All Legislative Powers Herein Granted

From The Tenth Amendment Center:

All Legislative Powers Herein Granted




by Walt Garlington



With the executive branch of the federal government making Obamacare headline news once again by issuing regulations regarding end-of-life counseling – while the same law silently threatens ‘to generate over 100,000 pages of enabling regulations’ absent any congressional debate or vote – now would be an excellent time to revisit Article I, Section 1, of the U.S. Constitution.



Art. I, Sec. 1, states simply enough, ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.’



But is the Congress the only institution of the federal government currently exercising those legislative powers? The answer, as illustrated above, is clearly No. The bureaucracy of the executive branch is and has been unconstitutionally exercising the legislative power for decades.

And let there be no mistake: The rules and regulations issued by the executive bureaucracy are laws, though they are not called laws. The legal definition of ‘law’ should suffice to prove this. According to William Blackstone, a law is



“A rule of … conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.”



(See also other legal definitions from this web site.)



Furthermore, law is ‘binding’ on the people of the land and ‘enforced by a controlling authority.’



All of these characteristics of law apply to the rules promulgated by the federal executive.



But there is only one way prescribed in the Constitution for enacting a new law: passage of a proposed bill by both the House and the Senate. The role of the executive branch is secondary; it is Congress alone that is the primary cause in matters of legislation. The President may sign or not sign a bill, in either of which cases it becomes law. He may veto a bill passed by Congress, but his veto may be overridden, in which case the bill still becomes law. (See Article I, Sec. 7.)



Other than signing, not signing, or vetoing proposed laws, the only other function of the federal executive branch with regard to legislation is ‘to take Care that the Laws be faithfully executed’ (Art. II, Sec. 3).



If it be argued that the executive branch needs to have the flexibility to write rules to execute the laws passed by Congress, even this argument has been answered in the text of the Constitution in the famous Necessary and Proper Clause (Art. I, Sec. 8): ‘The Congress shall have Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.’ The legislative branch alone – not the executive branch, or any other ‘Department or Officer’ of the federal government – is granted the power to write rules governing the execution of laws it passes.







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So the Congress is supreme according to our Constitution when it comes to passing new laws.



What does this mean, then? That there is another constitutional basis for declaring many federal regulations decreed by the executive bureaucracy ‘unauthoritative, void, and of no force’, whether regarding health care, the environment, agriculture, etc.



‘Legislative supremacy’ let us call this constitutional principle, and let us define it thusly: Only the U.S. Congress may pass laws, or any rule or regulation having the characteristics of law. Should any other branch, department, or officer of the federal government issue anything purporting to have the force of law, that fraud ought to be ignored and resisted by state and local governments and the citizens themselves in the way deemed most prudent.



If any of the constitutional scholars at the Tenth Amendment Center or elsewhere would like to help clarify and buttress this principle, such aid would be gratefully received.



Finally, I wish to thank the Texas Public Policy Foundation for giving me this idea in the first place via a wise proposal of their own:



‘Our representatives in Congress can have an important role in stopping federal overreach. A simple amendment to the Administrative Procedures Act could establish that the Supremacy Clause of the Constitution (Article VI) shall not apply to regulatory action, and that in cases of conflict between an administrative agency rulemaking and state law, state law prevails.’ (Ted Cruz and Mario Loyola, Reclaiming the Constitution: Towards an Agenda for State Action, P. 16. Available for download as a PDF file here



Walt Garlington is the founder of the Louisiana State Sovereignty Committee.



Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given

Nullification!

From Lew Rockwell.com:

Nullification in 2011!


by Alan Caruba

Warning Signs



Recently by Alan Caruba: Busybodies, Nags and Control Freaks











The great issue of our times is the same great issue of the 1830s. The question is whether Congress can pass legislation or the President issue executive orders that are not authorized by or consistent with the Constitution?



The federal government is a republic composed of separate and sovereign republics.



What recourse do the States have individually and in combination when the central government acts in a fashion that is contrary to the limits and enumerated powers of the Constitution?



The answer, other than an appeal to the courts, is nullification. This term is defined as the assertion that States can and should refuse to enforce unconstitutional federal laws.



This is no trifling matter.



In the past two years since the advent of the Obama administration, the federal government has seized control of one sixth of the nation’s economy, asserting control over the provision of healthcare.



It seized control of General Motors and Chrysler auto manufacturers, arbitrarily casting aside the rightful expectations of their bondholders and other creditors.



It has imposed absurd and invasive demands on air travelers.



It is considering a United Nations treaty that would render the Second Amendment null and void.



It has sued Arizona for enacting an immigration law that mirrors its own.



It is attempting through the FCC to assert control over the Internet.



In the 1860s the issue of state’s rights led to the Civil War.



One hundred and fifty years ago, on December 22, 1860, the State of South Carolina declared its independence and seceded from the Union. It did not arrive at this decision overnight. In fact, on December 10, 1832, President Andrew Jackson issued a proclamation to South Carolina disputing its right to nullify a federal law.



A South Carolina convention had declared that the tariff acts of 1828 and 1832 "are unauthorized by the Constitution of the United States and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State."



Subsequent to Jackson’s proclamation, Congress passed the Force Act that authorized the use of military force against any State that resisted the tariff acts. A compromise engineered by Henry Clay resulted in the tariff of 1833, designed to reduce southern objections. South Carolina ended its nullification effort, but by 1861 it would no longer bend to the mandates of the federal government.



Contrary to some historical reinterpretation, the Civil War was all about State’s rights. Though President Lincoln opposed slavery, he did not introduce the issue into the conflict until after the awful slaughter on the battlefields that led to the Emancipation Proclamation. It came three years after the war had begun and was intended to introduce a moral dimension to the conflict. Slaves, however, were only freed in the Confederate southern States.



There are many issues worthy of nullification these days.



At the top of the current list is Obamacare and the fact that some twenty States have filed suit against its enforcement clearly demonstrates (1) an intense rejection of it and (2) the willingness of States to use the judicial system to seek relief.





Beyond that, we have entire federal agencies that have no legitimate basis in the Constitution.



The Department of Education should be abolished. The Constitution makes no mention of education as a federal concern. It was and should be up to the States and local communities to oversee general education. Part of the controversy raging these days concerns teacher’s union contracts that are contributing to the bankruptcy of many States.



The Department of Energy, created by executive order, should be abolished. States should have the right to determine how their natural resources should be either protected or utilized. Requiring states to use so-called alternative (wind and solar) energy is seriously wrong.



Likewise, the Environmental Protection Agency, also created by executive order, has so exceeded its original mandate that it has become a lethal threat to the economy and the welfare of all Americans.



Nullification should be utilized to rid us of these and other federal entities that overstep their mission, threatening the Bill of Rights and other constitutional limitations and freedoms.



To learn more about the nullification movement, visit the Nullify Now website and the website of the Tenth Amendment Foundation.



This nation has been heading toward nullification since the 1930s when many of the Constitution’s restrictions of federal power were cast aside. This has brought the nation to the brink of financial collapse. To save it, nullification may be required.



Editor’s note: To learn more about this topic, Tom Woods has written Nullification: How to Resist Federal Tyranny in the 21st Century.



Reprinted with permission from Warning Signs.



December 31, 2010



Alan Caruba founded The National Anxiety Center in 1990 where this series is posted. An author, business and science writer, he blogs daily at http://factsnotfantasy.blogspot.com.



Copyright © 2010 Alan Caruba

Constitutional Know-Nothings

From The Heritage Foundation and The Patriot Update:

Constitutional Know-Nothings


Posted December 30th, 2010 at 5:05pm in First Principles with 17 comments Print This Post

http://www.eyeblast.tv/public/checker.aspx?v=hd6UkU6UaG

The 112th Congress has an unprecedented plan. They are going to read the Constitution-the document that each member will swear to uphold-aloud on their first day. When asked on MSNBC to comment, Washington Post writer Ezra Klein replied “It’s a gimmick. I mean, you can say two things about it. One, is that it has no binding power on anything. And two, the issue of the Constitution is not that people don’t read the text and think they’re following. The issue of the Constitution is that the text is confusing because it was written more than 100 years ago and what people believe it says differs from person to person and differs depending on what they want to get done.”



Take that, foolish members of Congress! According to Klein, the Constitution is unknowable, and is only a tool for people to push through idiosyncratic policy proposals. So much for that oath.



But our Constitution’s history and origin is known. In his famous speech to the Federalist Society Annual Lawyers Convention in 1985, Former Attorney General Edwin Meese reminds us that the Constitution is not “buried in the midst of time.” It was not haphazardly written. The Constitution is a carefully drafted document: the Founders “proposed, they substituted, they edited, and they carefully revised.” The Constitutional Conventions’ discussions, disputes, and compromises carefully recorded. The Father of the Constitution, James Madison, wrote comprehensive accounts of the convention. “Others, Federalists and Anti-Federalists alike, committed their arguments for and against ratification, as well as their understandings of the constitution, to paper, so that their ideas and conclusions could be widely circulated, read, and understood.” Thus, thanks to the pamphlets, letters, and well-documented debates and drafting records from the founding, the meaning of the Constitution is, in fact, knowable.

The Heritage Guide to the Constitution (published in 2005, recent enough that Klein may be able to understand it) offers a clause-by-clause explanation and analysis of the Constitution. In his opening essay, David Forte argues that “Written constitutionalism implies that those who make, interpret, and enforce the law ought to be guided by the meaning of the United States Constitution–the supreme law of the land–as it was originally written.” An originalist approach to the Constitution is not for the intellectually lethargic. The Constitution is a well-crafted document meriting a particular interpretive approach: “where the language of the Constitution is specific, it must be obeyed. Where there is demonstrable consensus among the Founders and ratifiers as to a principle stated or implied in the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself.” The most interesting debates then, focus on the application of constitutional principles-not on whether these principles exist. This approach does not “remove controversy, or disagreement, but it does cabin it within a principled constitutional tradition that makes real the Rule of Law.”



Contrary to Klein’s suggestion, when the members of 112th Congress swear to uphold the Constitution, they are taking on a great and noble task. Those who seek to use the Constitution to supply definitive policy proposals will search the text in vain. The Constitution does not purport to answer every policy question, but answers the question about how problems should be approached and solved in a democratic republic.



Members of Congress must deliberate on tough issues and are obliged to consider how proposals before them accord with the Constitution. That document is not a legislative code inextricably bound to the eighteenth century, nor is it a mirror simply reflecting the thoughts and ideas of those who stand before it. It is “the supreme Law of the Land” which they are bound by oath to support and defend.

Obama's Bulls-Eye On U.S. Citizens

From The CATO Institute:

Obama's Bull's-eye on U.S. Citizens


by Nat Hentoff





Nat Hentoff is a member of the Reporters Committee for Freedom of the Press,and a senior fellow with the Cato Institute, a libertarian think tank.

Added to cato.org on December 22, 2010



This article appeared on Cato.org on December 22, 2010.



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ShareThisOn its way to the Supreme Court is the first-ever ruling on whether a president — without ever going to a judge — can order the assassination of an American for terrorism. Bringing this fateful lawsuit — Aulaqi vs. Obama, (Defense Secretary) Robert Gates and (CIA Director) Leon Panetta — are the American Civil Liberties Union and the Center for Constitutional Rights.



The ACLU recognized that under "The Constitution and international law ... intentionally killing is ... prohibited without judicial due process — charge, trial and conviction — physical harm, and lethal force is a last resort."



Along with the ACLU, the Center for Constitutional Rights will present the Supreme Court with the factual lawlessness of the Obama administration's lethal hunt for Anwar al-Aulaqi:



An extrajudicial killing policy under which individuals are added to 'kill lists' after secret bureaucratic processes and remain on the lists (for months at a time) even in the absence of any reason to believe that they pose a threat of imminent harm goes far beyond what the Constitution and international law permit."

Very far beyond. Also, this secret assassination pursuit "violates the Constitution: U.S. citizens have a right to know what conduct may subject them to execution at the hands of their own government." Not knowing, they are utterly defenseless.



Nat Hentoff is a member of the Reporters Committee for Freedom of the Press,and a senior fellow with the Cato Institute, a libertarian think tank.



More by Nat HentoffThis American target was placed on the kill list in early 2010. The Center for Constitutional Rights continues: "Anwar Al-Aulaqi has not been charged with any crime, but reportedly has been the target of as many as a dozen missile strikes in Yemen already."



And dig this: "The United States is not engaged in war within or against Yemen, and its actions against Al-Aulaqi must be constrained by the Constitution and international law, as with any U.S. citizen."



This is not a battlefield.



As others and I have reported, he is a jihadist by his own incendiary statements, but he is still an American citizen. Not even Obama, Gates and Panetta can strip an American citizen of his or her most fundamental constitutional rights in order to obliterate that person.



And in all the reporting and debates I've seen on this official murder, there has been little attention to a letter written directly to President Barack Obama at the White House by Anthony Romero, executive director, American Civil Liberties Union, on April 28, 2010.



"The program you have reportedly endorsed is not simply illegal but also unwise, because how our country responds to the threat of terrorism will, in large part ... govern every nation's conduct in similar contexts. If the United States claims the authority to use lethal force against suspected enemies of the U.S. anywhere in the world — using unmanned drones or other means — then other countries will regard that conduct as justified.



"The prospect of foreign governments hunting and killing their enemies within our borders or those of our allies is abhorrent." President Obama has yet to answer Romero.



There is historical background for this concern raised by Romero. In my 2003 book, "The War on the Bill of Rights and the Gathering Resistance" (Seven Stories Press), I cited a report by Human Rights First, "End Secret Detentions," which demonstrated that:



"U.S. policies that promote secrecy and lack of accountability have encouraged authoritarian regimes around the globe to commit abuses in the name of counterterrorism."



Among the examples:



• In Zimbabwe — where President Robert Mugabe, while voicing agreement with the Bush administration's policies in the war on terrorism, "declared foreign journalists and other critics of his regime 'terrorists' and suppressed their work." His version of our "enemy combatants."



• And in Eritrea — where the governing party arrested 11 political opponents, has held them incommunicado and without charge, and defended its actions as being consistent with United States actions after September 11).



The targeted killing of Anwar al-Aulaqi — and any other U.S. citizen eventually added to the U.S. secret murder list, or who may be already there for all we know — could lead dictators to cite their own already active target-kill lists as also being justified by the United States. They could do it with private smirks, not having anything but loathing for this country.



In the November 1 National Review, a lively conservative journal, Kevin D. Williamson energized this debate in: "Assassin-in-Chief: The War on Terror has blinded the Right to a disturbing expansion of executive (U.S.) power." About al-Aulaqi, he writes:



His crimes are real, and there is precedent for punishing them — we hanged Der Sturmer editor Julius Streicher at Nuremberg, but felt the need to conduct a trial first: Even a Nazi got more due process than we today are willing to extend to U.S. citizens. Aulaqi is a traitor, to be sure, but hanging American traitors is a job for the American federal courts, not for assassins.

Williamson concludes, "Decent governments do not assassinate their own citizens." And how do we decent citizens react?



Margaret Fuller, an associate of Ralph Waldo Emerson and editor of the Transcendentalist magazine The Dial, said in the 19th century: "This country needs to be born again." As a libertarian, in my own imperfect way, I see some signs of that urge for rebirth here now. We may see more in 2012, especially if Barack Obama feels entitled to a second term.



If he does and fails, much depends, of course, on who succeeds him and the future composition of Congress. Most important will be who we are becoming as Americans under a government that assassinates its citizens.

ObamaCare And The General Welfare Clause

From The Wall Street Journal and The CATO Institute:

ObamaCare and the General Welfare Clause


by Randy Barnett and David G. Oedel





Randy E. Barnett, a senior fellow at the Cato Institute, is a professor of constitutional law at the Georgetown University Law Center. David G. Oedel is a professor of constitutional law at Mercer University Law School and deputy special attorney general for the state of Georgia in the 20-state health-care litigation.

Added to cato.org on December 29, 2010



This article appeared in The Wall Street Journal on December 27, 2010.



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ShareThisRemember the Cornhusker Kickback? In a frantic effort to move ObamaCare through the Senate last December, the following provision was added to the bill: Nebraska was given a $100 million exemption to cover the costs of the bill's dramatic expansion of Medicaid. The special exemption was ultimately dropped during reconciliation, but not only because of the public outrage it generated. Many realized it was unconstitutional for a reason that now applies equally to the health-reform law: Both violate the general-welfare clause.



While Congress has no constitutional authority to directly commandeer state legislatures into doing its bidding, it can place conditions on the money it offers them. So in the 1980s, for example, states had to raise their drinking age to 21 or the federal government would hold back 5% of a particular state's highway funds. But Congress's authority to impose conditions is not limitless.



Article I, Section 8 of the Constitution gives Congress the power "to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States." The problem with the Cornhusker Kickback was that the citizens of 49 states would have had to pay for Nebraska's Medicaid exemption — without getting anything in return. The special exemption exceeded Congress's constitutional authority because it did not serve the "general welfare" — meaning, the welfare of the people of each and every state.



Randy E. Barnett, a senior fellow at the Cato Institute, is a professor of constitutional law at the Georgetown University Law Center. David G. Oedel is a professor of constitutional law at Mercer University Law School and deputy special attorney general for the state of Georgia in the 20-state health-care litigation.



More by Randy E. BarnettThis defect is true of the new health law, the Patient Protection and Affordable Care Act. Although the constitutional objections to its individual insurance mandate — the requirement that any person who isn't provided insurance by his employer buy it on his own — have gotten all the public attention, the law also has a "general welfare" problem. It will pile unspecified new costs on states by requiring them to extend their Medicaid coverage to more people. In Florida, 20 states have challenged these state mandates as exceeding Congress's spending power. Their challenge is based on South Dakota v. Dole (1987).



In Dole, the Supreme Court upheld the congressional mandate that every state raise its drinking age to 21, or lose 5% of its highway funding. But the Court also acknowledged that "in some circumstances, the financial inducement offered by Congress might be so coercive as to pass the point at which 'pressure turns into compulsion'" (quoting a 1937 opinion by Justice Benjamin Cardozo). The Court upheld the drinking age mandate because a state would only "lose a relatively small percentage of certain federal highway funds."



ObamaCare won't alter Medicaid in a relatively small way. It's an "all in or all out" proposition — not a threat of losing just 5% of some transportation funds, but a threat of losing 100% of the single largest federal outlay to the states.



The annual federal spending on Medicaid is now over $250 billion, more than all federal spending on transportation and education combined, and it is climbing quickly. States on average devote about 18% of their tax revenues to Medicaid, typically funding between 40% and 50% of their state's total Medicaid costs. The health law's changes to Medicaid will force them to pay even more of their own funds.



The 20-state challenge to the new law was heard in federal district court in Pensacola, Fla., on Dec. 16. Much of the argument concerned whether the threatened loss of Medicaid funding passes the threshold laid out in Dole, where persuasion becomes compulsion. We think the case also presents a serious "general welfare" problem.



Normal federal spending occurs irregularly throughout the U.S. If Nebraska gets a military base, for example, making the case that it serves the "common defense and general welfare of the United States" is easy, since citizens of other states benefit from the base. The same general-welfare story can be told about virtually all federal spending programs, which is why Chief Justice William Rehnquist said in Dole, "[i]n considering whether a particular expenditure is intended to serve general public purposes, courts should defer substantially to the judgment of Congress."



ObamaCare is different. Texas might be allowed to withdraw from Medicaid, but Congress will simply send the Medicaid portion of its citizens' federal tax payments to the 49 other states. Texas citizens would receive nothing in return.



Given the enormous sums involved, sending their tax payments to other states would make it nearly impossible for Texans to fund their own system of medical assistance to the poor: Texas's poor citizens would suffer while the state's tax payments would go to support the poor in other states. Taking from one state to benefit 49 others is as much a violation of the general-welfare clause as the Cornhusker Kickback, which proposed taking from 49 states to benefit one.



In short, the real key to the Medicaid challenge by the 20 states is not simply that withholding Medicaid funding is coercive. It is that the taxes paid by citizens of a state that opts out of Medicaid would no longer be spent in support of the general welfare of each and every one of the states — including itself.



The problem is not insurmountable: Congress could simply provide any state that chooses to withdraw from Medicaid a federal block grant equal to the amount that state's taxpayers would otherwise receive for Medicaid. That would make its choice to remain in or opt out of Medicaid truly voluntary and ensure that the Medicaid program serves the general welfare.



A cynic might respond, Congress would never offer such a block grant because then lots of states might withdraw. Exactly right. And this shows how the "coercion" principle of Dole is linked to the general-welfare clause. If the only way to withdraw from Medicaid is for a state to deprive its citizens of the benefit of their tax payments, they are in this sense unconstitutionally coerced into remaining.



The conclusion is clear. So long as Congress insists on threatening the taxpayers of any state that withdraws from Medicaid by sending their tax money to the other states — and, in the process, depriving them of the funds needed to assist their poorest citizens — federal courts should follow Dole and rule that the new Medicaid requirements are unconstitutional.

The Constitution And The 112th Congress

From The American Thinker:

December 27, 2010


The Constitution and the 112th Congress

Jeannie DeAngelis

The Republicans are up to no good. The 112th Congress is coming to Washington DC with the Republicans in the majority, and the Right plans to stir things up. In fact, Republicans are arming for war with the ultimate ammunition, the US Constitution!



That's right - the Radical Republicans plan to open Congress by reading the Constitution on the floor of the House. Newly elected legislators are planning to drag out the source document to remind Congress what guidelines should be adhered to when imposing legislation on the American people.



Democrats, who have an affinity for passing bills without reading them, may very well run toward the escape exits when the reading commences. What could be worse than having a standard held up that proves nothing you've done for years even comes close to resembling the type of governance laid down in America's founding document.



Those backing the plan said the goal is to "underscore the limited-government rules the Founders imposed on Congress - and to try to bring some of those principles back into everyday legislating." Does that mean revisionist Democrats are going to have to actually listen, or will the Republicans allow conscientious objection?



The rabble rouser extremist who came up with the idea, Robert W. Goodlatte (R-Va), said the proposal "stems from the debate that we've had for the last two years about things like the exercise of authority in a whole host of different areas" from the EPA to health care to cap and trade.



Godlatte said: "This Congress has been very aggressive in expanding the power of the federal government, and there's been a big backlash to that."



No offense to Congressman Goodlatte, but adherence to the letter of the law isn't exactly the Left's strong suit. Even if Democrats know what the Constitution says, the copy they prefer is the "not deeply flawed" edition. Liberals cling to a newfangled "living-breathing" Constitution, marked up and made up as they go along. How else could the Left justify bad law like Roe v. Wade? Liberals contend that the guidelines set forth by a group of angry-white-male slave owners need revision, not revisitation.



In fact, the Constitution is why Obama is on the "defensive over the new health care law." Democrats were so busy drafting the health care bill they had no time to heed bothersome clauses, especially those that would prevent the Left from transforming the nation into a centralized system that rejects the basic tenets laid down in what they consider an antiquated document.



In Obama's revisionist world, "sharing the wealth" takes precedence over the Constitution. So when an unsubmissive "federal district judge in Virginia ruled ... that the general welfare and commerce clauses do not give the federal government the authority to require individuals to purchase health coverage, under pain of a financial penalty," the Left, true to form, immediately attempted to discredit the judge.



Thus, Liberal reaction could be extreme. Let's face it - reciting the US Constitution to Democrats would be like forcing Madalyn Murray O'Hair to participate in a prayer meeting.



Establishing the 112th Congress upon a Constitutional foundation could incite a reaction in Democrats similar to Regan in the Exorcist being splashed with holy water.



However, there is an upside. One or two lines into the recitation and the minority party will probably run from the House floor and crash through the double doors, holding their ears, screaming and begging for mercy, which will make getting the nation back to founding principles a whole lot easier for Republicans.







Author's content: www.jeannie-ology.com





Posted at 07:46 AM

Today In History: Congress Recognizes The Pledge Of Allegiance

From Big Government:

Dec 28, 2010 (2 days ago)Tuesday Open Thread: Pledge Editionfrom Big Government by PubliusToday, in 1945, the U.S. Congress officially recognized the Pledge of Allegiance

A Reminder to President Obama And Other Liberals

From The Ohio Republic:

Tuesday, December 28, 2010Reminder to President Obama and other liberals


"[F]ormal equality before the law is in conflict, and in fact, incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law. To produce the same result for different people, it is necessary to treat them differently...



"[F]or the Rule of Law to be effective it is more important that there should be a rule applied always without exceptions than what this rule is."



-- Friedrich A. von Hayek, The Road to Serfdom, Bruce Caldwell, ed. (1944; Chicago: University of Chicago Press, 2007), 117.

Posted by Harold Thomas

Regarding Nullification, Inter-Position And Secession

From Liberty Defense League:

A Response to Bob Brown Regarding Nullification, Interposition and Secession


Tue, Dec 28, 2010

Secession, State Sovereignty, Timothy Baldwin

by Attorney Timothy Baldwin

(appx. 4,700 words)



For me, it is always disheartening to see men and women who have held, who hold or who wish to hold American political office possess political ideas dangerous to the fundamental liberties which America’s Declaration of Independence holds are inalienable. Yet, while disheartening as it is, it is also common. So, it is perhaps no surprise that Bob Brown, former Montana secretary of state and state Senate president, authored a recent article attacking the States’ political powers of nullification, interposition and secession. Unfortunately, it has largely been the opinion held by Brown that has enabled the ever-growing, tyrannical federal government to usurp the authority of the States and liberties of the people. Coming from people in such positions of political position and influence in such a great State as Montana, it is thus incumbent upon those of differing minds to express their dissidence, though admittedly it is impossible to engage every point in this forum.









This subject has been discussed for over two centuries in the United States in much more eloquent and detail terms than short articles can divulge. But as discussions go, theories do not put on flesh until circumstances require the people to begin using the theory to their advantage. Brown’s position is nothing new and offers no political truths on the subject. What’s more, he offers no support from the historical and political context of 1787 to enlighten the mind. At most, Brown attempts to use emotional tactics and a war, commonly known as the Civil War, to denigrate a political position that can only be answered by the foundational concepts and documents which formed the political association of the States from 1776 to 1789, and in more reality, by the people holding the political power themselves. Unfortunately, putting out such little-researched disinformation on such a serious topic of freedom only further enslaves the minds of what are supposed to be free people who should erudite for themselves.



This must be admitted if what Brown asserts is true concerning a “settling of the issue” by virtue of the federal government’s attacking through war the newly-formed political association, The Confederate States of America: the United States Constitution is not the supreme law of the land at all, but rather, conquest and sheer force are the supreme law of the land. Given Brown’s logic, so long as the federal government can force a state on an issue, the “issue is solved”. If this is so, then the consent of the governed does not exist in the States and neither does freedom. It is very disturbing to think that men and women holding top political offices in both the State and federal level actually hold freedom’s antithetical position.



Still, Brown’s explanation and support of his position offers absolutely no guidance for the true student of American political truth and makes incorrect blanket statements which prove the shallowness of his persuasion and only lead those who are unwilling to study the matter more seriously into false conclusions and ultimately enslaving political principles, thus translating into voting for people who hold these detrimental political beliefs—that is, assuming one believes in a federal form of government composed of sovereign states as America’s founders largely did.



I have written extensively on this subject before, (as have many others more articulate than myself), so one may read much of what I (and others) have already exposed regarding the true meaning, nature and character of the union of the sovereign states, known as the United States of America as formed from 1787 to 1789. Indeed, it is our duty as citizens of Montana (and other States) to do so. Consider this: it has been said before by historians that the United States is one of the only political institutions in history not to know what kind of political union it has (had). It is no wonder why there is so much conflict and confusion on the subject. But is this division and ignorance caused by willfulness, negligence or subterfuge? If we base our conclusions on articles such as the one Brown released, the answer could be any or all of the above.



The answer of what we are (to be) is not so far away, however. Even the Federalist Paper authors (advocates for the ratification of the United States Constitution) admitted the power, right and duty of the State governments to actively interpose and nullify unconstitutional federal actions. Yet, their positions are completely ignored as support for what union the U.S. Constitution created, which union was in fact of the same character and nature as the 1781 Articles of Confederation, as recognized by the Federalist authors themselves—it was not some wholly new form of constitutional government/union (as Brown states). Hamilton and Madison admitted,



“[T]he confederacy [under the United States Constitution] may be dissolved, and the confederates [i.e. the states] preserve their sovereignty…[The proposed Constitution] would still be an association of states, or a confederacy…[with the states possessing] certain exclusive and very important portions of sovereign power.” Alexander Hamilton, FP 9 (emphasis added).



“The truth is, that the great principles of the Constitution proposed by the convention may be considered less as absolutely new, than as the expansion of principles which are found in the articles of Confederation.” James Madison, FP 40 (emphasis added).

So, if the Federalist writers describe the United States Constitution as a confederacy form of government (i.e. federal system of government), how can the nature of the union be morphed into a national form of government by virtue of the federal government “enforcing” the terms of that same constitution by a Civil War? It is a political impossibility and is absurd, and to suggest otherwise to Montana citizens deceives them into what has become a system of government contrary to the system our founders drafted and States ratified.



Let us consider some of the federal political axioms that Alexander Hamilton and James Madison prescribed in the Federalist Papers, which were used to convince the States to ratify the U.S. Constitution. These are the ideas which provided the offer, if you will, for acceptance to the States. The following were purported to be true under the terms of the U.S. Constitution of 1787.



1. U.S. Constitution Alone Not Adequate To Limit Federal Government



a) “[P]ower is of an encroaching nature…[I]t ought to be effectually restrained from passing the limits assigned to it…What this security ought to be, is the great problem to be solved. Will it be sufficient to mark, with precision, the boundaries of these departments, in the constitution of the government, and to trust to these parchment [paper] barriers against the encroaching spirit of power?” James Madison, Federalist Paper (FP) 48 (emphasis added).



2. Security of Freedom Found in Structural Composition of the Constitution, Not On Basis of Limited Federal Powers



a) “TO WHAT expedient…shall we finally resort, for maintaining in practice the necessary partition of power among the several departments, as laid down in the Constitution? The only answer that can be…the interior structure of the government as that its several constituent parts may, by their mutual relations, be the means of keeping each other in their proper places.” Hamilton, FP 51 (emphasis added).



b) “[A]ll observations founded upon the danger of usurpation ought to be referred to the composition and structure of the government, NOT to the nature or extent of its powers.” Alexander Hamilton, FP 31 (emphasis added).



3. States Possess Sovereign Power as Sovereign, Independent Nations



a) “To argue upon abstract principles, that the co-ordinate authority cannot exist, would be to set up theory and supposition against fact and reality.” Alexander Hamilton, FP 34.



b) “[P]owers of the general government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence.” James Madison, FP 40.



c) “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” James Madison, FP 45.



4. The Union Under the United States Constitution is a Federal Form, Not National



a) “T]he Constitution is to be founded on the assent and ratification of the people of America…[T]his assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people themselves. The act, therefore, establishing the Constitution, will not be a NATIONAL, but a FEDERAL act.” James Madison, FP 39 (emphasis added).



5. Sovereignty and Authority of States Reaches All Matters Not Delegated to Federal Government



a) “State governments, by their original constitutions, are invested with complete sovereignty.” Alexander Hamilton, FP 31 (emphasis added).



b) “[T]he States will retain, under the proposed Constitution, a very extensive portion of active sovereignty.” James Madison, FP 45 (emphasis added).



6. Each Sovereign Has the Inherent Power to Execute and Defend Its Obligations and Rights



a) “[The States] must possess all the authorities which are connected with this object [of administration of justice], and with every other that may be allotted to their particular cognizance and direction.” Alexander Hamilton, FP 23 (emphasis added).



b) “Independent of parties in the national legislature itself…the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.” Alexander Hamilton, FP 26 (emphasis added).



c) “If the [federal] representatives of the people betray their constituents, there is then no resource left but in the exertion of that original right of self-defense which is paramount to all positive forms of government, and which against the usurpations of the national rulers, may be exerted with infinitely better prospect of success than against those of the rulers of an individual state.” Alexander Hamilton, FP 28 (emphasis added).



7. Sovereign Powers Are Uncontrollable by Other Sovereign Powers



a) “[I]ndividual States should possess an independent and uncontrollable authority to raise their own revenues…[T]hey would…retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution***These [federal laws or actions] will be merely acts of usurpation, and will deserve to be treated as such.” Alexander Hamilton, FP 32, 33 (emphasis added).



8. States Cannot Rely on Federal Process To Adequately Limit Federal Government



a) “Either the mode in which the federal government is to be constructed will render it sufficiently dependent on the people, or it will not. On the first supposition, it will be restrained by that dependence from forming schemes obnoxious to their constituents. On the other supposition, it will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people.” James Madison, FP 46 (emphasis added).



9. States Must Actively Watch For Federal Usurpations



a) “[I]t has…been shown that the federal legislature will not only be restrained by its dependence on its people…but that it will be, moreover, watched and controlled by the several collateral [state] legislatures. Alexander Hamilton, FP 52 (emphasis added).



b) “[I]n a confederacy the people [referring to the United States Constitution], without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these [state governments] will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.” Alexander Hamilton, FP 28 (emphasis added).



10. State Sovereignty Requires that States Be Equipped and Capable of Resisting Federal Usurpation



a) “When will the time arrive that the federal government can raise and maintain an army capable of erecting a despotism over the great body of the people of an immense empire, who are in a situation, through the medium of their State governments, to take measures for their own defense, with all the celerity, regularity, and system of independent nations?” *** It may safely be received as an axiom in our political system, that the State governments will…afford complete security against invasions of the public liberty by the national authority.” Alexander Hamilton, FP 28 (emphasis added).



11. States Must Interpose and Nullify Federal Usurpation



a) “The plausibility of this objection [concerning the Articles of Confederation which allowed passive nullification] will vanish the moment we advert to the essential difference between a mere NON-COMPLIANCE [under the Articles of Confederation] and a DIRECT and ACTIVE RESISTANCE [under the US Constitution]. If the interposition of the State legislatures be necessary to give effect to a measure of the Union [under the Articles of Confederation], they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.



“[But under the U.S. Constitution, the State legislatures] would be obliged to act, and in such a manner as would leave no doubt that they had encroached on the national rights…Attempts of this kind would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY.” Alexander Hamilton, FP 16 (emphasis added).



b) “Were it admitted, however, that the Federal government may feel an equal disposition with the State governments to extend its power beyond the due limits, the latter [States] would still have the advantage in the means of defeating such encroachments…The opposition of the federal government, or the interposition of federal officers, would but inflame the zeal of all parties on the side of the State, and the evil could not be prevented or repaired, if at all, without the employment of means which must always be resorted to with reluctance and difficulty. On the other hand, should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.



“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity.” James Madison, FP 46 (emphasis added).



The axioms referenced above alone prove that the States reserved to themselves not only authority and sovereignty to govern their citizens pursuant to their own State constitutions but also the means and methods to desist and resist the federal government from enforcing unconstitutional laws pursuant to the U.S. Constitution. That is, only federal laws passed in pursuance to the United States Constitution are valid. All others are null and void. Thus, state laws passed pursuant to the United States Constitution are as valid as any federal law (and thus, supreme); and as taking an oath to uphold the constitution (not unconstitutional federal laws), State government must resist in compliance with their duty to protect their own sovereignty and citizens.



Admittedly, America’s history possesses political statesmen who did not concede the right of the States to nullify unconstitutional laws, to interpose federal usurpations or to secede from the union—despite all of the evidence to the contrary just cited. These positions’ most astute of all advocates was Daniel Webster, as Brown said in his article. But perhaps Brown did not go far enough, however, in the story of Webster—especially knowing the significance Webster played in this political question.



Webster was considered America’s more knowledgeable statesmen on the anti-nullification/interposition/secession position. Most students of American history are familiar with the Webster-and-John Calhoun’s debates, which were premiere in the minds of politically-concerned Americans (and should be read by every American). However, not without extraordinary significance, Webster changed his original position and eventually saw the error of his ways, this after being known as the go-to guy for the anti-nullification/interposition/secession position. His recanted statement declared that States do in fact hold the kind of sovereignty that only independent nations possess—not as mere counties to the federal government in a consolidated form, but as free and independent as the Declaration of Independence and Treaty of Paris of 1783 declare in a federal form. Webster recants saying,



“It is argued, that though this law of comity exists as between Nations, it does not exist between the States of this Union…In respect to this law of comity, it is said, States are not Nations; they have National Sovereignty; a sort of residuum of Sovereignty is all that remains to them. The National Sovereignty, it is said, is conferred upon this [Federal] Government, and part of the municipal Sovereignty. The rest of the municipal Sovereignty belongs to the States…



“I cannot follow in this train of his argument. I can make no diagram, such as this, of the partition of National character between the State and General Governments. I cannot map it out, and say, so far is National, and so far is municipal; and here is the exact line where the one begins and the other ends…



“There is no such thing as arranging these Governments of course by the laws of gravitation, so that they will be sure to go on forever without impinging…I am not prepared to say that the States have no National Sovereignty.



“The term ‘Sovereignty’ does not occur in the Constitution at all. The Constitution treats States as States, and the United States as the United States; and, by a careful examination, declares all the powers that are granted to the United States, and all the rest are reserved to the States…The States of this Union, are subject to all the voluntary and customary laws of Nations.” Alexander Stephens, A Constitutional View of the War Between the States, 390-391 (emphasis added). See, The Bank of Augusta vs. Earle (1839).

Upon this recognition in 1839, Daniel Webster in 1851 logically determines that the States not only have the right to nullify and interpose an unconstitutional federal law and act but also the ultimate right to secede from a union where it no longer holds the purpose for which it was formed, saying,



“How absurd it is to suppose that when different parties into a Compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest! I intend, for one, to regard, and maintain, and carry out, to the fullest extent, the Constitution of the United States, which I have sworn to support in all its parts and all its provisions…A bargain cannot be broken on side and still bind the other side…I am as ready to fight and to fall for the Constitutional rights of Virginia, as I am for those of Massachusetts.” Stephens, A Constitutional View of the War Between the States, 404 (emphasis added).

While it is not uncommon that one man may hold two different opinions in his life, the significance of this change in the life of Daniel Webster cannot be overstated. In his more mature years of life, he ardently acknowledges the nationhood status of the States and the unilateral right to nullify unconstitutional federal laws, to interpose federal usurpation and to secede from the union. Webster was not the only significant politician that objectively admitted the power of the States to nullify, interpose and secede from a constitutional perspective. President Woodrow Wilson—not really considered a States’ Rights President by any stretch of the imagination—wrote a book entitled, Disunion and Reunion, and this is what he said concerning the sovereignty of the States and their power to unilaterally exercise their political authority:



“It may…be doubted whether [the federal government constituted one nation created by the whole people, independent of the sovereign states as parties to a compact] was the doctrine upon which the Union had been founded. It seems impossible to deny that the argument [that the union was created by sovereign states through assent to a federal compact] contained much more nearly the sentiment of 1787-89.



“There are no indications that [the Virginia and Kentucky Resolutions of 1789] were considered treasonable at the time they were passed; they do not even seem to have shocked the public sense of constitutional duty. Indeed, the doctrine that the States had individually become sovereign bodies when they emerged from their condition of subjection to Great Britain as colonies, and that they had not lost their individual sovereignty by entering the Union, was a doctrine accepted almost without question, even the courts, for quite thirty years after the formation of the government.



“Those who worked the theory out to its logical consequence described the sovereignty of the federal government as merely an emanation from the sovereignty of the States. Even those public men who loved the Union most, yielded theoretical assent to the opinion that a State might legally withdraw from the government at her option, and had only practical and patriotic objections to urge.” Woodrow Wilson, Disunion and Reunion, 1829-1909, Ed. Albert Hart, (Longman’s, Green and Co., (Chicago, IL, 1918), 45-46 (emphasis added).

Of course Wilson’s understanding of history comports to what Alexander Hamilton and James Madison explained in the Federalist Papers regarding the States’ power to secede from the union where they determine that the federal government has usurped its delegated authority and has (presumptively) become tyrannical. Hamilton and Madison said this on the subject:



a) “If such presumptions [of schemes by the federal government to subvert the liberties of a great community] can fairly be made, there ought at once to be an end of all delegated authority. The people should resolve to recall all the powers they have heretofore parted with out of their own hands, and to divide themselves into as many States as there are counties, in order that they may be able to manage their own concerns in person.” Hamilton, FP 26 (emphasis added).



b) “[We] rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.” James Madison, FP 39 (emphasis added).



c) “We have heard of the impious doctrine in the Old World, that the people were made for kings, not kings for the people. Is the same doctrine to be revived in the New, in another shape that the solid happiness of the people is to be sacrificed to the views of political institutions of a different form?… [If] the Union itself [becomes] inconsistent with the public happiness…Abolish the Union.” James Madison, FP 45 (emphasis added).



The founding generation was wise and studied enough to know that were the States to lose their ability to protect themselves against federal usurpations[1], freedom would be lost (and that was the social and political presumption when only 3 million people composed the States [and less than that considering only 9 States were required to secede from the Articles of Confederation and accede to the U.S. Constitution], where agriculture was the main source of livelihood, where the cultures were largely Christian in practice, where only 9 [of 13] States were to compose the union, where technology did not exist to allow the federal government to intrude upon rights as it does today, where the States were considered much stronger than the federal government and would remain as such). Those conditions no longer exist, and in fact are inverted. What does this say of the purpose and presumptions of forming a political union under the terms then proposed? Therefore, the need for the States to use their God-granted authority and sovereignty to resist federal encroachment and long-train of abuses should be obviously necessary today more than the founders could have imagined in 1787. In truth, we have seen the predictions of the Anti-Federalists (men such as Patrick Henry and Samuel Adams—the fathers of the American Revolution) come to fruition before our very eyes.[2]



The quintessential element of sovereignty is the ability to protect and execute it. This necessarily includes the tools of nullification, interposition and secession. Any student of political philosophy who has studied what our founders studied (Algernon Sidney, John Locke, Jean Rousseau, Hugo Grotius, Sir Edward Coke, Jean Burlamaqui, Emer Vattel, William Blackstone, Charles Montesquieu, etc.) know that without this innate and inherent ability to protect sovereignty, there is no sovereignty at all. We know that this element exists as a whole of the U.S. Constitution’s fundamental framework. Without it, the constitution would not have been ratified. To destroy this principle is to destroy the federal union for the sake of a consolidated national supremacy, which was once rejected in 1787. Indeed, if what Brown says is true, then the founders who advocated the ideas represented above in the Federalist Papers were lying to the people of the States to hoodwink them into ratifying a constitution contrary to those federal ideas. That is fraud and is at best illegal, not to mention tyrannical. At the very least, all methods of constitutional interpretation should be viewed in a light more favorable to maintaining the sovereignty which the States originally possessed, for sovereignty cannot be passed or waived by implication, can only be given by expressed consent only. Yet, we are told to believe that regardless of what the constitution’s intent was, a Civil War diabolically launched by a man who knew that war was necessary to finally subjugate the States to the federal government’s supremacy determined the issue.



God save us from such people who actually get elected into public office and implement government policy, for these are they who are playing with fire, not the other way around. In fact, they have been playing with this deadly fire for so many decades, and those of us who have felt the painful burn of their pyromania are finally fed up enough to start doing something about it.





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[1] note: a constitutional plan to eliminate State Sovereignty and to grant to the national government the power to negative all state laws was proposed but rejected in the 1787 Constitutional Convention.



[2] What did they propose and predict? Some suggested that several confederacies be formed to allow the people to govern themselves at a closer, more controllable level. Some suggested that the terms of the U.S. Constitution gave too much power to the federal government that would be used to subvert State sovereignty.

South Carolina To Nullify Federal gun Regulations?

From Third Palmetto Republic:

Dec 29, 2010 (yesterday)SC to nullify Federal gun regulations?from Third Palmetto Republic by MichaelTweetThe backlash against Federal tyranny is spreading. SC’s Senator Bright is proposing what amounts to nullification of Federal gun regulations (which obviously violate the spirit and letter of the Second Amendment of the Constitution).




State Sen. Lee Bright, R-Roebuck, has prefiled legislation that would make a firearm, firearm accessory or ammunition that is commercially or privately manufactured in South Carolina and does not leave this state exempt from federal regulation, including registration.



The “South Carolina Firearms Freedom Act” cites the 10th Amendment, which gives states rights not granted to the federal government in the Constitution. The bill stipulates that the federal government doesn’t have the right to regulate such items that do not leave the state under the Commerce Clause in the U.S. Constitution.



Here is part of the problem we face. Many people believe that the Constitution gives them rights. The 10th Amendment doesn’t give the States rights – it reserves their rights. The powers of the Federal Government in the Constitution are delegated from the States, which derive their authority from their people. This is what has been largely lost in the Constitutional debate since 1865.



The bill is modeled after an effort in Montana that became law there in October, but has since been overturned by a federal judge. That decision is under appeal.



Ah! Imagine you had a dispute with your neighbour and the dispute went to court – a court where the judge was a member of your neighbour’s family. Why would you ever submit yourself before such a court? This is precisely the situation the States and people face today. We can expect to consistently lose appeals against Federal power in Federal courts. Until we are willing to defy Federal courts we might as well just quit complaining.



“If the gun is made here and used here, I don’t know how the Commerce Clause can regulate it … The Constitution gives us the right to bear arms, but it doesn’t limit rights,” Bright said. “There’s a lot of bills challenging federal authority, not just from me, but from other legislators around the country.”




Senator Bright is right about the growing resistance to Washington, DC. The problem is that Federal courts (which have an incentive for maintaining Federal authority considering that they are part of the Federal Government) will ultimately decide whether SC can take such an action or not – just as they did in the case of the similar law in Montana. How long until the States, localities or even individuals begin ignoring Federal court decisions and Federal mandates? Those who are willing to do this have to understand the likely consequences (which will almost certainly initially involve a denial of Federal money) and stand their ground regardless. How much do we value our liberty?

How We Will Oppose Sharia And Islam

From The Patriot Word:

Thursday, December 30, 2010How We Will Oppose Sharia and Islam...


Posted by Walter L. Brown Jr. at 8:06 AM Email This BlogThis! Share to Twitter Share to Facebook Share to Google Buzz

How to Oppose Sharia and Islam



Articles of the type that appeared in Pajamas Media today strategizing the best methods to oppose Sharia are a rarity. They are extremely important and substantially more attention needs to be applied to the best ways to oppose, stop the advance, and bring about the end of Islam. The author focuses primarily on identifying the best legal arguments against Sharia law:



The Five Best Arguments Against Sharia in the United States



1. U.S. law is the “supreme law of the land,” no exceptions.

2. Sharia, as “divine revelation,” is inherently undemocratic.

3. Many aspects of Sharia are flagrantly unconstitutional.

4. Sharia is fundamentally religious law, and should be inapplicable to U.S. criminal or civil law.

5. Subjectively, Sharia is a discriminatory and cruel legal system.



I agree with everything suggested except limiting the battle to these few albeit strong positions. I like the wolf-pack approach where Islam is attacked from every conceivable angle, this has the effect of forcing them to defend themselves everywhere and every step they take becomes an expensive legal battle, grid lock them until we can get the ball moving in the opposite direction. Here are some other angles of opposition:



Oppose them as a threat to national and public safety: Criminal, Anti-terror, and Sedition Laws

Oppose them as a threat to local character: Zoning Laws

Oppose them as a threat to citizens rights: Civil Rights Act and Anti-discrimination Laws

Oppose them philosophically and intellectually: Bankrupt ideas and distorted history

Oppose them economically: Trade sanctions against state supporters, boycotts of businesses

Oppose them militarily: Ending the state sponsorship of Islam, and implanting secular constitutions following unconditional surrender.

Oppose them publicly: Use history and their psychotic texts to form undeniable association that Islam is Evil, always has been and always will be.

Stigmatize Islam to the point that no one would readily choose it, defend it, or want to be part of it and you will have defeated it because only a very small majority would remain.



Break through every social barrier with an overwhelming wave of evidence of their actions and clear linkages to the Koran, Surrah, Sharia, and Islam which demand the grotesque evil that faithful Muslims are obliged to carry out.



We must recognize that Islam is our enemy and act appropriately, it will not end on its own, nor will it reform itself. It's a problem that must be cured at its source like Fascism and Japanese Imperialism.



A separation between good and evil is necessary, philosophically, and legally at a minimum and possibly physically as well. Not all Arabs, Italians, Germans, or Japanese were dangerous during WWII, however they all carried this unfortunate but necessary stigma because of the actions and philosophies of their countrymen.



Americans bear no ill will toward any group of people, if we are forced to fight you we will do so with the idea of defeating that which we are fighting. As it is impossible to discern with any confidence which of our Muslims residents will aid and abed our Muslim enemies, Muslims should easily understand the uncomfortable position we are forced into. Muslims choosing to advocate and advance the cause of Islam inspite of the at-war status we seem unavoidably headed for should not be surprise when they suffer stigmatization for their ideas. Muslims, Italians, Japanese, and German supporters of the Axis Powers during WWII were prosecuted for treason under the Smith Act which remains an option today as does use of the Patriot Act. Actions that we hold reprehensible but necessary, like war itself.



As the clouds of conflict between Islam and non-Islamic societies become ever darker, a famous and well stated admission of the necessity to engage in war after countless offenses have been suffered and all manner of plea for redress have been ignored, is appropriate.



We must, therefore, acquiesce in the necessity, which denounces our separation, and hold them, as we hold the rest of mankind, enemies in war, in peace friends...



Author: Thomas Jefferson Published July 4th, 1776..

We Hold These Truths Because They Are True

From The American Spectator:

Another Perspective


We Hold These Truths Because They Are True

By G. Tracy Mehan, III on 12.29.10 @ 6:07AM



The proper bafflers are the ambiguists. Their flashes of insights are frequent enough; but in the end the fog closes down. They are great ones for the facts, against the fundamentalists, and great ones of "conscience," against the cynics. They insist on the values of pragmatism against the absolutists; but they resent the suggestion that they push pragmatism to the point of relativism of moral values.

-- John Courtney Murray, S.J. (September 12, 1904-August 16, 1967)



We should not let the year end without noting the fiftieth anniversary of the publication of an American classic of political philosophy, one that combines both an appreciation of the unique nature of the American project with a profound understanding of the eternal verities of natural law reasoning, a mode of thought and discourse embedded in the nation's founding documents but otherwise banished from the halls of our great secular universities.



In 1960 the venerable publishing house of Sheed and Ward released We Hold These Truths: Catholic Reflections on the American Proposition by John Courtney Murray, S.J. It was a series of essays exploring "the American Proposition" which Abraham Lincoln cited in the opening lines of his Gettysburg Address.



Father Murray understood that, even in the 1950s, "the serene, and often naïve, certainties of the eighteenth century have crumbled." Thus, the "self-evident" truths of the Declaration of Independence "may be legitimately questioned."



"What ought not to be questioned, however, is that the American Proposition rests on the forthright assertion of a realist epistemology," asserts Murray. "The sense of the famous phrase is simply this: 'There are truths, and we hold them, and we here lay them down as the basis and inspiration of the American project, this constitutional commonwealth.'" Over and against positivists, Marxists and pragmatists, the Founding Fathers thought that "the life of man in society under government is founded on truths, on a certain body of objective truth, universal in its import, accessible to the reason of man, definable, defensible."



"If this assertion is denied, the American Proposition is, I think, eviscerated at one stroke," argues Murray. "For the pragmatists there are, properly speaking, no truths; there are only results. But the American Proposition rests on the more traditional conviction that there are truths; that they can be known; that they must be held; for, if they are not held, assented to, consented to, worked into the texture of institutions, there can be no hope of founding a true City, in which men may dwell in dignity, peace, unity, justice, well-being, freedom."



Murray says "we hold these truths because they are true. They have been found in the structure of reality by that dialectic of observation and reflection which is called philosophy."



In the Catholic world prior to Vatican II, the issue of American religious pluralism was problematic. Indeed, Father Murray's writings were restrained from time to time by Rome. Yet, as can be seen in the teachings of Benedict XVI and John Paul II, the American constitutional system is now viewed as a positive good, not out of any tolerance for moral relativism, but due to a greater appreciation of the handiwork of James Madison, the First Amendment, "a great act of political intelligence" according to Murray.



As a matter of historic fact, "pluralism was the native condition of American society." Yet, the first truth to which the American Proposition makes appeal in the Declaration of Independence ("that landmark of Western political philosophy") basically asserts "the sovereignty of God over nations as well as over individual men," hardly a Jacobin or laicist position. Recall that language of inalienable rights coming from a Creator.



Murray takes a phrase from Boswell's Dr. Johnson to characterize the first two articles of the First Amendment, forbidding the establishment of a state religion and protecting the free exercise of religious practice, as "articles of peace," not articles of faith in our pluralist society. Although today, decades later, it may seem like a commonplace observation, he believed that the "goodness" of the amendment was "manifested not only by political but also religious experience. By and large (for no historical record is without blots) it has been good for religion, for Catholicism, to have had simply the right to freedom."



Absolutists, calling for walls and moats and the elimination of religion from the public square, forget that the First Amendment was designed to protect religious freedom, not to undermine it.



"The American Catholic is on good ground when he refuses to make an ideological idol out of religious freedom and separation of church and state, when he refuses to 'believe' in them as articles of faith," writes Father Murray. "He takes the highest ground available in this matter of the relations between religion and government when he asserts that his commitment to the religion clauses of the Constitution is a moral commitment to them as articles of peace in a pluralist society."



We Hold These Truths is not merely a book about limited "Catholic" interests in the American political system but a sustained defense of reason and rationale discourse in a civil society. In it Murray argues for the necessity and universality of natural law reasoning which provides a cogent basis for governing the commonwealth.



"The doctrine of natural law has no Roman Catholic presuppositions," says Murray. "Its only presupposition is threefold: that man is intelligent; that reality is intelligible; and that reality, as grasped by intelligence, imposes on the will the obligation that it be obeyed in its demands for action or abstention."



Rejecting John Locke's abstract, isolated individualism, Murray believes that natural law "regards the community as a 'given' equally with the person." Moreover, "Man is regarded as a member of an order instituted by God, and subject to the laws that make the order an order-laws that derive from the nature of man, which is essentially social as it is individual."



"Law is not simply the protection of rights but their source, because it is the foundation of duties," says Murray.



Murray had a keen intellect, steeped in the classical and Western traditions once common among Jesuits of his stature. He was comfortable arguing politics, theology, national defense policy and history. He challenged assumptions of both the Left and Right. He offered precise and subtle arguments that have been used and, sometimes, misused by both sides in debates over different issues over the years. But his faith in the inherent reasonableness of God and man is a welcome tonic to the corrosive anti-intellectualism, power politics and relativism of the present age.



Letter to the Editor



G. Tracy Mehan, III served at the U.S. Environmental Protection Agency in the administrations of both Presidents Bush. He is a consultant in Arlington, Virginia, and an adjunct professor at George Mason University School of Law.

Is It A Right, Or Isn't It?

From The American Spectator:

The Obama Watch


Is It a Right or Isn't It?

By Ross Kaminsky on 12.29.10 @ 6:08AM



In an October, 2008 debate against John McCain, Barack Obama said that health care "should be a right for every American."



In rights parlance, his assertion is one of a "positive right" meaning that others may be compelled to provide a person's health care. This is distinguished from essentially every right laid out for Americans in our Constitution: these are "negative rights," meaning that they proscribe others from inhibiting you from exercising your right but do not otherwise require active cooperation of others. Your right to free speech does not require others to help you breathe; it simply requires them to leave you alone (except in a few very specific circumstances where your speech is likely to cause imminent harm to others, thus infringing on their negative right not to be killed, beaten, or robbed).



On the other hand, if health care is a right, that means that an American who for whatever reason does not have access to a doctor must be provided that access, whether that means redistributing taxpayer money to the would-be patient or even the potential of forcing a doctor to provide his services in an area "underserved" by health care professionals.



The problem with Obama's positive right formulation -- as with all positive rights -- is that one never knows where such a right ends, if or when such a right might be curtailed when it conflicts with citizens' other (usually negative) rights.



Those who argue that perhaps our foundational (and negative) American right to the pursuit of happiness is infringed upon by the government's taking money earned presumably "according to our ability" and distributed presumably "according to our need" are called heartless and told that our policy suggestions will lead to children starving in the streets. Conservatives and libertarians have never figured out how to counter such heart-rending arguments -- even if the arguments are utterly belied by real-world outcomes, such as the 1996 welfare reform bill signed by a reluctant Bill Clinton (who now proudly claims that legislation as one of his great achievements).



In the modern welfare state, the asserted positive right seems always to win; in particular, there seems to be no limit to the amount of a "rich" person's money the left is willing to redistribute in order to fund America's own socialism-lite, pleasantly rephrased "the safety net."



Indeed, why should there be a limit if welfare or a retirement income or health care is a right?



But at some point, even the charitable and constitutionally illiterate American populace pushes back on the cost of these so-called rights. With trillion-plus-dollar budget deficits as far as the eye can see, we've reached that point in America and the government is now looking for ways to curtail the cost of the latest created right, the so-called right to health care. And when looking to contain costs, it only makes sense to look where government's costs are highest: in the last year of a person's life.



Studies have shown that the percentage of Medicare spending for people in the last year of their lives has been in a narrow range just under 30% for several decades, with about 5% of Medicare patients dying each year.



Chief of the Centers for Medicare and Medicaid Services, Dr. Donald Berwick, a health care socialist who idolizes the British National Health Service -- that's the group who will only treat macular degeneration in one eye because it's better for a person to go blind in one eye than for the government to spend another £1,500 to save both eyes -- is on record saying that health care must and will be rationed. In that vein, and despite a similar provision being removed from the Obamacare bill during debate in the Senate with cries of "death panels," Berwick has issued a rule allowing reimbursement to doctors for end-of-life planning.



Of course, the only way such planning will save money is if the plan calls for grandma to die a little sooner. (Take that, former Congressman Alan Grayson.) And suddenly, liberals come face to face with the contradiction, or at least unsustainability, of their assertion of health care as a right.



After all, if it is a right, shouldn't Grandma Smith be entitled to as much of the Jones' and Jacksons' money as necessary to keep her alive for as long as she wants to and can have a pulse in her heart, a breath in her lungs?



The big-picture problem for the left is that in the context of government-run health care Berwick's rule is not only sensible, but it's the only possible outcome. This leaves proponents of a "right" in the uncomfortable position of having to say that it's only a right up to a certain age, a certain degree of sickness, or a certain cost.



Yet, if a "right" ends at an arbitrary point set by bureaucrats and legislators -- a point not based on conflict with other rights but rather with changeable financial or political considerations -- then it can't be a right. Furthermore, if a positive right such as that claimed by supporters of Obamacare can be curtailed because of cost, then every government program that relies on the redistribution of wealth can be curtailed. Either they're all "rights" or none of them is.



Of course, the idea that government, with an incentive to "control costs," would be involved with end-of-life counseling is disturbing enough. But perhaps the biggest problem for Progressivism in the news of Berwick's giant step toward health care rationing is that the country is learning in an unmistakable way that the emperor has no clothes. In our constitutional republic, positive rights are anathema to liberty and to life itself.



Letter to the Editor



Ross Kaminsky is a professional derivatives trader, a fellow at the Heartland Institute, and a frequent contributor to Human Events. He blogs at Rossputin.com.

We No Longer Have a Republic Subservient To The Constitution

From World Net Daily and The Patriot Update:

BORN IN THE USA?




'We no longer have republic subservient to Constitution'

Officer: Lakin case is end of 'rule of law'



--------------------------------------------------------------------------------

Posted: December 29, 2010

10:01 pm Eastern





By Bob Unruh

© 2010 WorldNetDaily







Dr. Terrence Lakin

A retired military officer who pursued all the way to the U.S. Supreme Court a legal challenge to Barack Obama's occupancy of the Oval Office says the conviction and sentencing of an active duty officer who raised similar questions signals the end of the "rule of law" in the United States.



Cmdr. Charles Kerchner's legal case, handled by attorney Mario Apuzzo, alleged that Congress failed its constitutional duty to examine the legitimacy of a successful candidate during the Electoral College vetting process on Capitol Hill. The Supreme Court ultimately decided not to hear arguments, leaving standing a lower court's dismissal.



Sign a petition to state elections officials demanding they remove the constitutional cloud over the presidency by requiring documentation of candidates' eligibility.



Now Kerchner has attended, and is analyzing, the military's court-martial of now-former Lt. Col. Terrence Lakin, who refused to deploy to Afghanistan because of concerns that Obama consistently refused to document his eligibility to serve as commander in chief.



His comments came in an interview with Sharon Rondeau of The Post & Email.



The judge in Lakin's case, Col. Denise Lind, ordered that Lakin could not raise the issue of Obama's eligibility, could not seek through the discovery process evidence that would support him, could not bring in evidence to the trial and could not bring in the witnesses he sought.



The conviction, then, was assured before the panel of officers ever deliberated the question.



That means, warned Kerchner, "we no longer have a rule of law and a constitutional republic subservient to the fundamental law of the land, the U.S. Constitution."



He explained how Lakin, before publicly challenging Obama's eligibility to serve as president under the Constitution's "natural born citizen" requirement – an issue that remains undocumented – had gone through every available channel seeking resolution.



"Terry had been questioning Obama's eligibility for over two years, and not only did he go to his elected representatives; he used a formal path available to soldiers, filling out a form or writing a letter, to request a congressional inquiry," Kerchner told The Post & Email.



(Story continues below)









"If a soldier is having some issue with the military chain of command or for any reason feels that he has been unjustly treated, there is the Article 138 where you can directly ask your senior chain of command about it. He also filed another form or letter to request a congressional inquiry; he requested more than once that an investigation be done about Obama's eligibility because as an officer, he had sworn an oath to the U.S. Constitution. He had great doubts that Obama was eligible, and he wanted them to investigate, and they didn't even answer him," Kerchner explained.



"The Congress did nothing. Terry, as a soldier, had a further right to one, and he didn't even get an answer. For example, if you allege that your commanding officer is mistreating you, Congress investigates those allegations. Terry asked for a congressional inquiry because no one in his chain of command was answering his questions, and they didn't answer him. He felt he was being unjustly treated and ignored by his chain of command in their not addressing or answering his questions about the eligibility of Obama to be the commander-in-chief and president," he said in the lengthy interview with Rondeau.



"Not even statutory laws are being obeyed," he said. "Not even regulations regarding congressional inquiries from soldiers are being obeyed. It's strictly to defend one man, a phony, a fraud, the usurper-in-chief, Obama. Our whole system of government, our whole culture has been corrupted and turned upside-down and completely rotted from the inside out to protect this man. All of our laws are being subverted and ignored because they know the answer: he's not eligible."



WND has reported on dozens of legal challenges to Obama's status as a "natural born citizen." The Constitution, Article 2, Section 1, states, "No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President."



Some of the challenges question whether he was actually born in Hawaii, as he insists. If he was born out of the country, Obama's American mother, the suits contend, was too young at the time of his birth to confer American citizenship to her son under the law at the time.



Other challenges have focused on Obama's citizenship through his father, a Kenyan subject to the jurisdiction of the United Kingdom at the time of his birth, thus making him a dual citizen. The cases contend the framers of the Constitution excluded dual citizens from qualifying as natural born.



Several of the cases have involved emergency appeals to the U.S. Supreme Court in which justices have declined even to hear arguments. Among the other cases turned down without a hearing at the high court have been petitions by Philip Berg, Cort Wrotnowski, Leo Donofrio and Orly Taitz.



Complicating the situation is Obama's decision to spend sums estimated in the hundreds of thousands of dollars to avoid releasing a state birth certificate that would put to rest all of the questions.



Obama wrote in his own book that he was born a dual citizen of the U.S. and Great Britain due to the fact his father was a subject of the British crown when Obama was born.



Lakin announced nearly a year ago that he would not deploy as per Obama's orders until his eligibility to issue such orders was verified. Lakin was stripped of his duties, then court-martialed and now is imprisoned in Ft. Leavenworth for six months.



Lakin supporters have established a fund to support Lakin's legal defense and provide for the needs of his wife and children while he is incarcerated.



Financial contributions should be sent to the Terry Lakin Action Fund, the only fund authorized by Lakin's family. Donate online at Terrylakinactionfund.com using any major credit card, or mail checks made payable to the Terry Lakin Action Fund, PO Box 1116, Bel Air, MD 21014.



Cards and letters, but no packages, can be sent to Lakin at the following address, and should not mention rank: Terrence Lakin #89996, 830 Sabalu Road, Fort Leavenworth, Kan. 66027.



No hospital has admitted Obama was born there, and while state officials in Hawaii say they have confirmed his birth documentation, they refuse to reveal what it states. The type of document posted online by Obama is available to those not born in the state.



Kerchner also said the defense counsel for Lakin should have raised the issue of the so-called Nuremberg defense. That refers to the trials after World War II where Nazi officers explained they simply were following orders, and many ended up convicted for their atrocities.



"I would have brought up the Nuremberg defense and cited the officer(s) tried at Nuremberg who told that court it was not his duty to question orders from the supreme commander, meaning Adolf Hitler, and that your duty is to obey orders, and that man was hanged for that: for blindly accepting all orders from the supreme commander," Kerchner said.



It is up to officers to evaluate orders and follow those that are legal and disobey others, he said.



"And what is a lawful order? That is the officer’s decision to make and ask his superiors and a congressional inquiry to find out if he has a doubt, and he did that, and they ignored him. The Constitution is not a piece of parchment paper down there on display in Washington. It is the fundamental law of the land. The lawfulness of all orders issued by officers and the people above them shall be judged by that law, because his officer's oath is to do just that, to support and defend the Constitution," he said.



For now, hope must rest with Republicans in the new Congress, he said.



"The only thing left is to go back to the political process which failed us the first time and hope that the new Congress, with a Republican-controlled House finally listens to the people and holds a congressional investigation with full subpoena power. We need to force them to do that. They can now justify it by saying, 'The prior Congress made a mistake, but we're not going to do it,'" he said.



He warned that if that does not happen, other repercussions will follow.



"If they don't, the only thing left is John F. Kennedy's words and the Declaration of Independence: 'Those who make peaceful resolution (to paraphrase; he used the word 'revolution') impossible make violent resolution inevitable.' This is not going to stand with the people forever. It's going to boil over at some point, and what they thought they were preventing – violence in the inner cities if he were properly vetted and revealed he was not eligible – will result in and cause far, far, far worse by what they have done by corrupting every institution and system of our government to protect an ineligible man, a phony, the usurper-in-chief, Mr. Zero."



He pointed out that if Obama's eligibility is not fully documented, "not only should Lakin have his conviction expunged; he should be given the Medal of Freedom."



"The truth always wins. If the truth always comes out and Obama is proven to be a fraud, which we know he is, then justice mandates that Lt. Col. Lakin be vindicated, pardoned, and his kangaroo court conviction record expunged from history and a new history written that he did the right thing in the face of adversity," he said.



See the full Post & Email interview.



Meanwhile, Hawaii's new governor, Neil Abercrombie, is promising he wants to find a way to release Obama's documentation to put the story to rest, which appears to be not going away anytime soon.



According to the Supreme Court's own website, there is scheduled to be a conference Jan. 7, 2011, on a case submitted by Orly Taitz.



This particular case has had a long proceeding; it began as a challenge to the legality of the military orders under Obama, whose eligibility to hold the office of president never has been documented to date. While that officer, Capt. Connie Rhodes, ultimately followed her orders, the attorney was fined $20,000 in the case, and it continued its path through the 11th Circuit Court of Appeals and now is pending in Washington.






Whether it will fall by the wayside as have other cases on the same issue that have been submitted to the court remains to be seen. But even if this case falls, it doesn't appear the issue itself will fade.



Consider:





More than a year ago, polls revealed that a bare half of the people in the United States even knew there was an issue over Obama's eligibility but recent polls have indicated up to 58 percent of Americans now have doubts over that issue.





Fining attorneys, even jailing defendants, as happened to Lakin, hasn't caused the issue to disappear.





A billboard campaign that simply asks "Where's the Birth Certificate" has appeared in many dozens of locations, and one billboard company that a year ago concluded it was more or less a settled issue now has asked to be allowed to participate in the campaign.





Various officials have "verified" Obama's eligibility but have declined to document their statements.





Extensive examinations of the available record suggest Obama likely is, in fact, ineligible.





There remains a multitude of lawsuits still making their way toward Supreme Court review:





In Congress, a pending proposal would require all candidates for the office of president to document their eligibility under the Constitution's requirement that they be a "natural born citizen."





Similar plans are moving even more quickly at the state legislature level.





And there even are predictions that Congress will take up the dispute.





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