Liberty Classroom [http://www.libertyclassroom.com/objections/ ] and/or pages 288-290 of my book Nullification.

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