By Diane Rufino
“He has erected a multitude of new offices, and sent swarms of officers to harrass our people… “
“He has combined with others to subject us to a jurisdiction foreign to our Constitution…..”
“For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments.”
“For depriving us in many cases, of the benefits of trial by jury.”
“For transporting us overseas to be tried for pretended offences.”
“He has abdicated government here, by declaring us out of his protection and waging war against us.”
“He has excited domestic insurrections amongst us….”
No, the charges above are not directed at President Obama, but rather are some of the grievances that our founding patriots had against King George II. These grievances were listed in the Declaration of Independence, as written by Thomas Jefferson, as examples of the “repeated injuries and usurpations” levied against the colonists at the hands of the King, “all having in direct object the establishment of an absolute Tyranny over these States.” These grievances were listed as proper justification for the separation (indeed, the ‘secession’) from England. “When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
Our early settlers left their homes, braved treacherous seas, and came to America’s wilderness shores as proud English subjects in search of a life with greater freedom of religion. The blood surging in their veins was the same blood that surged through the veins of hundreds of years of English subjects, all focused on the same goals – restoring Saxon common law, limiting the power of the King, acknowledging the fundamental civil rights of all individual rights, and instituting a resolute national charter establishing proper boundaries of government with respect to those rights. Their grand notions of liberty came from the Magna Carta (1215) and the great constitutional documents of the 17th century [the Petition of Right of 1628, the Habeas Corpus Act of 1679, and the English Bill of Rights of 1689], as well as from the Bible and the works of such Enlightenment philosophers as John Locke (“the Philosopher of Freedom”). Their experiment in colonizing a new world, governing themselves, and exercising the liberties they carried with them from England for their most useful and productive purposes emphasized to them that Man is a sovereign being, endowed by the Creator with certain unalienable rights, that among them are Life, Liberty and the pursuit of Happiness, and that to secure those rights, governments must derive their just powers from the consent of the governed. As their own experience with the English Crown taught them, whenever any form of government becomes destructive of those ends, it is the right of the people, as sovereign beings who are never naturally divested of their inherent natural and fundamental rights, to alter or to abolish it, and to institute a new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to affect their safety and happiness. The history of the English people, indeed most of the world, has shown that when government becomes despotic and evinces a design to reduce them to a role of oppressive subservience, the people fight back in order to regain the freedom they are entitled to.
Our Founders made sure they provided for the proper avenues to counter a government that evinces such a design and even provided for the right to abolish that government. The proper avenue, as discussed in this article, is Nullification (and/or Interposition), and the rights – the natural rights – are those of self-defense, self-determination, and self-preservation, all based on free will. The natural right of free will, indeed the very basis of human life and the foundation of almost all religions, is a HUMAN right. Governments, on the other hand, have no inherent rights. They require constitutional authority to act.
Nullification —
“Nullify” – to make legally null and void; to invalidate (Webster’s Dictionary)
Nullification is a term introduced by Thomas Jefferson in 1798 when he drafted the Kentucky Resolves to articulate the reason for the state to oppose an unconstitutional federal law – the Alien and Sedition Acts. Nullification begins with the central premise that a federal law that violates the Constitution is no law at all. It is void and has no effect. It has no force of law. It is unenforceable. But it goes one step further. If a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact (see later), to declare it so and thus refuse to enforce it. It would be foolish to wait for the federal government, or a branch thereof, to condemn its own law or censure its own conduct. Nullification provides the necessary “shield” between the people of a state and an unconstitutional law or policy (even judicial decision) from the federal government.
Our Founders labored and debated extensively over how to establish a nation governed by limited federal government. But one question remained: What can be done if the government violates the very Constitution which defines it? What protections are available for the people? In fact, that question became very urgent in 1798 when the government enacted the Alien and Sedition Acts and attempted to quash free speech.
Thomas Jefferson articulated the most effective option – Nullification, or as he called it, “the Rightful Remedy.” James Madison articulated a very similar option, which he termed “interposition.”
When John Adams was elected president in 1796, tensions were very strained between the United States and France. It quickly escalated to the Quasi War (as it was called; an undeclared war) which would last until 1800. During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. [The Naturalization Act, the Alien Friends Act, the Alien Enemies Act, and the Sedition Act]. It was the Sedition Act which caused the greatest concern to the Republicans of the day and they challenged it on constitutional grounds. The Act established fines and jail time for “any person who shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either of any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.”
Convictions began to follow. Many honorable men were silenced under the Sedition Act, including those who fought in the War for Independence and one US Congressman. Those particularly impacted were political writers, whose livelihoods were built on the critical analyses of government. As one convicted writer, Thomas Cooper, wrote about the impact of the convictions and subsequent trials: Americans “may learn some useful lessons… they will hold their tongues and restrain their pens on the subject of politics.”
The Sedition Act immediately sent up constitutional red flags to many of our Founders, although it appeared to be partisan in nature. Congress, dominated by Federalists, pointed to the “General Welfare” and “Necessary and Proper” clauses of the US Constitution for justification to pass these pieces of legislation. The President, John Adams, was a Federalist, and seemed to have no problem with the law. The Vice President, Thomas Jefferson, was a Republican, and he had a big problem with it. Even though the Act did not protect him (it protected the President and members of Congress only), it was his opinion that the protections of free speech apply most aggressively for political speech. He believed that when one enters politics, he should expect public criticism.
Jefferson pondered what remedies could be taken against this overtly unconstitutional act, including judicial review, nullification (he called the Sedition Act “a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image”), and secession (which he believed was a state’s inherent and natural right, stemming from the principles of self-government and self-determination). He felt secession was extreme and judicial review untrustworthy. The Supreme Court at the time was packed with Federalists and already Jefferson was suspicious of its ability to correctly interpret the Constitution of our Founders. The Court was already looking to the elastic clauses as sources of extra federal power instead of the qualifiers that they were intended to be. Jefferson was sure it would uphold the constitutionality of the Alien and Sedition Acts. But more importantly, Jefferson saw the Supreme Court as part of the problem. For one, it was itself a branch of the federal government and thus not an impartial arbiter. As he reasoned, the Supreme Court was a branch of the institution which engaged in a power struggle with the states. Secondly, it was comprised of human beings, who like the rest of mankind, are subject to passions, ambitions, allegiances, whims, and depravities. As he wrote: “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.”
Thomas Jefferson and James Madison then began a series of correspondence throughout 1798 over their joint concern over the Alien and Sedition Acts, their discussions over the proper state response, and for the future of the constitutional republic. Jefferson drafted a series of resolutions that addressed several things, including the following: (1) it described the nature of the federal union; (2) it condemned the Alien and Sedition Acts as gross violations of the Constitution; and (3) it considered the proper response to be taken by the states. In fact, both man drafted separate resolutions.
Jefferson’s resolutions articulated his entire theory of the federal union and therefore explain the nature of our newly-established independent nation. “Every State has a natural right in cases not within the compact (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits. Without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them,” he wrote. He gave a copy of his resolutions to his friend and neighbor, Wilson Cary Nicholas, who was a member of the Virginia Senate, who also shared them with John Breckinridge, a member of the Kentucky legislature and who just happened to be passing through Virginia at the time. These resolutions, with some modifications, would become the Kentucky Resolves of 1798 and would articulate and memorialize the Jeffersonian view of the nature of the United States. The Kentucky Resolves stated, in part:
1. Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a compact under the style and title of a Constitution for the United states, and of amendments thereto, they constituted a general government for specific purposes – delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
In November 1799, the Kentucky legislature approved follow-up resolutions to those of the previous year, for the purpose of addressing the comments of those states who had not received Jefferson’s resolutions favorably. It was in the Kentucky Resolutions of 1799 that the word “Nullification” was used for the first time in an official document to describe Jefferson’s states’ rights’ remedy:
“Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, 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, agreeably 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 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: That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the 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. That although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from whatever branch offered, to violate that compact. And finally, in order that no protests or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does not enter against them, its solemn PROTEST.”
Likewise, the resolutions that James Madison would become the Virginia Resolves of 1798. In part, it read:
“Encroachments springing from a government whose organization cannot be maintained without the cooperation of the States, furnish the strongest excitements upon the State legislatures to be watchful, and impose upon them the strongest obligation to preserve unimpaired, the line of partition (talking about our federal system; state v. federal powers).
The General Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that, for this end, it is its duty to watch over and oppose every infraction of those principles, which constitute the only basis of that Union, because a faithful observance of them can alone secure its existence and the public happiness…
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…
That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy…..”
*** The “certain general phrases” that Madison was referring to are the elastic clauses of the Constitution – the “Necessary & Proper” clause and the “General Welfare” clause. I don’t believe they attempted to enlarge the “Commerce” clause at that time.
The principle of Nullification is a States’ Rights Remedy (termed the “Rightful Remedy”) inherent in the states’ reserved powers under the Tenth Amendment and founded in the Compact Theory of Federalism to limit the power and scope of the federal government as it attempts to govern and expand its powers beyond those that are clearly, specifically, and intentionally enumerated in the US Constitution. The principle also underlies the message of Article VI, section 2 (The Supremacy Clause), which states that the Constitution and all laws made in furtherance of, …. are to be considered the supreme law of the land. This principle affirms that the states, the parties to the compact which created and gave breath to the federal government with specificity, have the right – even the duty – to declare when federal laws and other official acts exceed the powers delegated to the federal government in the Constitution.
In summary, the principle of “nullification” is based on the convergence of pre-Republic and constitutional duties and the text of the Constitution which is consistent with pre-constitutional concepts related to a state’s organic documents in general. A clear understanding of the requirements and basis of these duties and legal principles is necessary for a usable and defendable position in support of “nullification.”
The Basis of Nullification: Federalism and Compact Theory —
Often we refer to our government as a “federal’ government without really understanding what it means. To state that our government is a “national” government, on the other hand, would imply something completely different. A “federal” government implies that we are a federation of sovereign states which has granted or transferred some its authority to a government to serve, maintain, and support the union. A federal government implies a limited government that respects the sovereign powers of the states. It implies a government that “serves” the individual states. Indeed, we have a federal republic where the individual states come together and have joint deliberations in government, but those deliberation do not impair the sovereignty of each member.
We did not create a nationalistic entity – that is, a “national” government – which would imply that the sovereign powers of the states have been sacrificed to an all-powerful government. “Nationalism” was not on our Founders’ minds, and for good reason. The delegates at the Constitutional Convention in 1787 nearly unanimously rejected that notion in favor of federalism. Nationalism is the unhealthy love of one’s government, accompanied by the aggressive desire to build that governmental system to a point that it is above all else, and becomes the ultimate provider for the public good. Nationalism puts the nation before the Individual. We call our founding settlers and Founding Fathers “patriots” and not “nationalists.” Patriotism is love of country, Nationalism is love of government.
“Federalism” is widely regarded as one of America’s most valuable contributions to political science. It is the constitutional division of powers between the national and state governments – one which provides the most powerful of all checks and balances on the government of the people. It is the foundation upon which our individual rights remain most firmly secured.
James Madison, “the Father of the Constitution,” explained the constitutional division of powers this way in Federalist Papers No. 45: “The powers delegated 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, such as war, peace, negotiation, and foreign commerce..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.” Furthermore, Thomas Jefferson who declared the boundaries of government on the individual in the Declaration of Independence, emphasized that the states are not “subordinate” to the national government, but rather the two are “coordinate departments of one simple and integral whole. The one is the domestic, the other the foreign branch of the same government.”
The principle of Federalism was incorporated into the Constitution through the Tenth Amendment, which states: “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.” It is similar to an earlier provision of the Articles of Confederation which asserted: “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”
Our Founders had very good reason to draft the provisions in such terms and the states had very good reason to ratify the Tenth amendment on December 15, 1791. The issue of power – and especially the great potential for a power struggle between the federal and the state governments – was one that was very important at the time our Founding Fathers were trying to fashion an institution to serve the united purposes of the states. They deeply distrusted government power, and their goal was to prevent the growth of the type of government that the British has exercised over the colonies. They weren’t willing to trade one tyrant government for another.
As history clearly records, adoption of the Constitution of 1787 was opposed by a number of our most important and well-known patriots – including Patrick Henry, Samuel Adams, Thomas Jefferson, and others. They passionately argued that the Constitution would eventually lead to a strong, centralized state power which would destroy the individual liberty of the People. These opponents would be termed the “Anti-Federalists,” which is actually a misnomer of a name because they were the strongest supporters of the states’ sovereign powers. [The Federalists were the group who won the day at the Constitutional Convention in Philadelphia in 1787]. It was because of the strength of their arguments, their persistence, their intellectual influence through many writings in widespread publications, and the very track record of history that led to the addition of the Tenth Amendment to the US Constitution.
As the Supreme Court acknowledged in 1931 in the case of United States v. Sprague: “The Tenth Amendment was intended to confirm the understanding of the people at the time the Constitution was adopted, that powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified.”
It is exceedingly clear that the Tenth Amendment was written and adopted to emphasize the limited nature of the powers delegated to the federal government. In delegating just specific powers to the federal government, the states and the people, with some small exceptions, were free to continue exercising their sovereign powers.
Besides the principle of Federalism, another foundation upon which the doctrine of Nullification is based is the “Compact Theory of Federalism.” This theory was explained and emphasized by Thomas Jefferson in the series of resolutions he wrote which would become the Kentucky Resolves of 1798. The compact theory states that our federal government was formed through an agreement by all of the states. That agreement (compact), our US Constitution, was ratified by all the original states and adopted by every additional state that entered the Union. The Constitution, as an agreement, and like all other agreements (or contracts), set out specific conditions, responsibilities, and limitations on the part of the parties. The parties to the compact were the states themselves and not the federal government. The federal government was merely a creation of the Constitution. Also, as with all contracts and agreements, the federal compact is limited by its language and by the intent when it was entered into. It is only legally enforceable under such conditions. In other words, the government is only legal for the specific purpose it was ratified for and under the precise terms (except for amendments properly adopted through the Article V amendment process). In other words, the Constitution is a contact between the individual states which they can break. And this was precisely what Thomas Jefferson referred to in his Declaration of Independence when he wrote the words:
“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, —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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.”
To look at the frame of mind of the states when they adopted the Constitution, look at their comments in the ratifying conventions and look at the terms they used. The terms included “compact” and “agent” (meaning the federal government was intended to be an agent of the states). This is the best indicator of the foundations of our system of government. It is not for us to redefine those foundations. And it is certainly not for the federal government to do so. Again, it wasn’t even a party to the compact; it was the creation.
South Carolina’s Declaration of Causes of Secession (“Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union”) adopted on December 24, 1860, provides a nice summary of the establishment of our country:
(With respect to the Declaration of Independence of 1776)… “Thus were established the two great principles asserted by the Colonies, namely: the right of a State to govern itself; and the right of a people to abolish a Government when it becomes destructive of the ends for which it was instituted. And concurrent with the establishment of these principles, was the fact, that each Colony became and was recognized by the mother Country a FREE, SOVEREIGN AND INDEPENDENT STATE.
In 1787, Deputies were appointed by the States to revise the Articles of Confederation, and on 17th September, 1787, these Deputies recommended for the adoption of the States, the Articles of Union, known as the Constitution of the United States.
The parties to whom this Constitution was submitted were the several sovereign States; they were to agree or disagree, and when nine of them agreed the compact was to take effect among those concurring; and the General Government, as the common agent, was then invested with their authority.
If only nine of the thirteen States had concurred, the other four would have remained as they then were– separate, sovereign States, independent of any of the provisions of the Constitution. In fact, two of the States did not accede to the Constitution until long after it had gone into operation among the other eleven; and during that interval, they each exercised the functions of an independent nation.
By this Constitution, certain duties were imposed upon the several States, and the exercise of certain of their powers was restrained, which necessarily implied their continued existence as sovereign States. But to remove all doubt, an amendment was added, which declared 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. On May 23, 1788, South Carolina, by a Convention of her People, passed an Ordinance assenting to this Constitution, and afterwards altered her own Constitution, to conform herself to the obligations she had undertaken.
Thus was established, by compact between the States, a Government with definite objects and powers, limited to the express words of the grant. This limitation left the whole remaining mass of power subject to the clause reserving it to the States or to the people, and rendered unnecessary any specification of reserved rights.
We hold that the Government thus established is subject to the two great principles asserted in the Declaration of Independence; and we hold further, that the mode of its formation subjects it to a third fundamental principle, namely: the law of compact. We maintain that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement, entirely releases the obligation of the other; and that where no arbiter is provided, each party is remitted to his own judgment to determine the fact of failure, with all its consequences.”
South Carolina’s Declaration of Causes goes on to emphasize that stipulations in the Constitution were so material to the compact that without them, the compact itself would never have been made.
Can you imagine a reasonable person entering into an agreement of significant consequence without knowing how that document/agreement will be changed or interpreted in the future? No party would enter into such an agreement – especially with such enormous consequences as the States did in 1787.
Since Marbury v. Madison (1803), the Supreme Court has been seen as the final arbiter as to the meaning and interpretation of the Constitution. But why should the Court, or any federal court for that matter, be such a final arbiter? They are, after all, a branch of the federal government. How can such courts truly be expected to be a fair umpire for the States, especially when it was the States themselves, the parties to the compact (contract), which understood and meaning and intent of the Constitution and the purpose for the federal government. The foundational point upon which nullification rests is that the federal government cannot and must not be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to evaluate the extent of its own powers, it will continue to grow, regardless of elections, the separation of powers, and all the other limits and checks and balances built into our system of government. This is precisely what Thomas Jefferson and James Madison warned about when they crafted the Kentucky Resolves of 1798 and Virginia Resolves of 1798.
Sure, the Supreme Court has been historically seen as the ultimate and “infallible” judge of the constitutionality of the laws and actions of the federal government. But we can’t forget that the Supreme Court is itself a branch of the federal government. In a dispute between the states and the federal government, is it reasonable to assume that the federal government can always come up with an unbiased resolution? (We’ve seen how resolutions have turned out over the years, as the states have been systematically stripped of their powers, rights, and obligations). Jefferson believed that under this arrangement, where the Supreme Court is the ultimate and “infallible” judge of the meaning of the constitution and the constitutionality of federal actions, the states would inevitably be eclipsed by the interests and ambitions of the federal government. As Judge Spencer Roane of Virginia (1762-1822) wrote: “It has, however, been supposed by some that the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States (government) on the other, in all questions touching on the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid for by the other party.”
Virginia Nullifies the “Indefinite Detention of American Citizens” Provision of the National Defense Authorization Act (NDAA) —
“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.” — the Preamble to the Bill of Rights
It is a good thing the doctrines of nullification and interposition are being revived. Perhaps it’s the urgency of the constitutional crisis we face that has made the doctrines so appealing and sensible. One notable example of its recent application is with the “indefinite detention” provision of the National Defense Authorization Act (NDAA), which declares the United States to be a battlefield and allows the President to apply the rules of war to American citizens, which includes the right to indefinitely detain, ship to detention centers overseas, interrogate, torture, subject to military tribunal, or kill. The NDAA was passed to extend the authority to fight terror that was granted under the 2001 AUMF (Authorization for Use of Military Force), except that while the AUMF was intended to apply only to those associated specifically with the events of 9/11, the NDAA creates a second classification of targets that the president can apply military law to – American citizens. [Section 1021(b)(2) defines this new target as: “A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”] It is this new classification that is at the core of the controversy and the heart of the opposition. It is perhaps significant that the government, ever since the Civil War, has been looking for power to target citizens for anti-government conduct in excess of what the Constitution has already granted.
Article III of the Constitution – the “Treason Clause” – provides the only constitutional trial remedy for those who make war against their own nation or give aid and comfort to its enemies. Up to the Civil War, in every rebellion, from Shay’s rebellion, to the Whiskey Rebellion, to Aaron Burr’s attempt to raise an Army against the U.S., to John Brown’s attack on Harper’s Ferry, each person tried for their actions of taking up arms against their nation or aiding the enemy were tried for treason, before a jury, in a civilian court. None of them were brought before a military tribunal. If the Founders had intended to give the military jurisdiction over such people, what was the point of the Treason Clause?
Furthermore, Article I, Section 9, clause 2 – the Habeas Suspension Clause – allows for the suspension of habeas corpus, but only by an act of Congress. [“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it.”] Habeas suspension, which can be done only by congressional statute, would deny an individual access to the courts altogether. Luckily it is limited to times of actual invasion or rebellion and luckily it is subject to the principle of separation of powers. A person either has full access to courts that must rigorously assess the violation to the person’s Bill of Rights or has no access to courts at all (yet still retaining his full complement of rights). Under the NDAA, a person that is targeted by the government loses his civil rights altogether. Finally, such a habeas suspension only allows detention, not trial by tribunal, and it also does not “make it legal” for the government to torture people, or summarily execute them. The protections embraced by the Bill of Rights are not suspended, only the ability to challenge their violations in court.
Stewart Rhodes, a graduate of Yale Law school, wrote this senior thesis paper on the application of military law (law of war) to American citizens for which he won the “Judge William E. Miller” Prize in 2004 for best paper on the Bill of Rights and has since written other analyses of the history of “enemy combatant status.” He explains how Abraham Lincoln was the first president to try to do an end-run around the Bill of Rights. He wrote:
“Until the war on terrorism, this claimed power of the president to operate outside the Bill of Rights was asserted on only two other occasions in our history: The Civil War and World War II. In the Civil War, the southern states that broke away formed their own nation with a constitution, a legislature, a president, an army, and a navy. They printed their own money, sent and received ambassadors, etc. The North and South exchanged prisoners, followed the laws of war in the treatment of POWs, negotiated cease-fires and conducted a formal surrender at the end. Only in this anomalous situation of a civil war, where a part of the U.S. had broken off, were U.S. citizens from the South treated as foreign enemies for purposes of military jurisdiction. There was no way to avoid that, as all of the southerners were U.S. citizens till they broke away.
However, Lincoln did not just treat the citizens and soldiers of the rebel states as the enemy. During the Civil War, more than 13, 535 Northern civilians were arrested by the military and at least 4,271 of these were tried before military tribunals that answered only to him, with some of them being executed. Typical charges were vague accusations of violating the laws and customs of war. In one such case, a man was found guilty of violations of the laws of war for letting rebels lurk in his neighborhood without reporting them. Others were accused of harboring rebels or engaging in guerilla warfare.”
As most students of history know, the Supreme Court addressed Lincoln’s suspension of habeas corpus after the end of the war, in the landmark case of Ex parte Milligan (1866). Milligan was accused of plotting to kidnap the governor of Indiana, break into an Army armory and steal weapons, set Southern POWs free, and then spark an insurrection in Indiana so the South could invade. He was detained and tried by a military tribunal, found guilty, and sentenced to death. Luckily, the war ended before his execution and so the Supreme Court heard his challenge to the government’s denial of his rights of habeas corpus (which is what the term “ex parte” means). At issue was the treatment of Northern civilians as the “enemy” and therefore subjecting them to “justice” under military tribunals. The Court found this unconstitutional.
“The Milligan Court rejected the argument that a U.S. citizen could ever be an ‘enemy.’ The Court affirmed the use of military jurisdiction over two categories of persons: those in the U.S. military (and in the militia when called into service) and the enemy. In the peculiar circumstance of the Civil War, the Court had no problem at all with using military jurisdiction for detention and trial of the soldiers and even civilians of the breakaway South who had effectively renounced their U.S. citizenship. However, the Court pointed out that Mr. Milligan was not in the military (the Union Army) and was not a resident of one of the rebellious states. This is really the same as saying he was not a citizen or resident of a foreign nation with which we were at war. It did not matter to the Milligan Court what Milligan had done, or what laws of war he might have violated. What counted was who he was. If he was a northern civilian, he could not be tried by tribunal for any actions nor held as a POW or “unlawful combatant” because he just was not in one of the two categories of people subject to the military. He was a northern citizen who was making war on his nation and aiding the enemy. The proper remedy for such is a trial for treason, or at least for violation of a statute, before a jury in an Article III court, not a military trial.
What the Milligan Court upheld is the Constitution’s separation of civilian and military jurisdiction. The Founders, and the people who ratified the Constitution, were very concerned about overreaching military power. In fact, prior to the Revolution, the colonists had even been upset about British soldiers being tried by tribunals, rather than civilian juries, for offenses committed off duty. The colonists considered such tribunals a violation of the rights of Englishmen. The Founders knew the sad English history of the abuse of special military and executive courts, such as the infamous Star Chamber, during England’s many upheavals and coups and endeavored to prevent their recurrence.” [Stewart Rhodes, “Enemy Combatant Status”]
Star Chamber Courts (simply referred to as the Star Chamber) were arbitrary, corrupt, and maligned courts which were used with great notoriety during the 17th century to prosecute the political enemies of James I and his son Charles I. The judges appointed to the Star Chamber were the King’s own hand-picked men. The courts were known for their abuses, corruption, and misuse of authority precisely because of such concentration power in an autonomous group, which was not subject to the checks and balances of common law and which held its proceedings in secret.
9/11 and the War on Terror turned the Milligan case on its head. In 2001, Yaser Hamdi, an American citizen was captured by the US military in Afghanistan fighting for the Taliban. He was declared an “enemy combatant,” and transferred to a military prison in Virginia where he was held indefinitely and not given access to an attorney or charged with a crime and given a trial. Hamdi took his case to the Supreme Court, where he claimed the government violated his 5th Amendment right to Due Process. The government countered that the Executive Branch had the right, during wartime, to declare people who fight against the United States “enemy combatants” and thus restrict their access to the court system. Rather than affirm the principle established by Milligan, which stated that a US citizen, regardless of his conduct, is protected as an accused by the Bill of Rights, the Supreme Court referred to a dangerous decision by the FDR Court in 1942 known as Ex Parte Quirin, which held that the conduct of a citizen can determine whether he retains or loses the protections afforded by the Bill of Right. In a decision written by Justice Sandra Day O’Connor, the Court in Hamdi stated unequivocally that “there is no bar to this Nation’s holding one of its own citizens as an enemy combatant.” According to the majority on the Court, the mere labeling of a person as an “enemy combatant” removes the shield of the Bill of Rights and replaces it with a new judge-created system of minimal administrative process to “challenge” that designation.
The Quirin case, decided by a court packed and heavily influenced by FDR, a very powerful wartime president, should have never been decided as it was and should have never been “brought back to life” as a bright-line rule to bolster government conduct. It should have remained a “one-time, expedient decision to justify the predetermined actions of President Franklin D. Roosevelt,” as Rhodes puts it. On the night of June 13, 1942, eight German agents landed near Long Island, NY after traveling to the US by submarine to sabotage various US targets. They were wearing German uniforms and carried explosives when they landed. Thereafter, however, they buried their uniforms and supplies, and proceeded, in civilian dress, to various places in the United States. All had received instructions in Germany from an officer of the German High Command to destroy war industries and war facilities in the United States, for which they or their relatives in Germany were to receive salary payments from the German Government. They were subsequently arrested, charged with enemy conduct under the President’s Proclamation of July 2, 1942, detained, and, on the orders of President Roosevelt, tried by military commission. One of the men, Richard Quirin asserted that he was a US citizen. Like the others, Quirin was charged with “being an enemy of the United States and acting for . . . the German Reich, a belligerent enemy nation, secretly and covertly passed, in civilian dress, contrary to the law of war, through the military and naval lines and defenses of the United States . . . and went behind such lines, contrary to the law of war, in civilian dress . . . for the purpose of committing . . . hostile acts, and, in particular, to destroy certain war industries, war utilities and war materials within the United States.” The commission nonetheless found all eight men guilty and sentenced them to death. [The President’s Proclamation declared that all persons who are citizens or subjects of, or who act under the direction of, any nation at war with the United States, and who during time of war enter the United States through coastal or boundary defenses, and are charged with committing or attempting to commit sabotage, espionage, hostile acts, or violations of the law of war, “shall be subject to the law of war and to the jurisdiction of military tribunals.” It did not bar accused persons from access to the civil courts for the purpose of determining the applicability of the Proclamation to the particular case].
In a unanimous opinion authored by Chief Justice Harlan Fisk Stone, the Court concluded that the conspirators, (including Quirin as an American citizen), as spies without uniforms (violating the law of war) whose purpose was sabotage, violated the law of war and were therefore unlawful “enemy combatants.” The Court noted that it has long been an accepted practice by our military authorities to treat those who, during time of war, pass surreptitiously from enemy territory into our own, discarding their uniforms upon entry, for the commission of hostile acts involving destruction of life or property, as “unlawful combatants” punishable as such by military commission. According to Chief Justice Stone: “This practice, accepted and followed by other governments, must be regarded as a rule or principle of the law of war recognized by this Government by its enactment of the Fifteenth Article of War. Citizens of the United States who associate themselves with the military arm of an enemy government, and with its aid, guidance and direction enter this country bent on hostile acts, are enemy belligerents within the meaning of the Hague Convention and the law of war.” Noting that Congress had, under the Articles of War, authorized trial by military commission for unlawful enemy combatants under the Proclamation, and the German saboteurs were indeed “unlawful enemy combatants,” the Court therefore determined that the President had not exceeded his power. Since 1942 this decision hung around, waiting for the next wartime president to resurrect its powers. While the Milligan decision was concerned with the status of the detainee (ie, whether he fit into any of the two categories for which military law applies: US soldier or enemy) and declined to make the leap that an American citizen can be classified as an ‘enemy’ for justice sake, the Quirin decision arrived at the opposite position. After Quirin, we are only concerned with the actions of the accused (whether or not his actions reduce him to “enemy combatant status. The Milligan court got it right. In order to prevent the possible abuses of an Executive who might want to charge citizens with enemy status as a means to stifle political opposition, the Supreme Court urged future courts to diligently safeguard and uphold the Bill of Rights. Justice Davis, who wrote the opinion in the Milligan decision advised:
“…… These provisions [Bill of Rights], after a lapse of more than seventy years, are (now) sought to be avoided. Those great and good men who wrote the Constitution foresaw that troublous times would arise, when rulers and people would become restive under restraint, and seek by sharp and decisive measures to accomplish ends deemed just and proper; and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. The history of the world had taught them that what was done in the past might be attempted in the future. The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government.”
The NDAA, which codifies the decisions in Quirin and Hamdi, allows the President to suspend fundamental civil rights for those he suspects of waging war or aiding/comforting the enemy (… being a “belligerent”), to detain them indefinitely, torture them, and even kill them, without any of the procedural protections of our Bill of Rights: No Grand Jury indictment; no trial by jury with its requirement of a unanimous verdict of twelve of one’s peers; no possibility of an unreviewable acquittal and immunity from further prosecution; and no protection against compelled self incrimination. The presumption of innocence is gone, as is the requirement of a showing of guilt beyond a reasonable doubt. Instead, the government will enjoy a presumption that its allegations are accurate. The accused will have the burden of proving his innocence, but will have no right to compulsory process of witnesses and no right to confront the secret evidence and witnesses against him. The bill was supported by US legislators who claim that it cannot be used to target US citizens. Obviously, they fail to be properly informed. The bill is minimized by American citizens who believe that our government could and would never target American citizens and detain them indefinitely, denying them the protections under the Constitution. Obviously, they fail to understand history.
In the Virginia Ratifying Convention on June 6, 1866, Governor Randolph addressed the weaknesses of the proposed Constitution which at the time lacked a Bill of Rights:
“There is one example of this violation in Virginia, of a most striking and shocking nature — an example so horrid, that, if I conceived my country would passively permit a repetition of it, dear as it is to me, I would seek means of expatriating myself from it. A man, who was then a citizen, was deprived of his life thus: from a mere reliance on general reports, a gentleman in the House of Delegates informed the house, that a certain man (Josiah Philips) had committed several crimes, and was running at large, perpetrating other crimes. He therefore moved for leave to attain him; he obtained that leave instantly; no sooner did he obtain it, than he drew from his pocket a bill ready written for that effect; it was read three times in one day, and carried to the Senate. I will not say that it passed the same day through the Senate; but he was attainted very speedily and precipitately, without any proof better than vague reports. Without being confronted with his accusers and witnesses, without the privilege of calling for evidence in his behalf, he was sentenced to death, and was afterwards actually executed. Was this arbitrary deprivation of life, the dearest gift of God to man, consistent with the genius of a republican government? Is this compatible with the spirit of freedom? This, sir, has made the deepest impression on my heart, and I cannot contemplate it without horror. There are still a multiplicity of complaints of the debility of the laws. Justice, in many instances, is so unattainable that commerce may, in fact, be said to be stopped entirely. There is no peace, sir, in this land. Let us judge from the fate of more ancient nations: licentiousness (immorality) has produced tyranny among many of them: it has contributed as much (if not more) as any other cause whatsoever to the loss of their liberties. I have respect for the integrity of our legislatures; I believe them to be virtuous; but as long as the defects of the Constitution exist, so long will laws be imperfect.”
Rep. Ron Paul described the NDAA as “a bold and dangerous attempt to establish martial law in America.” He said: “The Bill of Rights has no exemptions for ‘really bad people’ or terrorists or even non-citizens. It is a key check on government power against any person. That is not a weakness in our legal system; it is the very strength of our legal system. The NDAA attempts to justify abridging the bill of rights on the theory that rights are suspended in a time of war, and the entire Unites States is a battlefield in the War on Terror. This is a very dangerous development indeed. Beware.” Stewart Rhodes, founder and president of Oath Keepers and a Yale Law graduate, described the bill as waging war on the American people. And Rep. Justin Amash commented that the NDAA was “carefully crafted to mislead the public.”
Rhodes also is of the opinion that “no greater threat to our Constitution and our Bill of Rights has ever existed than the current doctrine of “Enemy Combatant Status” which has (been recognized by the Supreme Court in Hamdi v. Rumsfeld and has) essentially been codified in the NDAA. This doctrine is like a toxic, poisonous weed that, if not pulled out by the roots, will grow to choke and kill the tree of liberty. It threatens to wipe out our Bill of Rights and plunge us into a nightmare of military supremacy over civilian power.”
Should the American people wait for Congress to make things right? Should they wait for Congress to remove the offensive language of the NDAA which turns the authority to wage war on terror on American citizens themselves? Congress had the chance when the NDAA of 2012 recently came up for re-authorization. Rather than root out the evil, they voted to renew the bill, including the “indefinite detention US citizens without charge” provision. Can the American people truly expect President Obama to relinquish the power to define and identify “belligerents” as he sees fit and to wage war as he would like? He has already targeted and killed three American citizens, using unmanned drones, on classified information that his “team” collected and only he was authorized to review.
The ACLU has sued the Obama administration under the Freedom of Information Act (FOIA), seeking for force disclosure of the guidelines used by Obama and his officials to select which individuals (both U.S. citizens and foreign nationals) will have their lives ended by the CIA’s drone attacks (“In particular,” the group explains, the FOIA request “seeks to find out when, where and against whom drone strikes can be authorized, and how the United States ensures compliance with international laws relating to extrajudicial killing”). The Obama administration has not only refused to provide any of that information, but worse, the CIA is insisting to federal courts that it cannot even confirm or deny the existence of a drone program at all without seriously damaging national security.
Nullification and Interposition are the answer. What better scenario than the attack on fundamental American liberties by the NDAA to apply what Jefferson and Madison believed to be the “Rightful Remedy” to curb the excesses and abuses of the federal government?
On April 18, the Virginia legislature approved House Bill 1160 (H.B. 1160), commonly referred to as the NDAA Nullification Act. Support was overwhelming. The House vote was 89-7 and the Senate concurred a few hours later, by a vote of 36-1.
The truth is that the bill is not quite a nullification bill. The bill merely announces that the state wants nothing to do with it and will not allow any of its agencies or personnel to assist the federal government in applying and enforcing section 1021 of the National Defense Authorization Act (NDAA), which addresses the targeting and indefinite detention of American citizens.
Simply stated, the bill “Prevents any agency, political subdivision, employee, or member of the military of Virginia from assisting an agency of the armed forces of the United States in the conduct of the investigation, prosecution, or detention of a United States citizen in violation of the United States Constitution, Constitution of Virginia, or any Virginia law or regulation.” A true nullification bill would have prevented any enforcement whatsoever of the provision within the state borders.
The bill was introduced by VA delegate Bob Marshall and he defended the bill strongly on the legislation floor. He spoke to the federal NDAA’s vagueness as well as the attempt by Congress and the President to use military law to detain American citizens as a way to circumvent the Treason Clause. He also emphasized that under our system of dual sovereignty, state legislators have a responsibility to be watchdogs against the federal government. Delegate Barbara Comstock, on the other hand, opposed the bill by stating that state legislators have no business questioning the federal government.
The reason the bill passed was not necessarily because of the noble intentions and affirmative action of the legislators. It was not passed because of an inherent obligation on the part of the state of Virginia to keep the federal government within its bounds. It was the will of the people that triumphed. When the VA Senate originally tried to hold the bill over until next year’s session (effectively killing it), thousands of grassroots activists contacted their Senators to demand that they support it. Another vote was taken quickly and the outcome was quite a different story. It passed 39-1. And so it had to head back to the House for approval, where again, parliamentary tricks and maneuvers were used to try to stall and kill it. But again, the grassroots activists sprang into action. Activists from groups from all across the political spectrum called and emailed their representatives urging to move the bill forward. Finally, it passed.
But there was still one other hurdle. VA Governor Bob McDonnell didn’t want to sign it. He was clearly in a bind. If he vetoed the bill, he would be able to keep in good standing with the “establishment” which supports NDAA detentions, but then he would become hugely unpopular with a huge portion of his state’s population – from all political parties – who wanted the state to take a stand against the indefinite detention of Virginians. On April 18, the deadline he had to either sign or veto the bill, he engaged in some behind-the-scenes negotiation with the sponsors and supporters. He recommended some changes, which were accepted, and the bill was enacted. It will take effect on July 1st.
Delegate Bob Marshall released this statement: “Preserving public safety is the foremost priority of any government. Every day, state and local law enforcement personnel work together and work with the federal government to keep Virginians safe by fighting crime, responding to emergencies, and combating terrorism. The governor believes we must encourage and promote these collaborative efforts while ensuring that core constitutional principles enjoyed by all U.S. citizens are respected. He believes these standards are expected by all Virginians and want to take appropriate steps to reaffirm that position. In the governor’s view, this legislation now accomplishes that goal.”
Virginia, Maine, Utah, and Arizona have passed bills opposing and nullifying the NDAA, and many other states have introduced similar bills. South Carolina will address a resolution just as soon as it goes into session. Many local governments and groups have already passed resolutions. On January 17th, 2012 the County Commissioners of Elk County, Pennsylvania unanimously passed a resolution opposing the NDAA, titled “To Preserve Habeas Corpus And Civil Liberties.” Sheriff Mike McMoran, Comanche County, Kansas, Sheriff Grayson Robinson, Arapahoe County, Colorado, and former Sheriff Richard Mack have signed resolutions opposing the NDAA and ordering no one in their department to cooperate with the enforcement of the NDAA. And most recently, a Pennsylvania constable signed a resolution.
Groups across the political spectrum are supporting the nullification and/or repeal of the NDAA, such as the ACLU, Demand Progress, Downsize DC, Gun Owners of America, Japanese American Citizens League, the Tenth Amendment Center, Oath Keepers, Amnesty International, the Patriot Coalition, PANDA – People Against the National Defense Act, Rhode Island Liberty Coalition, the John Birch Society, Tea Party groups, Reclaim Democracy, Bill of Rights Defense Committee, People’s Campaign for the Constitution, Unitarian Universalist Service Committee, United Church of Christ Justice and Witness Ministries, United Methodist Church General Board of Church and Society, Physicians for Human Rights, Presbyterian Church (USA) Office of Public Witness, Rabbis for Human Rights –North America, and the National Religious Campaign Against Torture. Ron Paul supports nullification as an American, a constitutionalist, and a Congressman, and he supported it publicly as a presidential candidate.
On May 16th, Rep. Justin Amash (R-MI), Rep. Adam Smith (D-WA), Rep. John Garamendi (D-CA), and Rep. Ron Paul (R-TX) held a press conference about the Smith-Amash Amendment to the NDAA, which would repeal the indefinite detention provisions. Unfortunately, that amendment failed in the US House by a vote of 182-236. On the same day as the press conference, US District Judge Katherine Forrest in Manhattan ruled to temporarily block Section 1021 of the NDAA pending the result of the Hedges v. Obama case. This will be a case to watch.
The type of collaboration that took place in Virginia – between conservatives and progressives – is clearly what secured H.B. 1160’s success. This might be the key to defeating the indefinite detention provisions of the NDAA in other states. It is certainly the way to pique the interest of state representatives who otherwise would choose not to take a position.
How Will North Carolina Respond?
My state of North Carolina is now one of about 11 states to address the NDAA. Luckily, it is home to the founder and director of the Patriot Coalition, a devoted organization which serves as a watchdog over the legislation and conduct of the federal government. The Patriot Coalition and Oath Keepers have classified the NDAA as an “Intolerable Act,” referencing the time in our early history when England enacted a series of oppressive legislation on the colonies, denying them their rights as British subjects, and ultimately pushing them towards our independence.
According to the Patriot Coalition and Oath Keepers, the Intolerable Acts embrace two time periods in American history. The first such acts were implemented by the British Parliament and the King of England against the American Colonies just prior to the American Revolution, and were also known as the “Coercive Acts.” The second such period of tyrannical oppression on the God-given Rights of the People began shortly after the attacks of 9/11/2001, and included several Acts of Congress that were signed into law by Presidents G.W. Bush and Barack Obama.
NC Rep. Glen Bradley introduced an anti-NDAA Resolution – H.R. 982 – in the general assembly a few weeks ago. Rep. Bradley is a strict constitutionalist which apparently has made him fairly unpopular with the establishment in Raleigh. The Patriot Coalition, which co-wrote the Resolution with Oath Keepers, along with many concerned citizens, have tried to convince legislators to take the resolution seriously and to push it through the Rules Committee so it can have its day on the legislature floor.
Apparently, there are certain members of the NC Assembly that don’t want to support the resolution simply because they don’t care for Rep. Bradley. What a slap in the face for the people of North Carolina who care about how closely Big Brother is watching over them. The “litmus” test for whether to support legislation should NOT be whether the sponsoring representative wins a personality contest but rather whether the legislation is good for the citizens of North Carolina. H.R. 982 stands up for the Bill of Rights which protects each citizen from a government which may try to take away his rights to life and liberty. Every citizen deserves to be charged with a crime before being detained, have the opportunity to challenge his detention, have his day in court, confront his accuser, and have access to the information and evidence used to bring charges against him.
And so the Patriot Coalition arranged a series of briefings for the benefit of educating the NC legislators and the public on the evils contained in the NDAA. The briefings took place all day on May 30th and again on the afternoon of May 31st.
Mr. Stewart Rhodes, founder and president of Oath Keepers, volunteered his time and drove to North Carolina to offer a presentation to the NC General Assembly to educate them as to our history of applying the laws of war to American citizens, how that relates to the NDAA, and what the implications are in this slippery slope which now has the federal government spying on American citizens and taking away their liberty interests and in Obama’s case, their lives.
Towards the end of his most excellent presentation at the General Assembly on May 31st, Mr. Rhodes offered these words:
“Obama is claiming, like Bush before him, that he has plenary (complete; broad) inherent power to detain American citizens, but even if that is not so, he is claiming, as a fall-back, that Congress authorized that power under the 2001 AUMF. What Congress did with the NDAA of 2012 was to affirm this interpretation. Congress affirmed that the Executive Branch has the right, during wartime, to declare people who fight against the United States ‘enemy combatants’ and thus restrict their access to the court system (ie, suspend their rights under the Bill of Rights). What Congress said with the NDAA is to say that ‘Yes, when we voted to give authorization, we intended to allow for detentions and military trials.’ Pursuant to the laws of war, the president is authorized to use any and all necessary and appropriate force to detain covered persons [see Section 1021(b)(2)] pending the settlement of hostilities and these include: (1) detention until the end of such hostilities; (2) military trials; (3) transfer to any other competent tribunal; and (4) repatriation or transfer to any other country.
The AUMF has been interpreted by two administrations and by the Supreme Court in Hamdi v. Rumsfeld (2004) as applying to the detention of American citizens. ‘Covered persons’ under the bill includes ‘any person.’ It doesn’t say ‘a person other than a US citizen.’ Lawyers use language for a reason.
So where are we now? We are in a direct parallel to the abuses of the Crown and Parliament that were perpetrated on our forefathers. The exact kind of violations of our traditional rights is going on right now by our own government. It doesn’t matter a hill of beans if only one or two Americans are affected or if the NDAA is ultimately used to catch a few terrorists. It’s the principle that we must oppose before our government gets as bad as the English Crown in the years prior to the Revolutionary War. I refuse to wait for a concentration camp full of Americans or a fellow veteran to be targeted and killed by a predator drone.
We are leaving life and death decisions in the hands of one man – the President. It’s not about electing a man who won’t use such powers; it’s about making sure than no president can use those powers. Concentrated power in a president and the power to indefinitely suspend habeas corpus were not part of the constitutional design that our forefathers fought for. That is precisely what they fought against. Even King George never claimed a power that extreme. Our fathers and grandfathers fought in World War II and in the Cold War era to liberate people all over the world from rulers who claim the same power that our current leaders have assumed for themselves. Yet we the people are silent.
One of the charges against King George is that ‘He has placed us outside of his protection and has waged war against us with his actions.’ I believe our current government is going down that same path. They are claiming to have the power to apply the laws of war against us as if we were al Queda or the Taliban. There is no difference between you or a goat herder in Afghanistan, according to Obama (or Bush before him, unfortunately). What can be done to a goat herder in Afghanistan? Well, US military doesn’t have to go to an Afghan judge and get a warrant to arrest him for suspicion of being part of the insurgency. They can just go get him. The US military also doesn’t have to put him on trial and convict him before they shoot him. They can just kill, capture, or try such an Afghani goat herder in a military tribunal somewhere, simply on the suspicion of being part of the insurgency.
And now they claim the same can be done to us.
There is no distinction between the power being claimed by the Obama administration under this law and the power assumed by every dictator throughout the course of world history. Every dictator, whether it was Mussolini or Stalin or Pol Pot or Hitler, or some tin-hat dictator in South America – like Chavez. Every one of them had (or has) the power to just point a finger at someone and say ‘He’s an internal enemy.’ Despots like Stalin, Mussolini, Hitler, or Pol Pot didn’t have to go to a judge for a warrant or provide those they rounded up a jury trial. They just took them out back and shot them.
Stalin used to have show trials. He would torture someone until he confessed to conspiracy over something or another, and if that person were really tough and wouldn’t confess, Stalin would threaten to kill his family. Sometimes, Stalin would bring in family members and force the suspected conspirator to watch them being tortured or killed. This is the power of a dictator. This is not the power of a president under a limited government constitution with a Bill of Rights. This is not the power of a president in this Republic. This is an alien form to our system. This claimed authority to apply the laws of war to us as citizens, as if we were foreign enemies, wipes away our constitutional rights and protections. It destroys our constitutional or federal compact. It is a deal-breaker. It puts us in the same position as our forefathers leading up to the American Revolution.
This legislature has an obligation and a duty to stand up to the actions of the federal government. As James Madison put it in the Virginia Resolutions – the legislature has a duty to interpose itself between the people of that state and an unconstitutional action by the federal government. He wrote that in response to the Alien and Sedition Acts, which were gross violations of the First Amendment. Newspaper editors and publishers were being imprisoned simply for criticizing the actions of the administration. Both Jefferson and Madison understood that such a serious and dangerous usurpation of power and violation of the rights enshrined in the First Amendment by the federal government had to be opposed by the state legislatures.
You should listen to Madison. He’s the Father of our Constitution.
We’re pretty much in the same situation today. The indefinite detention provision of the NDAA as against American citizens is just as serious and dangerous a usurpation of power and as egregious a violation of basic and treasured civil rights. We need to put the proverbial genie back in the bottle because we’re in dangerous territory. Now the Bill of Rights has essentially been reduced to the mere status of a statute rather than supreme law because Congress, enacting a bill such as the NDAA authorizing military force, is seen by the courts as setting aside the Bill of Rights for you and me and our children. Very dangerous territory for sure.
We hope Congress will fix the problem, although it just had the chance to do so with the 2013 NDAA, but they failed us. So we’re going to have to fix it. The States are going to have to fix it. We have to rollback the power of the federal government, and in this case, the power of the Executive. At the very least, we have to put them on notice.
Consider what Montana did in the wake of the Heller decision – the historic 2nd Amendment case. [District of Columbia v. Heller, 2008]. As the Supreme Court was deliberating the case (whether Mr. Heller had an individual right under the 2nd Amendment to own and possess a gun in Washington DC), the Montana state legislature ruled that if the Court did not uphold the 2nd Amendment as an individual right but rather interpret it as a collective right (only applying when individuals are organized in a militia), they would consider it a violation of the compact, or agreement, under which Montana agreed to enter and be part of the Union.
This is not a Right or Left issue. It’s a Bill of Rights issue. It’s an American issue. Hitler held an arbitrary power to detain and execute the German people. I don’t understand why people don’t get that.
We’ve all heard people ask the question: ‘How could people as smart and cultured as the Germans allow someone like Adolf Hitler to come to power and do what he did?’ — Well, now we know. We are watching the same thing happen right here in the United States.”
How many legislators do you think attended this presentation, which took all of about 40 minutes and which was offered conveniently in one of the large, comfortable committee rooms of their office building? Only four legislators attended. There were far more organizations and ordinary citizens who attended. [See reference section for the video of that presentation]
How can citizens expect liberty to last when this is the kind of response we get from that those entrusted with preserving the system provided to us by our Founders. How can citizens help but become apathetic and cynical with respect to government?
As brilliant constitutionalists such as Judge Andrew Napolitano wonder: If we allow the government to target American citizens who might be hostile to the United States (as the NDAA allows), how long do you think it will be before the government uses the same power to go after those who are political opponents? Will we see the day when Americans are entitled to their protections under the Bill of Rights so long as they are citizens “in good standing”? Will the government determine (such as what Homeland Security is currently doing) what it means to be “in good standing”?
North Carolina was the first state to urge the Continental Congress to adopt a formal declaration of independence from England. On May 20, 1775, Mecklenburg County adopted a resolution (the Mecklenburg Resolution) declaring that the British Parliament was an enemy of America and its people and violates the rights of man, and therefore the citizens of that county dissolve the political bands which connect them with the Crown. The Halifax Resolves, which were passed on April 12, 1776 by the Fourth Provincial Congress of North Carolina that met at Halifax County, were the very first instructions by any colony that authorized its delegates to the Continental Congress to vote for independence from Great Britain. 83 members voted unanimously to authorize North Carolina’s delegates to vote for independence. Finally, North Carolina wouldn’t ratify the US Constitution until a Bill of Rights was added; it wouldn’t even consider joining the Union until individual rights were sufficiently protected from the reaches of a federal government. It ratified the Constitution on November 21, 1789 and was the second to last state to do so. Rhode Island was the last state to ratify and only did so by 2 votes.
North Carolina seems to have a legacy to live up to. INDIVIDUAL LIBERTY COMES FIRST !! North Carolinians have always been patriots and not nationalists. We’ve pledged our loyalty to our country (and what it stands for) and not to our government. We’ve been beaten down since the Civil War and coerced by a government determined to weaken the states so that boundaries can become blurred, but my hope is that the spirit of 1775 and 1776 and 1789 isn’t dead.
During the question-and-answer period following Mr. Rhodes’ presentation, a young man in the audience posed the following to Mr. Rhodes: “I’m a father of 4 young children and I’m a member of a Tea Party. I’m fairly vocal in opposing my opinions of what Obama is doing. We all know that Homeland Security has targeted right-leaning groups such as veterans, gun-rights activists, Christian groups, and Tea Party folks as domestic terrorists. We all heard about what happened to that Tea Party guy out in Asheville. How do I know that some night when I’m driving home and a police officer stops me for a ‘traffic violation,’ I won’t be hauled off to some detention center or shipped to Guantanamo Bay, never to see my wife and kids again, and maybe tortured for what I believe?” [I’ve done my best to recall how he posed this question]
Rhodes’ response was quite a shock to me. He said that we couldn’t imagine how many people have asked him the very same thing all over the country when he travels and speaks.
Guess what? The people fear their government. That’s tyranny.
It is said that NC House Majority Leader Paul “Skip” Stam opposes nullification. He sees it as a racist doctrine. And yet he is an attorney. According to Stam’s position, if our current president was Hitler and he just passed a bill suspending the civil rights of all those who did not vote for him and enacted legislation announcing that Jews were no longer citizens and could not own property or own a business, then North Carolinians would be have to help build concentration camps and simply hope that the next election votes him out of office and ushers in a new Congress which would repeal the laws. Yet as we saw under Hitler, so much can happen once civil rights are denied the people.
The success of H.R. 982 will have much to do with Rep. Stam’s character as a public official. Will he honor his oath and defend the Constitution of the United States and the NC constitution as well? Or will he kill a bill simply because he doesn’t like Rep. Bradley. Will he take the notion of dual sovereignty seriously or continue to believe that states have no right to question the authority of the federal government?
Conclusion —
The first duty of a person who has taken an oath to the Constitution is to support and protect the Constitution of the United States – from enemies foreign and domestic. The primarily purpose of the Constitution is to confine and constraint the federal government, define limits of government with respect to individuals, and protect those fundamental rights to Life, Liberty, and Property. It does not give “We the People” our fundamental rights, because our rights, under Natural Law, predate the Constitution and derive from our relationship with the Creator.
Never in the history of the United States have our citizens pledged their allegiance to the federal government. If a public servant determines a law or proposed law to be unconstitutional, he has an affirmative and active duty to enlighten his fellow representatives as well as citizenry. First, he is obligated to not support or enforce such law. Second, he is obligated to sound a public alarm regarding any such legislation or law and to rally public action against it. The duty under the Constitution is to keep the federal government in check. The ultimate goal of Nullification, of course, is to safeguard individual liberty and to preserve our Republic. We don’t ever want to be in the situation of ancient Rome, as depicted in the greatest movie of all time, Gladiator, where the Senate, the voice of the people, was losing significance and the Republic itself was in its last days. Emperor Marcus Aurelius summed up what had become of Rome: “There was once a dream that was Rome. You could only whisper it. Anything more than a whisper and it would vanish… it was so fragile. And I fear that it will not survive the winter.” Our republic is also perilously frail.
The National Defense Authorization Act is a perfect example of when nullification and interposition should be used in current times, or as Thomas Woods’ would say – “to resist federal tyranny in the 21st century.” The post 9/11 government has put this country on a dangerous slippery slope that Germany knows all too well. When Hitler became Chancellor of the Reich on January 30, 1933, a fire broke out “suspiciously” during the night of February 27, which destroyed the Reichstag and set in motion a series of actions which took the civil liberties away from political dissidents, then certain undesirables, and finally the Jews. (The “suspicious” fire was set on Hitler’s own orders, in order to set his agenda in motion).
James Madison spoke before the Virginia Ratifying Convention on June 16, 1788 and warned: “There are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.”
Justice Jackson warned about the responsibility the Supreme Court holds with respect to the protections afforded the Bill of Rights when he wrote his stirring dissent in Korematsu v. United States, the 1944 case which challenged the internment of Japanese citizens during World War II:
“Much is said of the danger to liberty from the Army program for deporting and detaining these citizens of Japanese extraction. But a judicial construction of the due process clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. Even during that period, a succeeding commander may revoke it all. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution, or rather rationalizes the Constitution to show that the Constitution sanctions such an order, the Court for all time has validated the principle of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need. Every repetition imbeds that principle more deeply in our law and thinking and expands it to new purposes. All who observe the work of courts are familiar with what Judge Cardozo described as “the tendency of a principle to expand itself to the limit of its logic.” A military commander may overstep the bounds of constitutionality, and it is an incident. But if we review and approve, that passing incident becomes the doctrine of the Constitution. There it has a generative power of its own, and all that it creates will be in its own image. Nothing better illustrates this danger than does the Court’s opinion in this case.”
We can’t allow the erosion of our most important constitutional protections just so that the government can catch one or two bad guys.
References:
Thomas Woods, Nullification: How to Resist Federal Tyranny in the 21st Century, 2010; Regnery Publishing; pg. 3.
Alexander Hamilton, James Madison, and John Jay, The Federalist Papers (1788; New York: Mentor Books, 1961), No. 45, p. 292-93.
Thomas Jefferson, “Draft Kentucky Resolves of 1798,” The Writings of Thomas Jefferson, (Memorial Edition) Lipscomb and Bergh, editors ME 17:387.
Letter to Major John Cartwright, 5 June 1824; in The Writings of Thomas Jefferson , ed. Albert Ellery Bergh, 20 vols. (Washington: Thomas Jefferson Memorial Association, 1907), 16:47. See also ibid., 15:328; The Federalist Papers, No. 39, p.245.
United States v. Sprague, 282 U.S. 716, 733 (1931).
Marbury v. Madison, 5 U.S. 137 (1803).
Hamdi v. Rumsfeld, 542 U.S. 507 (2004)
Ex parte Milligan, 71 U.S. 2 (1866).
Ex parte Quirin, 317 U.S. 1 (1942).
Korematsu v. United States, 323 U.S. 214 (1944). [Jackson’s dissent at pp. 245-246]
Remarks in the Virginia Ratifying Convention, June 6, 1788. Referenced at: http://www.constitution.org/rc/rat_va_05.htm
Reference: H. D. Hazeltine, M.A., Litt.D., “Magna Carta and the US Constitution,” The Forum. Referenced at: http://oll.libertyfund.org/index.php?option=com_content&task=view&id=604&Itemid=284
Stewart Rhodes, “Understanding Enemy Combatant Status and the Military Commissions Act, Part I. Enemy Combatant Status: No More Pernicious Doctrine, Dirt Rhodes Scholar, October 28, 2006. Referenced at: http://stewart-rhodes.blogspot.com/2006/10/enemy-combatant-status-no-more.html
Stewart Rhodes, “Solving the Puzzle of Enemy Combatant Status,” 2004. Referenced at: http://jpfo.org/pdf/sr-enemy.pdf
Stewart Rhodes, founder and president of Oath Keepers, talks about the danger of applying military law (law of war) to American citizens (May 31, 2012) – http://www.livestream.com/theintolerableacts
Glenn Greenwald, “Obama Takes Bush’s Secrecy Games One Step Further,” Salon, May 26, 2012. Referenced at: http://www.salon.com/2012/03/26/obama_takes_bushs_secrecy_games_one_step_further/
Michael Boldin, “NDAA Nullification Becomes Law in Virginia. Effective July 1st,” The Tenth Amendment Center, April 18, 2012. Referenced at: http://blog.tenthamendmentcenter.com/2012/04/ndaa-nullification-passes-in-virginia-governors-signature-expected-shortly/
“Pennsylvania Constable to Nullify NDAA and Patriot Act,” Before It’s News, May 21, 2012. Referenced at: http://beforeitsnews.com/story/2162/657/Pennsylvania_Constable_to_Nullify_NDAA_and_Patriot_Act.html
H.B. 1160. http://lis.virginia.gov/cgi-bin/legp604.exe?121+sum+HB1160
Text: http://lis.virginia.gov/cgi-bin/legp604.exe?121+ful+HB1160H2+pdf
The Patriot Coalition – http://patriotcoalition.com/
The Intolerable Acts Action Center – http://www.theintolerableacts.org/
The Mecklenburg Declaration of May 20, 1775 – http://www.hartslog.org/declar/1775.htm
NOTES:
1. Judge Spencer Roane would have been appointed Chief Justice of the Supreme Court by Thomas Jefferson had President John Adams not appointed John Marshall in the waning hours of his presidency].
2. Note that in the 1790’s, the Twelfth Amendment had not yet been added to the Constitution and so the candidate who received the greatest number of electoral votes became president and the second highest vote-getter became the vice-president].
3. Unfortunately, the Kentucky Resolutions of 1799, as important a political document as it was, was largely overlooked by the rest of the country because George Washington, the Father of our County, passed away just weeks after they were ratified and his death dominated national news and national publications].
4. Notice how our Founders viewed our new nation, after the ratification of the Constitution – by looking at their writings: (just 2 examples are given below, but there are countless others)
On November 26, 1787, James Wilson gave the following remarks in Pennsylvania’s ratifying convention: “Governments, in general, have been the result of force, of fraud, and accident. After a period of six thousand years has elapsed since the creation, the United States exhibit to the world the first instance, as far as we can learn, of a nation, unattacked by external force, unconvulsed by domestic insurrections, assembling voluntarily, deliberating fully, and deciding calmly concerning that system of government under which they would wish that they and their prosperity should live.”
On July 19, 1791, George Washington wrote these words in a letter to Catherine Macaulay Graham: “The United States enjoy a scene of prosperity and tranquility under the new government that could hardly have been hoped for.”
In both quotes, notice how the verb following “United States” denotes a ‘plural’ subject… that is “united” states. The term “united” describes the status of the states. The verb following “United States” doesn’t end with an “s” and therefore does NOT indicate a singular unit; it does not indicate a singular subject. The term “United States” refers to the status of states and not the name of the country.
5. Read how a Tea Party member in Ashville (NC) had a surprise visit by the Feds and a local police officer because he wrote to get an EPA administrators contact info. The account is unbelievable and appalling. The interrogation of Mr. Keller is beyond anything a reasonable citizen should expect from government. Decent, law-abiding citizens have the fundamental right to “be left alone” by government, as Supreme Court Justice Brandeis once announced.
This concept of the “right to be left alone” dates back to a 1928 Supreme Court wiretapping decision (Olmstead v. United states), in which Justice Brandeis wrote: “The protection guaranteed by the amendments of the Constitution is much broader in scope. The makers of our Constitution understood to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the government the right to be left alone – the most comprehensive of rights and the right most valued by civilized men.”
Please pass on and let everyone know that “Big Brother is Watching.”
“Larry Keller’s visit with Special Agents from the EPA,” Posted May 10, 2012. http://ashevilleteaparty.org/?p=3690
Larry Keller of Buncombe, GOP member and part of the WNC Objectivist group had a horrible encounter with Big Brother feds. Below is the story – “Our Government at Work.” [Western North Carolina Objectivists; objectivism is the philosophy of Ayn Rand -“I swear, by my life and my love of it,that I will never live for the sake of another man, nor ask another man to live for mine.”]
Our Government at Work —
On Wednesday, May 2, 2012 at about 1:45 pm two Special Agents from the EPA and an armed police officer who stood 6’6” tall visited our house in Asheville, NC. Their visit was a total surprise as we had not received any communications requesting an appointment. The agents presented very official looking badges and asked if we could sit and chat awhile. We moved to the back porch and took our seats with the exception of the armed officer who stood by the door to the house the entire time.
Special Agent Michael Woods, who acted as the leader, then asked if I ran a business out of our house and if, what kind of business. What does that have to do with the EPA I thought. I answered yes – I own and run a consulting business focused on data visualization and analysis. After explaining my business to them, he then asked if I had ever sent any emails to anyone in the EPA. I answered no initially and then recalled that I had tried to reach Dr. Al Armendariz, the then EPA Regional Administrator who had made comments about crucifying big oil companies last week. Further, using Google, I had searched for his contact information and landed on his domain which was a subset of Southern Methodist University. There Dr. Armendariz tells visitors to email Dr. David Gray, Director of External Affairs for the EPA. I sent an email to Dr. Gray and stated the following:
“Hello Mr. Gray-Do you have Mr. Armendariz’s contact information so we can say hello?”
At this point Agent Woods reach into a file and from it he pulled out a copy of my email to Dr. Gray. He handed it to me and I asked what was there about the content that justified their driving across the state of NC to visit me with no prior warning. The other agent then stated that my choice of words in the email could be interpreted in many ways. At that point I asked them to be specific as they were wasting my time. I stated that I pay for agents’ salaries and that of the police officer and they have bigger fish to fry. Special Agent Woods then asked if I had ever been arrested – the answer was a swift no. I then asked for a copy of the email they presented and they said that was impossible as the investigation was not yet complete.
At this point I asked for business cards which they said they had when the first entered. Both agents suddenly discovered they were out of business cards. They left via the back staircase and to my shock the agents had parked their car almost blocking my driveway and the police officer parked in my neighbor’s driveway.
Welcome to the new America.
6. The Mecklenburg Declaration of May 20, 1775:
(1). Resolved . . . That whosoever directly or indirectly abets, or in any way, form, or manner countenances the invasion of our rights, as attempted by the Parliament of Great Britain, is an enemy to his country, to America, and the rights of man.
(2). Resolved . . . That we the citizens of Mecklenburg County, do hereby dissolve the political bands which have connected us with the mother country, and absolve ourselves from all allegiance to the British Crown, abjuring all political connection with a nation that has wantonly trampled on our rights and liberties and inhumanly shed innocent blood of Americans in Lexington.
(3). Resolved . . . That we do hereby Declare ourselves free and independent people; that we are, and of a right ought to be, a sovereign and self-governing people under the power of God and the*General Congress; to the maintenance which independence we solemnly pledge to each other our mutual co-operation, our lives, our fortunes and our scared honor. *(Reference here was to the Provincial Congress of North Carolina.)
(4). Resolved . . . That we hereby ordain and adopt as rules of conduct all each of our former laws, and that the crown of Great Britain cannot be considered hereafter as holding any rights, privileges, or immunities among us.
(5). Resolved . . . That all officers, both civil and military, in the country, be entitled to exercise the same powers and authorities as heretofore; that every member of this delegation shall henceforth be civil officer and exercise the powers of a justice of the peace, issue process, hear and determine controversies according to law, preserve peace, union and harmony in the country, and use every exertion to spread the love of liberty and of country until a more general and better organized system of government be established.
(6). Resolved . . . That a copy of these resolutions be transmitted by express to the President of the Continental Congress assembled in Philadelphia to be laid before that body.
7. Model NDAA Nullification Resolution for State and Local Governments:
WHEREAS, the Constitution of the United States is the foundation of our nation’s rights and freedom, and the basis of our representative democracy; AND
WHEREAS, on December 15, 2011, the US Senate passed the conference report to H.R. 1540, the “National Defense Authorization Act for Fiscal Year 2012” (NDAA); and on December 31, 2011, President Barack Obama signed that conference 10 report into law; AND
WHEREAS, Section 1021 of the NDAA authorizes, before a military commission, the military trial of American citizens and lawful residents accused of levying war against the United States or adhering to their enemies, giving them aid and comfort; AND
WHEREAS, Section 1021(c)(1) of the NDAA directly violates the right of the people against unreasonable seizure by allowing them to be snatched up (kidnapped) by the United States military, by the authority of the military alone, and taken to a military detention facility at Guantanamo Bay, Cuba, or to some other location, to be held in “(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force,” or, under Section 1021(c)(4), to be turned over to the custody or control of “any other foreign country, or any other foreign entity”; AND
WHEREAS, under Section 1021(c), the American people can be treated exactly the same as any person captured on a foreign battlefield, such as Iraq or Afghanistan, where anyone who is suspected of being an unlawful belligerent in the war on terrorism, or of aiding belligerents, is simply picked up by the military and taken away to wherever the United States military sees fit, with no involvement by or access to civilian courts; AND
WHEREAS, Section 1021(b)(2) defines a person who can be targeted as “A person who was a part of or substantially supported Al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.” ; AND
WHEREAS, “belligerency” is a term used in international law to indicate the status of two or more entities, generally sovereign states, being engaged in a war, yet the NDAA is purported to address the war on terror, which is a ‘tactic’ and not a sovereign state; AND
WHEREAS, the proper charge for American citizens and lawful residents accused of levying war against the United States or giving aid and/or comfort to the enemy is Treason, as defined in Article III, Section 3, which provides certain evidentiary and procedural protections to said American citizens and residents, including the requirement of presenting two witnesses to the same overt act or a confession in open court, before they can be found guilty by a jury of their peers; AND
WHEREAS, the indefinite military detention of any person without trial violates the 4th, 5th and 6th amendments of the Constitution of the United States, Article III of the Constitution of the United States, and the Posse Comitatus Act; AND
WHEREAS, the NDAA offends the ideals of presumed innocence and right to a fair trial with all its procedural safeguards, including the threshold right of first being charged with a crime before taken into custody, on which our nation was founded, and which generations of activists and military servicemen and women have fought to preserve; AND
WHEREAS, the NDAA’s detention provisions could allow the recurrence of torture in military detention in violation of the 8th Amendment; AND
WHEREAS, the NDAA’s detention provisions could, under Humanitarian Law Project v. Holder (2011) and Hedges v. Obama (2012), allow the targeted detention of activists, journalists and other Americans exercising their First Amendment rights despite the crucial role of Free Speech in preserving liberty; AND
WHEREAS, the language of the aforementioned sections of the NDAA is vague enough to also potentially chill the first amendment right of assembly and the second amendment right to have and bear arms; AND
WHEREAS, the detention provisions could force US military service members to serve as domestic jailers, a role for which they are neither trained nor equipped, nor is ever appropriate; AND
WHEREAS, a government that does what is permitted under Section 1021(c) to its own people is consistent with the behavior of every despotic and totalitarian regime in world history; AND
WHEREAS, the very reason for the Bill of Rights is to prevent arbitrary and capricious conduct by the government against its own citizens; AND
WHEREAS, the very reason for the Article III Treason clause is to provide to those citizens and legal residents who have engaged in war against their country or provided aid and comfort to the enemy certain protections that were absent in such arbitrary, corrupt, and maligned courts as the Star Chamber Courts, which were notorious during the 17th century to prosecute the political enemies of James I and his son Charles I. The judges appointed to the Star Chamber were the King’s own hand-picked men. The courts were known for their abuses, corruption, and misuse of authority because of such concentration power in an autonomous group, not subject to the checks and balances of common law and which held its proceedings in secret; AND
WHEREAS, a government that is permitted to apply law of war provisions to its citizens for being “belligerents” can easily take those powers to target citizens for political opposition; AND
WHEREAS, the State (or City) of _________ re-affirms its allegiance to the US Constitution and Bill of Rights, as intentioned by the States when they ratified them; AND
WHEREAS, the State (or City) of _________ re-affirms its respect and gratitude for our Founding Fathers for their knowledge and command of history and government and for crafting our founding documents so brilliantly and so protective of individual liberty; AND
WHEREAS, the State (or City) of _________ re-affirms its gratitude for the supreme sacrifice of those in the Armed Forces who have died in battle in the name of those same cherished rights and liberties; AND
WHEREAS, state governments and local governments have a right and a duty to its citizens to protect their sovereign and civil rights under the doctrine of federalism from federal legislation and policy that exceeds the power delegated to it under the US Constitution; AND
WHEREAS, the Article VI, clause 2 of the Constitution itself acknowledges that only laws made pursuant to the powers granted in the US Constitution are to be considered the supreme law of the land; all laws and policy enacted in excess or abuse of such powers are void from their inception and have no force of law, thereby need not be enforced; AND
THEREFORE, BE IT RESOLVED that the State (or City Council) of _______________, acting in the spirit of the 1776, pursuant to intentions of the federal compact, and answering the call of history, does hereby declare that the aforementioned sections of the NDAA offend the Bill of Rights and therefore instruct all our public agencies to decline requests by federal agencies acting under detention powers granted by the NDAA that could infringe upon residents’ freedom of speech, religion, assembly, privacy, or rights to counsel.
OPTIONAL (the sections below are optional, but recommended):
BE IT RESOLVED that the State (or City Council) of _______________, does hereby declare that persons holding executive offices in this State, including sheriffs, police, and town clerks, are restrained by the duties and allegiance they owe this State and the People from affording any official conduct, aid, or co-operation in the execution in the aforesaid unconstitutional act, and that no court in this State shall relinquish jurisdiction over any citizen to any federal court.
BE IT RESOLVED, that no agency, political subdivision, employee, or member of the military of ________ (State) will be permitted to assist an agency of the armed forces of the United States in the investigation, prosecution, or detention of a citizen pursuant to the NDAA, in violation of the United States Constitution and the Constitution of ______ (State).
BE IT RESOLVED, that no federal agent shall be permitted to exercise jurisdiction over any citizen in this State pursuant to the NDAA.
The Governor (or Mayor) of ___________________ shall send copies of this resolution to our US Congressman and Senators, the US Senate Committee on the Judiciary, the US Senate Select Committee on Intelligence, the US House of Representatives Committee on the Judiciary, the US House of Representatives Permanent Select Committee on Intelligence, the US Attorney General, and the President of the United States.
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