The Federalist Papers, No. 74: The Command Of The Military And Naval Forces, And The Pardoning Power Of The Executive

From Human Events--Guns & Patriots:




Federalist No. 74



by The Federalist Papers





05/17/2011











The Command of the Military and Naval Forces, and the Pardoning Power of the Executive

New York Packet

Tuesday, March 25, 1788.



To the People of the State of New York:



THE President of the United States is to be "commander-in-chief of the army and navy of the United States, and of the militia of the several States WHEN CALLED INTO THE ACTUAL SERVICE of the United States." The propriety of this provision is so evident in itself, and it is, at the same time, so consonant to the precedents of the State constitutions in general, that little need be said to explain or enforce it. Even those of them which have, in other respects, coupled the chief magistrate with a council, have for the most part concentrated the military authority in him alone. Of all the cares or concerns of government, the direction of war most peculiarly demands those qualities which distinguish the exercise of power by a single hand. The direction of war implies the direction of the common strength; and the power of directing and employing the common strength, forms a usual and essential part in the definition of the executive authority.



"The President may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective officers." This I consider as a mere redundancy in the plan, as the right for which it provides would result of itself from the office.



He is also to be authorized to grant "reprieves and pardons for offenses against the United States, EXCEPT IN CASES OF IMPEACHMENT." Humanity and good policy conspire to dictate, that the benign prerogative of pardoning should be as little as possible fettered or embarrassed. The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel. As the sense of responsibility is always strongest, in proportion as it is undivided, it may be inferred that a single man would be most ready to attend to the force of those motives which might plead for a mitigation of the rigor of the law, and least apt to yield to considerations which were calculated to shelter a fit object of its vengeance. The reflection that the fate of a fellow-creature depended on his sole fiat, would naturally inspire scrupulousness and caution; the dread of being accused of weakness or connivance, would beget equal circumspection, though of a different kind. On the other hand, as men generally derive confidence from their numbers, they might often encourage each other in an act of obduracy, and might be less sensible to the apprehension of suspicion or censure for an injudicious or affected clemency. On these accounts, one man appears to be a more eligible dispenser of the mercy of government, than a body of men.



The expediency of vesting the power of pardoning in the President has, if I mistake not, been only contested in relation to the crime of treason. This, it has been urged, ought to have depended upon the assent of one, or both, of the branches of the legislative body. I shall not deny that there are strong reasons to be assigned for requiring in this particular the concurrence of that body, or of a part of it. As treason is a crime levelled at the immediate being of the society, when the laws have once ascertained the guilt of the offender, there seems a fitness in referring the expediency of an act of mercy towards him to the judgment of the legislature. And this ought the rather to be the case, as the supposition of the connivance of the Chief Magistrate ought not to be entirely excluded. But there are also strong objections to such a plan. It is not to be doubted, that a single man of prudence and good sense is better fitted, in delicate conjunctures, to balance the motives which may plead for and against the remission of the punishment, than any numerous body whatever. It deserves particular attention, that treason will often be connected with seditions which embrace a large proportion of the community; as lately happened in Massachusetts. In every such case, we might expect to see the representation of the people tainted with the same spirit which had given birth to the offense. And when parties were pretty equally matched, the secret sympathy of the friends and favorers of the condemned person, availing itself of the good-nature and weakness of others, might frequently bestow impunity where the terror of an example was necessary. On the other hand, when the sedition had proceeded from causes which had inflamed the resentments of the major party, they might often be found obstinate and inexorable, when policy demanded a conduct of forbearance and clemency. But the principal argument for reposing the power of pardoning in this case to the Chief Magistrate is this: in seasons of insurrection or rebellion, there are often critical moments, when a welltimed offer of pardon to the insurgents or rebels may restore the tranquillity of the commonwealth; and which, if suffered to pass unimproved, it may never be possible afterwards to recall. The dilatory process of convening the legislature, or one of its branches, for the purpose of obtaining its sanction to the measure, would frequently be the occasion of letting slip the golden opportunity. The loss of a week, a day, an hour, may sometimes be fatal. If it should be observed, that a discretionary power, with a view to such contingencies, might be occasionally conferred upon the President, it may be answered in the first place, that it is questionable, whether, in a limited Constitution, that power could be delegated by law; and in the second place, that it would generally be impolitic beforehand to take any step which might hold out the prospect of impunity. A proceeding of this kind, out of the usual course, would be likely to be construed into an argument of timidity or of weakness, and would have a tendency to embolden guilt.



PUBLIUS.

Appeals Court In Virginia Hears Health Care Cases

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May 10, 9:35 PM EDT






Appeals court in Va. hears health care cases



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RICHMOND, Va. (AP) -- A federal appeals panel dominated by appointees of President Barack Obama heard arguments Tuesday in two Virginia lawsuits challenging his health care overhaul.



The three-judge panel of the 4th U.S. Circuit Court of Appeals vigorously questioned lawyers on both sides, but the most spirited exchanges focused on the central issue in both cases: whether the law's requirement that individuals buy insurance is constitutional. Federal judges in Virginia split on that question in the lawsuits, one filed by Virginia Attorney General Kenneth Cuccinelli and the other by Liberty University.



The 14-member court uses a computer program to randomly select its panels, and Obama could hardly have wished for a better outcome. He appointed two of the judges, Andre M. Davis and James A. Wynn Jr. The other was Judge Diana Gribbon Motz, an appointee of former President Bill Clinton.



"They were aggressive in both directions for both sides, so I don't draw any great concern about that," Cuccinelli said at a news conference after the hearings.



The Richmond-based 4th Circuit has historically been viewed as the nation's most conservative appeals court, but recent Democratic appointments have steered it more toward the ideological center - a trend that was in evidence in the packed courtroom Tuesday.



"This was certainly a favorable draw for the government," said Kevin Walsh, an assistant professor of law at the University of Richmond who attended the hearings. "All three judges appeared more skeptical of the challengers' argument and more accepting of the federal government's."



Liberty attorney Mathew Staver, like Cuccinelli, downplayed the makeup of the panel.



"I don't think it should matter at the end of the day whether they are appointed by Republicans or Democrats, conservative or liberal," he said. "There is no case in our history that forces a person to buy a product, and that's the question they're going to have to wrestle with."



Thirty-one lawsuits have been filed challenging the law, and nine of those have been appealed, but the two Virginia cases are the first to reach the argument stage in a federal appeals court. The judges are expected to rule within a few weeks.



In what amounted to a dress rehearsal for the U.S. Supreme Court, which both sides agree will have the final word, Staver and Virginia Solicitor General Duncan Getchell Jr. argued that Congress exceeded its authority under the Constitution in requiring individuals to buy health insurance. U.S. Acting Solicitor General Neal Kumar Katyal argued in both cases that the mandate is a valid exercise of congressional authority under the Commerce Clause.



Liberty, which opposed the law as an employer that would be affected by its provisions, is appealing U.S. District Judge Norman Moon's ruling upholding it. The Justice Department is appealing U.S. District Judge Henry E. Hudson's decision striking down the insurance mandate in the case filed by Cuccinelli. Hudson left the rest of the voluminous health care law intact.



The appeals panel focused on the individual mandate in the Liberty appeal, which it heard first, and devoted most of its attention in the second case to the question of whether Virginia had standing to sue based on a state statute that was passed to circumvent the federal law.



Staver told the panel that the federal law exceeds the bounds of the Commerce Clause by regulating "economic inactivity" - a person's decision not to buy a product. He said the law "forces inactive bystanders into the stream of commerce."



But Katyal said people are already involved in commerce as consumers of health services, and that's what the law regulates. The only question is who pays for the services, he said, and the law aims to reduce the $45 billion a year in health care costs run up by the uninsured. Those costs add about $1,000 a year to the average family premium of those who do buy insurance, Katyal said.



Staver said that if the government can force people to buy insurance, it also can force them to buy other products - healthy foods or a gym club membership, for example, if the government determines that obesity is a major problem. He said "there would be no limit" to what the government could require citizens to buy.



However, Wynn suggested that Staver's claim overlooks a key point in the government's argument - that virtually everyone, at some time, will consume health care services.



"You can't make the argument that, in the aggregate, people are going to be obese or unfit," he said.



In the morning's second hearing, Getchell Jr. said the Virginia General Assembly had a right to pass a law declaring that the state's citizens could not be compelled by the government to buy insurance. He said the authors of the Constitution intended for the federal courts to be arbiters of such conflicts over state sovereignty.



"If federal court is not the forum, there's no forum," he said.



Katyal said that if Virginia's tactic is allowed to stand, states will be able to pass laws exempting their citizens from the war in Afghanistan, paying Social Security taxes or any other federal policy they don't like.



The cases could reach the Supreme Court in time for a decision by early summer 2012.



---



Associated Press Writer Dena Potter contributed to this report.



© 2011 The Associated Press.

Federal Appeals Courts Set To Hear ObamaCare Cases

From The Washington Times and ADF:

Federal appeals courts set to hear ‘Obamacare’ cases




Requirement to purchase is challenged





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Last year’s massive health care overhaul is about to face a round of hearings in federal appeals courts, beginning Tuesday when the 4th U.S. Circuit Court of Appeals hears competing cases about the law’s constitutionality.



Two lower-court judges in Virginia last year ruled in opposite ways: One judge upheld the law, turning back a challenge by Liberty University, while another judge struck down key parts of the law, upholding state Attorney General Kenneth T. Cuccinelli II’s lawsuit.



The losing parties in both cases are now going to the appeals court in Richmond, where a three-judge panel will hear the cases. They center on whether the government can require every American to purchase health insurance or face a tax penalty — the so-called “individual mandate.”



“The individual mandate is the threat to liberty,” Mr. Cuccinelli told The Washington Times. “That is the most important thing we’re addressing here.”



Five lower federal courts have so far ruled on the individual mandate. Three judges appointed by Democrats have ruled that it is constitutional and two judges appointed by Republicans have ruled it is unconstitutional.



The 4th Circuit Court will be the first appeals court to take up challenges to the health care law. Two more appeals are scheduled for hearings, in Michigan on June 1 and in Florida on June 8. Both sides expect the disputes to eventually work their way up to the Supreme Court, which last month turned down a request by Mr. Cuccinelli to divert them from the appeals process and hear them more quickly.



A ruling from the appeals court in Richmond is expected within about three months, said Elizabeth Wydra, counsel for the Constitutional Accountability Center, a left-leaning, Washington, D.C.-based think tank that has filed an amicus brief defending the constitutionality of the health care act.



“The 4th Circuit generally gets their opinions out pretty quickly,” Ms. Wydra said. “What I think will be interesting is to see the appellate court judges take on not the political firestorm, but the constitutional law issues.”



Opponents say the federal government cannot force individuals to buy a particular good or service, while supporters say the mandate is constitutional under the so-called “commerce clause” of the Constitution. Those supporters say that because everyone will use the health care market at some point, it is an acceptable use of federal interstate commerce powers to require them to buy insurance upfront.



Liberty University is also challenging a provision that requires employers to offer health insurance if they employ more than 50 people

The panel, whose members won’t be disclosed until Tuesday morning, will hear the cases back to back. Acting U.S. Solicitor General Neal Katyal will present the federal government’s case, while commonwealth Solicitor General Duncan Getchell will argue for Virginia. Mathew Staver, dean of the Liberty University School of Law, will argue the school’s case.




Mr. Cuccinelli, a Republican, who opted to file a separate challenge by Virginia instead of participating in a similar lawsuit filed by more than two dozen states, thinks the Justice Department will continue to appeal as long as possible.



“If we win, we believe they will ask for unbiased review because that will drag it out a couple more months,” he said. “But eventually, we’re going to have a final ruling and whoever loses will appeal the case to the Supreme Court and they’re going to take the case.”




© Copyright 2011 The Washington Times, LLC

Stacked Appeals Court Panel Hearing ObamaCare Legal Challenge

From LifeNews.com and ADF:

Stacked Appeals Court Panel Hearing Obamacare Legal Challenge




by Steven Ertelt
Richmond, VA
LifeNews.com
5/10/11 10:33 AM



A majority of Americans may strongly oppose the Obamacare law that allows abortion funding and presents rationing concerns, but the computers at the U.S. Court of Appeals for the Fourth Circuit apparently love the law.



That’s because the computer system that randomly selects the panel of three judges from the appeals court to conduct oral hearings on the legal debate surrounding the law picked three judges from a evenly-divided court who are all Democrats. All three judges listening to two legal challenges today were appointed by Democrats — Judge Diana Motz, the senior member of the panel, is a Clinton appointee while Judges Andre Davis and James Wynn were appointed by Obama.



That makes it so the first appeals court hearing on Obamacare (more will come — such as the hearing in the main lawsuit filed by Florida and dozens of other states, where a federal judge sided against Obamacare) will come before a panel likely to agree with the Obama administration that the law is constitutional.



Today’s hearing, as LifeNews.com reported yesterday, involves two legal cases. The first, filed by Liberty University, and the second, an appeal by the Obama administration of a federal judge’s decision against Obamacare in the case filed by Virginia Attorney General Ken Cuccinell.



The three judges were randomly selected by the computer months ago and have likely been reading the numerous legal briefs offered by both sides and their supporters to prepare for today’s hearing. With the partisan nature of the appointments in various cases determining how judges have ruled thus far, the expectation is the panel will vote unanimously, or at least in a 2-1 vote, to overturn the lower court’s decision. That would set up either a request for the full appeals court to rule or an appeal to the Supreme Court — where everyone on both sides of the Obamacare debate expects the final resolution the law to come.



Last year U.S. District Judge Henry Hudson ruled Congress exceeded its authority by forcing Americans to buy health insurance via the individual mandate while Virginia had passed a law barring the federal government from making its citizens buy health insurance.



The Obama administration is so concerned about the lawsuit that the pro-abortion president has dispatched acting solicitor general Neal Kumar Katyal, who normally argues before the Supreme Court, to argue for upholding Obamacare. Matthew Staver, a pro-life attorney, will argue for Liberty University, while state solicitor general E. Duncan Getchell, Jr. will present the case for Virginia.



Staver commented on the case in advance of Tuesday’s historic oral arguments: “It is the hope of many Americans that this lawsuit is a fast track to the ultimate demise of this overreaching health insurance law. This law represents an astonishing extension of the federal government into the personal and business decisions of Americans. If Obamacare should be upheld by the courts, then there are no limits on what Congress can do. I think it is clear that Congress far exceeded its authority under the Constitution.”



On June 8, in Atlanta, the 11th Circuit Court of Appeals will hear oral arguments in the Florida case where 26 states challenged Obamacare.



Matt Barber, Director of Cultural Affairs with Liberty Counsel and the Associate Dean with Liberty University School of Law, commented on the cases.



“The Obama-Pelosi-Reid triumvirate ambitiously maintains – against considerable evidence to the contrary – that Democrats’ particular brand of health care reform is so important, so unique that the U.S. government is justified – for the first time in history – in forcing every American citizen to purchase his own untenable, unsustainable and demonstratively defective product under penalty of law,” he says. “Obamacare categorically lays the groundwork for universal health care. They didn’t just sell us a lemon, they squeezed it in our eyes and said, “pay up or else.”



“This is a case of first impression. That is to say, no Supreme Court case has ever allowed the federal government to force people into the stream of commerce. Neither has the high court ever permitted the federal government to compel its citizens to buy a government-defined product. If government has the authority to force unwilling citizens to purchase health insurance, then there is simply no limit to the power this mushrooming centralized mammoth can wield,” Barber added.



Meanwhile, support for repeal of the national health care law has rebounded after falling below 50% for the first time since it was passed by Congress in March of last year, according to a new Rasmussen Reports poll. The latest survey shows that 57% of Likely U.S. Voters now at least somewhat favor repeal of the law. Thirty-six percent (36%) oppose repeal. The new findings include 44% who Strongly Favor repeal of the measure and 26% who are Strongly Opposed.



“Rasmussen Reports has tracked support for repeal every week since the bill became law. Prior to last week, support for repeal has ranged from a low of 50% to a high of 63%. Last week, for the first time ever, support for repeal fell below 50%,” pollster Scott Rasmussen indicates.



Eighty-seven percent (87%) of Republicans and 56% of voters not affiliated with either major party favor repeal. Sixty percent (60%) of Democrats oppose it. Fifty percent (50%) of all voters believe the health care law will be bad for the country. Thirty-two percent (32%) hold the opposite view and believe the law will be good for the nation. Four percent (4%) say it will have no impact and 13% aren’t sure.



In the Virginia case, the judge ruled on December 13 that no court had expanded the Commerce Clause to allow the government to regulate a person’s decision not to buy a product.



“At its core, this dispute is not simply about regulating the business of insurance — or crafting a scheme of universal health insurance coverage — it’s about an individual’s right to choose to participate,” Hudson wrote.



Recently, the U.S. Senate rejected a move by Senate Republican Leader Mitch McConnell to have the Senate approve a bill the House approved to repeal Obamacare. Senators voted along party lines with all Democrats — including three who say they are pro-life — voting against repealing the abortion-funding bill while all Republicans supported repeal.



When Congress passed the government-run health care bill, it did so without any limits on abortion funding and language mandating taxpayer financing of abortion in certain circumstances. Obama eventually issued a controversial executive order supposedly taking the abortion funding issue off the table.



However, virtually every pro-life group said it would not mitigate the abortion funding because it doesn’t have the effect of law, could be reversed in the future, and because it didn’t tackle much of the abortion funding in the bill. The Obama administration could also ignore the order and not put it in place when the health care law goes into effect.



Arizona, Tennessee, Mississippi, Missouri, and Louisiana have passed similar bills that have already been signed into law by governors in those states and several other states are expected to consider legislation in their upcoming legislative sessions. Governors in Oklahoma and Florida vetoed similar legislation.

Power, Legitimacy And The Fourteenth Amendment

From confederateamericanpride.com:

Power, Legitimacy, and the 14th Amendment


by Joseph E. Fallon







The justification for the vast, intrusive, and coercive powers employed by the government of the United States against its citizens from affirmative action to hate-crimes legislation, from multilingualism to multiculturalism, from Waco to Ruby Ridge is the 14th Amendment to the U.S. Constitution adopted in 1868, or, more specifically, the authority conferred upon Washington, explicitly or implicitly, by the privileges and immunities and equal protection clauses of that amendment.



Like the emperors new clothes, however, the 14th Amendment does not exist. It was never constitutionally ratified, and, thus, acts of the government of the United States that are based on the 14th Amendment are actually illegitimate.



Despite its subsequent interpretation by the federal judiciary to mandate federal intervention in state and local affairs, the original aim of the 14th Amendment was to ensure the political and economic hegemony of the Northern states over the South. This was why Lincoln and Northern business interests waged total war against the South for four years: to transform the United States from a constitutional republic into a continental empire.



Section Two of the 14th Amendment permitted the disenfranchisement of Southern white men for participation in the rebellion. Since the word participation could mean anything from serving in the Confederate Army, to using the Confederate postal service, to paying taxes to the Confederate government, or even failing to rebel against the Confederate authorities, it could be used by the North to deny the right to vote to virtually the entire adult, white-male population of the South.



Section Three sought to expel the South from every level and branch of government by denying Southern white men who having taken an oath . . . to support the Constitution of the United States . . . engaged in insurrection or rebellion [against the United States] . . . or [had] given aid or comfort to the enemies thereof (essentially the entire leadership of the South) the right to hold political or appointive offices, either civilian or military, in state or federal governments. Again, the North could define engaged and given aid or comfort to bar anyone and everyone.



Section Four protected Northern politicians, military leaders, and businessmen who perpetrated financial fraud in the course of the war from future prosecution and ensured that the North would never have to pay reparations for the theft and destruction it committed against the South.



The 14th Amendment made a mockery of the U.S. Constitution. Sections Two and Three blatantly violated the Due Process Clause of the Fifth Amendment by denying nine million Southerners their political and civil rights on what President Andrew Johnson declared was an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. In addition, Section Three was an ex post facto law specifically prohibited by Article I, Section 9 of the U.S. Constitution. And Section Four violated both the Due Process and the Just Compensation Clauses of the Fifth Amendment.



Not surprisingly, when the 14th Amendment was introduced in Congress on June 13, 1866, as House Joint Resolution 127, it was opposed by members from the Southern states. Since Article V of the U.S. Constitution stipulated that an amendment proposed by Congress had to be approved by two-thirds majorities in both Houses, Southern votes ensured the proposed amendment would be defeated.



To prevent that, the Radical Republicans who controlled Congress unilaterally changed the composition of Congress in order to procure the needed majorities. In violation of the Constitutions Article I, Sections 2, 3, and 5, and in particular Article V (that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate), they unlawfully excluded the 61 representatives and 22 senators from the Southern states. Moreover, they counted the votes of West Virginia and Nevada, both unconstitutional entities created by Lincoln as part of his war measures.



Even after taking these steps, however, the proposed amendment still faced defeat in the Senate by one vote if the vote of Sen. John P. Stockton of New Jersey, an outspoken critic of the 14th Amendment, was counted. So the Radical Republicans unlawfully expelled him from the Senate as well.



The votes in both the House and Senate approving the proposed 14th Amendment were, therefore, fraudulent. Since President Andrew Johnson opposed the amendment, the initial fraud was compounded by the subsequent refusal of Congress to present the 14th Amendment to the President for his approval as mandated by Article I, Section 7 of the U.S. Constitution.



Once Congress has approved an amendment, Article V stipulates that ratification by three fourths of the states is required for adoption. On June 16, 1866, Congress submitted the unlawfully proposed 14th Amendment to the legislatures of all 36 states, including the Southern states excluded from Congress, for ratification. With the admission of Nebraska into the Union on March 1, 1867, as the 37th state, the number of states needed for ratification was 28.



By March 1, 1867, 12 States had rejected the 14th Amendment. This left only 25 states, three fewer than the U.S. Constitution required for adoption. Later, Maryland and California both voted to reject the amendment, while three states that had ratified itNew Jersey, Ohio, and Oregon rescinded their respective ratifications, citing voter fraud. While Congress rejected these rescissions, the damage had been done. The 14th Amendment had been constitutionally defeated.



The Radical Republicans reacted by enacting three laws between March 2 and July 19, 1867, known as the Reconstruction Acts. These laws reflected the attitude of Northern constitutionalists like Sen. James Doolittle of Wisconsin, who declared that, since the people of the South have rejected the constitutional amendment, the North should march upon them and force them to adopt it at the point of the bayonet; until they do adopt it, the North should rule the South by military force.



With the Reconstruction Acts, Congress declared no legal state governments existed in ten Southern states, even though Congress had officially recognized these state governments as legitimate since 1865. The adoption of the 13th Amendment abolishing slavery depended upon ratification by seven of these states: Alabama, Arkansas, Georgia, Louisiana, North Carolina, South Carolina, and Virginia for the required three-fourths majority. Branding them rebel states, Congress proceeded to abolish their governments. The South was divided into five military districts and, in blatant violation of both Article I, Section 9, of the U.S. Constitution and the U.S. Supreme Courts decision in Ex parte Milligan three months earlier, was placed under martial law. This action, motivated by malice for the South and contempt for the U.S. Constitution, has bequeathed to the United States an interesting and ironic legacy.



If the South had no legal state governments after 1861 (as Congress maintained in 1867 following the defeat of the 14th Amendment), then the 13th Amendment was never constitutionally ratified in 1865. Slavery, therefore, is still a lawful institution in the United States. On the other hand, if the South had legal governments (as Congress affirmed in 1865 when the South ratified the 13th Amendment), then the 14th Amendment was constitutionally defeated in 1867. Therefore, all subsequent legislative and executive acts and judicial decisions based upon the 14th Amendment are null and void.



Without the 14th Amendment, the federal government is deprived of a principal source of its power. Most, if not all, of the laws, regulations, and rulings pertaining to affirmative action, desegregation, hate crimes, multilingualism, multiculturalism, U.S. citizenship, voting, reapportionment, religion, education, housing, welfare, states rights, and territorial powers are based almost exclusively on the 14th Amendment. Even the immigration policy pursued since 1965 is justified, to a significant extent, by the 14th Amendment.



Through violence, intimidation, coercion, and fraud, through martial law, through congressional threats to confiscate and redistribute all the property of Southern whites, through removal of Southern governors and judges, and through congressional repeal of state laws requiring a majority of registered voters for the adoption of a new state constitution, Congress successfully created provisional governments. By 1868, these provisional governments had duly ratified the 14th Amendment (Congress having made ratification a requirement for readmission into the Union). However, under Article V of the U.S. Constitution, only states in the Union can ratify an amendment. Since Congress declared that these provisional governments were not states in the Union and, thus, had denied them representation in Congress, the provisional governments could not ratify this amendment. Therefore, the 14th Amendment remains unratified.



Led by the states of Mississippi and Georgia, Southern whites attempted to have the constitutionality of the Reconstruction Acts and, by implication, the ratification of the 14th Amendment reviewed by the U.S. Supreme Court. The Court agreed and, in 1868, heard legal arguments in Ex parte McCardle. When the justices indicated that they were favorably disposed toward the Souths constitutional argument, the Radical Republicans in Congress enacted legislation removing this subject from the Courts jurisdiction. This was the only constitutional act undertaken by the Radical Republicans in their relentless attempt to impose the 14th Amendment. According to Article III, Section 2, of the U.S. Constitution, the appellate jurisdiction of the U.S. Supreme Court is limited by such Exceptions, and under such Regulations as the Congress shall make.



After 1868, the federal government has not permitted any serious legal challenge to the constitutionality of the 14th Amendment. To do so would risk dismantling the entire apparatus of the federal government in a single stroke, depriving federal office holders, Democrats and Republicans, judges, politicians, and bureaucrats of the powers and perks they enjoy and expect.



The government of the United States, as established by the U.S. Constitution in 1789, was effectively abolished by the 14th Amendment. In its place was substituted a regime that resembles the absolutist centralized state envisioned by Thomas Hobbes in Leviathan. It is the type of political system Patrick Henry and other Founding Fathers had warned against; a consolidated government ruled by demagogues for the benefit of special interests.



It was natural for the post-14th Amendment government of the United States to expand from a continental empire, in which the states of the Union had been effectively reduced to mere administrative units of the federal government, to one whose reach would be, in the words of neoconservative ideologues William Kristol and Robert Kagan, nothing less than benevolent global hegemony. And it was a relatively simple matter, then, for the government of the United States to go from inflicting death and destruction at Waco to inflecting death and destruction on Iraq, Yugoslavia, and Afghanistan. Washington emulates Imperial Rome, of whom it was said, "They create a desert and call it peace."



Thanks to folly, hubris, and the 14th Amendment, the government of the United States is faithfully following in the footsteps of ancient Rome: from republic to empire to oblivion.



Joseph E. Fallon writes from Rye, New York.





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



Copyright 2002, www.ChroniclesMagazine.org

Thank Goodness For The Bill Of Rights!

From confederateamericanpride.com:

Thank Goodness for the Bill of Rights!


by Jacob G . Hornberger

Defense Secretary Donald Rumsfeld's recent admission that a U.S. raid in Afghanistan mistakenly killed 16 innocent people suggests how grateful Americans should be that their ancestors insisted on the inclusion of a Bill of Rights as a condition of adopting the U.S. Constitution. While the U.S. raiders were convinced that the victims of the raid were members of the Taliban or al-Qaeda, they actually turned out to be anti-Taliban guerrillas loyal to the new U.S.-installed Afghan government.



Acknowledging that the deaths were "unfortunate" and denying prisoners' claims that they were kicked and beaten by U.S. forces, Rumsfeld explained that military action in Afghanistan is sometimes "untidy."



But it would be incorrect to characterize that military action as an unfortunate part of war. Upon the overthrow of the Taliban regime and the installation of a new government friendly to the United States, the U.S. government's role in Afghanistan was converted from one of a war combatant to one of a domestic police force, either as an agent of the new Afghan government or as an independent police force operating with the jurisdiction of a foreign nation.



That is, under the newly installed Afghan regime, the U.S. government's role in seeking suspected terrorists in Afghanistan as part of its "war on terrorism," including the most recent action in which several U.S. servicemen have been killed or wounded, is no different in principle from its role in seeking suspected drug dealers in Peru as part of its "war on drugs."



There is one big difference, however, between operations in which federal police are seeking suspected criminals overseas and those carried out here in the United States: In overseas police operations, U.S. forces are not constrained by the U.S. Constitution and specifically by the due process provisions of the Bill of Rights, as they are when seeking suspected criminals here in the United States.



That lack of constitutional constraint enables U.S. police forces operating overseas to shoot or bomb first and ask questions later when trying to apprehend those they "know" are guilty--such as the innocent missionary and her child who were mistakenly killed in Peru last year as part of the U.S. government's "war on drugs" and the innocent people mistakenly killed in Afghanistan as part of its "war on terrorism."



So while it's true that warfare is sometimes untidy, as Secretary Rumsfeld says it's also true that police work is sometimes untidy, especially when the police are operating outside the constraints our Founders placed on them when they are trying to apprehend suspected criminals.



When our Founders proposed the Constitution (and the new federal government) to the American people in 1787, many people objected that the document did not contain express guarantees of due process of law and protection of fundamental liberties. Those who advocated the adoption of the Constitution responded that there was nothing to fear because the powers of federal officials would be limited to those enumerated in the original document. Since those powers didn't include the power to deprive a person of fundamental liberties or due process of law, their argument went, there was no reason to have an express prohibition on the exercise of such power.



That wasn't good enough for the American people. They understood the nature of government and they knew their history. They knew that the federal government would inevitably attract people who, even with the best of intentions, would run roughshod over their liberties if there were no express constitutional provisions prohibiting them from doing so.



How right our ancestors turned out to be! When we see how our federal police today operate when they are not constrained by the Constitution, we are able to more deeply appreciate the wisdom of our ancestors in insisting on the protections outlined in the Bill of Rights as a condition for permitting the federal government to come into existence.





--------------------CONFEDERATE AMERICAN PRIDE--------------------

Mr. Hornberger is founder and president of The Future of Freedom Foundation in Fairfax, Virginia.

What's So Important About A Declaration Of War?

From Tom Mullen and Liberty Pulse:

What’s So Important About a Declaration of War?




May 7, 2011 By admin 3 Comments









Presidential hopeful Ron Paul insists that the U.S. government shouldn’t go to war without a declaration of war. His son Rand has also taken this position, as have several libertarian-leaning Tea Party candidates. According to the U.S. Constitution, the congress is invested with the power to declare war. These constitutionalists say that this declaration should be a requirement before military action is authorized.



I’m not sure that this is resonating with those that are unfamiliar with what a declaration of war means. For most people, the declaration of war is a formality whereby the president makes sure that it is agreeable to the Congress that he utilizes the military. Some might even go so far as to say it is the president “asking permission” from the Congress to do so. By this reasoning, both Presidents Bush and Obama have complied, especially considering H.J. Res. 114 (October 16, 2002). With that resolution, Congress authorized the president to use military force in the war on terror. What is the difference between that and a declaration of war?



The answer is both intuitive and supported by history. First, a “declaration” has nothing to do with “permission.” Neither is it the same thing as creation or initiation. One can only declare something that already exists. Therefore, a declaration of war does not create a war or initiate a war. A declaration of war is a resolution passed by Congress recognizing that the United States is already at war.



The intent of the declaration of war power is for the government to have an adjudication process for war analogous to a criminal trial for domestic crimes. Evidence must be presented that the nation in question has committed overt acts of war against the United States. The Congress must deliberate on that evidence and then vote on whether or not a state of war exists. The actual declaration of war is analogous to a conviction at a criminal trial. The Congress issues the “verdict” and the president is called upon to employ the military. To wage war without a declaration of war is akin to a lynching: there has been no finding of guilt before force has been employed in response.



Herein lies the difference between H.J. Res. 114 and a declaration of war. In order for President Bush to have obtained a declaration of war against Iraq, he would have had to present his case that Iraq had already committed overt acts of war against the United States. Like a prosecutor, he would have had to convince the “jury” (Congress) that Iraq was guilty – not of “possessing weapons of mass destruction” but of having already aggressed against the United States. Obviously, he would not have been able to do this. In fact, the absence of any overt acts of war by the nations in question is the reason that there were no declarations of war against Korea, Viet Nam, Bosnia, or any other nation that the U.S. government has waged war against since WWII.



The declaration of war power requires the government to obey the law of nature that that no individual or group may initiate force against another. It ensures that before the executive launches a military action against another nation, a separate body deliberates on evidence and agrees that said nation has been an aggressor. Only then is waging war justified.



This interpretation is supported by every declaration of war in U.S. history. Here are two examples.



When James Polk asked Congress to declare war on Mexico in 1846, he said,



“But now, after reiterated menaces, Mexico has passed the boundary of the United States, has invaded our territory and shed American blood upon the American soil. She has proclaimed that hostilities have commenced, and that the two nations are now at war. [emphasis added]



As war exists, and, notwithstanding all our efforts to avoid it, exists by the act of Mexico herself, we are called upon by every consideration of duty and patriotism to vindicate with decision the honor, the rights, and the interests of our country. . . .



In further vindication of our rights and defense of our territory, I invoke the prompt action of Congress to recognize the existence of the war, and to place at the disposition of the Executive the means of prosecuting the war with vigor, and thus hastening the restoration of peace.”[1] [emphasis added]



After reviewing Polk’s request, Congress issued the following declaration of war,



“Whereas, by the act of the Republic of Mexico, a state of war exists between that Government and the United States: Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, That for the purpose of enabling the government of the United States to prosecute said war to a speedy and successful termination…”[2] [emphasis added]



Note the italicized words. The state of war already exists because of the act of the Republic of Mexico.



Americans are probably most familiar with the last occasion upon which the United States declared war. In what may have been the only constitutional act of his entire presidency, President Roosevelt asked Congress to declare war on Japan during this famous speech:



Mr. Vice President, Mr. Speaker, Members of the Senate, and of the House of Representatives:



Yesterday, December 7th, 1941 — a date which will live in infamy — the United States of America was suddenly and deliberately attacked by naval and air forces of the Empire of Japan.



The United States was at peace with that nation and, at the solicitation of Japan, was still in conversation with its government and its emperor looking toward the maintenance of peace in the Pacific…Yesterday, the Japanese government also launched an attack against Malaya. Last night, Japanese forces attacked Hong Kong. Last night, Japanese forces attacked Guam. Last night, Japanese forces attacked the Philippine Islands. Last night, the Japanese attacked Wake Island. And this morning, the Japanese attacked Midway Island. I ask that the Congress declare that since the unprovoked and dastardly attack by Japan on Sunday, December 7th, 1941, a state of war has existed between the United States and the Japanese empire.”[3] [full text of speech here]



In response, Congress resolved,



“Whereas the Imperial Government of Japan has committed unprovoked acts of war against the Government and the people of the United States of America: Therefore be it Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the state of war between the United States and the Imperial Government of Japan which has thus been thrust upon the United States is hereby formally declared; and the President is hereby authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial Government of Japan; and, to bring the conflict to a successful termination, all of the resources of the country are hereby pledged by the Congress of the United States.”[4]



Every other past declaration of war in U.S. history follows exactly this format. The president presents evidence. The Congress votes on the validity of that evidence. It declares that war already exists. It then directs the president to use the military to end the war.



Had this constitutional process been followed, the United States would not have been involved in the wars in Korea, Viet Nam, Iraq, Somalia, Bosnia, or Afghanistan. The declaration of war power ensures that the U.S. government never initiates force, but only uses the military to defend its citizens against an aggressor.



Following the constitution on this point would have kept the United States out of every war since WWII and prevented the U.S. government from running up a large portion of its unresolvable debt. Abiding the law of nature is not only moral, but cost-effective.



During the South Carolina Republican Primary Debate on May 5, Herman Cain articulated his position on the government’s war powers. He stated that, as president, he would not involve the U.S. military in war unless three criteria were met. 1. There was a clear objective. 2. There was a verifiable U.S. interest in question. 3. There was a clear path to victory.



While his comments clearly titillated the audience panel interviewed after the debate, one must recognize that Adolph Hitler’s wars would have been justified on this basis. Are those the only criteria upon which the U.S. government should base its decision to go to war? How about, “They attacked us?” That should be the one and only reason.



Going to war without a declaration of war not only represents aggression against the nation in question, but against every U.S. taxpayer as well. The only argument that can be made for taxing a free people is that taxation is necessary to underwrite protection of their lives, liberties, and properties. The only way that they can be compelled to pay for a war is if a state of war exists between them and another nation. To tax them for a war fought for other reasons, including defending people other than themselves, is to aggress against them. Once the government is allowed to do that, it is time to stop calling the United States “the land of the free.”



Check out Tom Mullen’s book, A Return to Common Sense: Reawakening Liberty in the Inhabitants of America. Right Here!



Home



© Thomas Mullen 2011





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[1] http://www.pbs.org/weta/thewest/resources/archives/two/mexdec.htm





[2] Twenty-Ninth Congress Sess. I Ch. 16 http://www.lawandfreedom.com/site/historical/Mexico1846.pdf





[3] http://www.americanrhetoric.com/speeches/fdrpearlharbor.htm





[4] Seventy-seventh Congress Sess. 1 Ch. 561 http://www.lawandfreedom.com/site/historical/Japan1941.pdf

Ken Cuccinelli: Re-Asserting Federalism In Defense Of Liberty

From Imprimis and ADF:


April 2011









Ken Cuccinelli

Attorney General of Virginia







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Reasserting Federalism in Defense of Liberty





KEN CUCCINELLI was elected the Attorney General of Virginia in November 2009. From 2002-2009 he was a member of the Virginia State Senate. Prior to that he was a partner in the law firm of Cuccinelli and Day, where he specialized in business law. A graduate of the University of Virginia, he has an M.A. in international relations from George Mason University and a J.D. from the George Mason University School of Law and Economics.



The following is adapted from a speech delivered on April 1, 2011, in the “First Principles on First Fridays” lecture series sponsored by Hillsdale College’s Kirby Center for Constitutional Studies and Citizenship in Washington, D.C.













SOME FAVORITE VIRGINIANS OF MINE who inspired and crafted our federal Constitution—Mason, Madison, Jefferson, and Henry—also drafted the Constitution of Virginia. And in the latter, they included a critical statement that said, “No free government, nor the blessings of liberty, can be preserved . . . but by frequent recurrence to fundamental principles.”





Our founders well understood that our liberty could not be preserved without frequently referring back to first principles. But while they pledged their lives, their fortunes, and their sacred honor to defend those principles, we have often taken them for granted, as we have become complacent in thinking that government will take care of every problem.





We have asked government to do more for us, and all the government asks for in return is a little bit more of our liberty. Over the decades, we kept asking. And because the courts and the politicians were all too happy to oblige, regardless of what the Constitution said, we no longer have a federal government of limited powers. We have an overreaching central government—a government that seeks to plan and control virtually every aspect of our lives and our economy, from health care, to energy, to automobile manufacturing, to banking and insurance.





Thankfully, though, in the last several years, people have woken up and are pushing back. With this pushback, we are seeing the idea of federalism reemerge. People want to return to a government of limited, enumerated powers, and an arrangement in which states serve as a check when the federal government oversteps its constitutional bounds.





In the current lawsuits brought by the states over health care and against the EPA, state governments are pushing back and reasserting federalism as the Founders intended them to do. Indeed, I am not aware of a time in history when this many states have sued the federal government to rein in its power: Today, more than half are parties to lawsuits against the new health care act and its individual health insurance mandate.





Virginia was the first state to argue in federal court that the new health care law is unconstitutional. When we brought the suit in March 2010, most media outlets and many legal experts said we stood no chance. One law professor said our argument about constitutionality was, if not frivolous, close to it. Another legal expert said our case relied on a “controversial reading of the Constitution.” Apparently, it is controversial to apply the Constitution as it was written.





But back in December, when a federal judge ruled in Virginia’s favor that the mandate is unconstitutional, assertions that we did not stand a chance faded fast.





Shades of King George III





Let me explain a bit about our lawsuit. Our first legal argument is that the government’s attempt to use the Commerce Clause of the Constitution to mandate the purchase of a private product—in this case, health insurance—goes beyond Congress’s power. The reason there has never been a mandate like this in all of American history is because, up until now, everyone knew Congress lacked the power to impose one.





I often give the example of the colonial period, when the colonists were boycotting British goods while demanding that King George III and Parliament repeal the Stamp Act and the Intolerable Acts. I am sure it was to the king’s dismay, but his own lawyer—the solicitor general—told Parliament that the boycott was legal under British law. In other words, the colonists could not be forced to buy British goods.





Yet in 2010, we had a president and a Congress who believed they could compel Americans to buy a private product even when the king of England, whom we rebelled against, knew he did not have that power. And back then, we were merely subjects!





The federal government has argued in court that not buying health insurance is as much of an economic activity as buying it, and therefore that it can regulate a citizen’s decision not to buy government-approved health insurance under the Commerce Clause. Nonactivity is the same as activity in the governmentÕs argument. Clearly, someone in Washington needs a dictionary.





That same reasoning could be used to force us to buy cars, vegetables, or gym memberships. If Virginia loses this suit and the federal government is allowed to cross this line, Congress will be granted a virtually unlimited power to order us to buy or do anything. It would be the end of federalism—not to mention individual rights—as we have known it for more than 220 years.





There is also a secondary argument made by defenders of the health care act. The Obama administration’s fallback position if it loses its Commerce Clause argument is to say that the fine for not buying government-approved health insurance is not a penalty, but a tax. The administration is asserting this because a tax to pay for a health care scheme would be constitutional under Congress’s taxing authority. We argue in response that the government cannot all of a sudden start calling a penalty a tax to try to make the law legal. In fact, every court that has heard the government’s tax argument has rejected it.





When Congress and President Obama debated the health care law, for political reasons, they repeatedly said that the fine for not buying health insurance was a penalty, not a tax. And indeed, under the law they passed, they structured it as a penalty. So now the administration is both flip-flopping and misrepresenting facts.





We will soon see which arguments the appeals court agrees with, because we will be arguing the case in the U.S. Fourth Circuit Court of Appeals on May 10th. Whatever that ruling, the case will end up in front of the U.S. Supreme Court. That is why we are also running a second track and asking the Supreme Court to skip the Fourth Circuit and take the case directly. We have asked the court for this expedited review because states are already spending huge sums to implement their portions of the health care act, businesses are already making decisions about whether to cut or keep employee health plans, and real health care reform is on hold until the Supreme Court rules. If we do not get this suit resolved as quickly as possible, we impose crippling uncertainty on the states, businesses, individuals, and our entire economy.





Liberty as an Environmental Principle





As bad as the federal health care law is, the economic consequences of what the EPA has in store for us will be equally damaging to our freedom and our economy. Thus the EPA is another front in Virginia’s federalism fight.





In December 2009, the EPA declared that carbon dioxide and other greenhouse gases are pollutants dangerous to public health because they are alleged to cause global warming. This finding gave the agency the immense power to regulate CO2 emissions—and remember, this dangerous pollutant, carbon dioxide, is what we exhale from our bodies every second of every day.





For the ruling, the EPA relied primarily on data from a United Nations global warming report. Emails leaked in 2009 in the Climategate scandal showed that some of the world’s prominent climatologists manipulated data to overstate the effects of carbon dioxide on the environment. Much of the U.N. report relied on that questionable data, and the EPA relied on that report. Since the revelations from the leaked emails became public, some scientists involved in the report have had to back off some of their positions and research. Renowned climate researcher Judith Curry of Georgia Tech, a long-time proponent of the global warming theory, admitted recently that there is no question that data in the U.N. report was misleading, and that “it is obvious that there has been deletion of adverse data” that would work against the theory of rapid global warming in the last century.





Pursuant to this, in February 2010, my office petitioned the EPA to reopen its hearings on greenhouse gases and review new evidence. Instead it ignored our request—in fact, it ignored the law. So we filed a federal lawsuit to force the hearings to be reopened, and we are still awaiting our day in court.





If the EPA is allowed to move forward with its regulation of carbon dioxide, costs to every American household are projected to increase by $3,000 a year due to higher prices for energy, food, clothing, and any other goods that require energy to manufacture or transport. Talk about taxing the poor!





In a document the EPA published on regulating greenhouse gas emissions in cars and light trucks, it admits that its new rules would add about $950 to the price of each new vehicle. And buried deep in the report, the EPA’s own models show that over the next 90 years these regulations would only reduce temperature increases by less than 0.03 degrees Fahrenheit. Lisa Jackson, head of the EPA, in testimony before Congress, called this amount of temperature difference “immeasurable.” But that has not stopped the agency from trying to move the new auto regulations forward.





Greenhouse gas regulations will also cost businesses hundreds of millions of dollars in increased energy costs, and could price several industries out of business or force them overseas, resulting in permanent job losses.





These are serious consequences of decisions made by unelected bureaucrats. All we are asking the EPA to do is to look at all the data, not just the data that supports the pre-conceived views of the people in charge.





For my challenges to these rules and to the federal government, I am accused of being a flat-earther and an enemy of science. Nothing could be further from the truth. I am not only an attorney; I was also an engineer. As a former engineer, I have a certain trust in science: the math, the scientific method, the certainties of the laws of physics, and the objective quest for new answers. But when science gets tainted by politics and money, and facts are set aside in the name of advancing a political agenda, it is no longer science.





And contrary to the image some in the media have created, I do not have a battle with environmental protection. In fact, my office works in close coordination with our Virginia regulatory agencies to enforce environmental laws. I also have seven children who will be on this earth for the better part of this century, and I have a vested interest in seeing that they have clean air, water, and land.





But I also have a vested interest in seeing that my children have the opportunity to get good jobs and achieve at least the same standard of living we have today. That means we have to balance care for our environment with care for our economy.





We also have to recognize that economic growth underwrites environmental protection. Wealthy countries pay for environmental improvement, and healthy economies are critical to it. The only places on earth that have strived for a clean environment share two key characteristics: free people and free markets. Economic success will help deliver environmental improvement far more effectively than any number of forcibly-applied regulations. Yet we are gradually suffocating our free market economy with command-and-control regulations from our federal government.





Freedom in the Balance





With the EPA’s attempts to regulate our lives by regulating the by-products of practically everything we buy and everything we do, and with the federal government’s attempt to assume the power to command us to buy its chosen health insurance, we face some of the most significant and unprecedented erosions of liberty in our lifetimes. And federalism—that tension between state sovereigns and the federal government—was designed for the very purpose of helping to preserve that liberty.





While we can derive some satisfaction from last November’s election results as a backlash against the centralization and growth of raw federal power, we cannot repeat the mistakes of the past where conservative victories were followed by liberal policies. We must ensure that the newly elected officeholders have learned from past mistakes. We must hold the representatives we put into office accountable to first principles, and then demand from them concrete action. For the failure of conservative principles has not been due to the principles themselves, but to the failure to fight for them.





At a time such as this, when principled conservatives do not control the reins of power in Washington, state attorneys general become the first line of defense against federal government overreach. When I ran for Attorney General of Virginia, I said that if the federal government crossed certain lines, I would challenge it. Unfortunately, we have a federal government that is giving us more opportunities to challenge it than I would like. But we are keeping our promise. With fellow Virginians and the American people, we have planted our flag and we are taking a stand. And if we are successful, future generations of Americans will have a chance to enjoy the liberty that has made America the envy of the world.





Success in this fight for federalism is critical, for as Ronald Reagan warned us:





Freedom is never more than one generation away from extinction. We did not pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.



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Nonsense: Analyzing The Heritage Position On Nullification

From The Tenth Amendment Center:

Nonsense – analyzing the Heritage position on nullification










When it comes to nullification, Heritage Foundation writer Matt Spalding has John Kerry syndrome.



He was for it before he was against it.



Or against it while he was for it.



Or something.



In a May 3, article Spalding praises North Dakota for, “wisely cutting out all of that nullification nonsense,” from its nullification bill.



Then he scolds North Dakota for watering down the legislation.



“Such indecisive legislative language leaves the matter in the hands of others (e.g., the Supreme Court), an odd case of timidity given that North Dakota has previously joined twenty-six other states in challenging the constitutionality of Obamacare in federal court. Well, North Dakota, is it unconstitutional or not?”



Sounds like Spalding wants North Dakota to nullify the federal health care law, or in Thomas Jefferson’s words declare that “it is not law, but is altogether void, and of no force.” - in other words, unconstitutional.



Or something.



Later he calls nullification “unconstitutional and unlawful.”



So maybe not.



But Spalding issues a call for action.



“The objective is to change the objectionable law, stop its implementation and challenge it at every possible point.”



Sounds a lot like nullification.



Which he calls “nonsense.”



Confused yet?



Spalding argues from a nationalist perspective. It’s OK for states to resist, but only through the federally approved and prescribed manner, namely working through the court system. He argues that states should take a strong stand and call an act unconstitutional, but they should not go so far as to declare it null and void.



Interestingly, the Virginia legislature discussed this point while debating the Virginia Resolution of 1798 and ultimately decided the words null and void weren’t necessary. To call an unconstitutional act void is redundant.



Following Spalding’s logic, if state protests and court challenges fail, the only remaining remedy lies in voting appropriate federal officials into office who will stack the Supreme Court in a manner guaranteeing the outcome he wants.



That’s worked well for those challenging the constitutionality of Roe v. Wade for the least 38 years.



If the Supremes ultimately rule the health care act constitutional, the states should presumably sit down, shut up and implement the plan, because the Court said so. Apparently nine robed individuals actually possess ultimate and final authority.



Or something.



Spalding lays out his nationalist Hamilton-Marshall-Lincoln view of the United States in the closing paragraphs of his piece.



“The American people—not the federal government or individual states—are the sovereign in our constitutional system. Their sovereign opinions rule through elections expressing their will, at the state level and at the federal level and, if necessary, through the process of constitutional amendment.”



Spalding fundamentally gets it right. The people do stand as the ultimate sovereign. But he stops short and ignores the rest of the story – the entire constitutional ratifying process.



The people first delegated political authority to their particular sovereign states, long before they ever conceived of a United States. In the peace treaty drafted to end the American Revolution, England recognized thirteen sovereign “states”, in essence nations, and listed each one by name.



Later, through the authority already delegated to them by the sovereign people, the sovereign states created the federal system. The states preceded the union, and in fact, created it. A marriage doesn’t spawn a bride and groom. A bride and groom join together to form a marriage – a union.



Each state had to ratify the Constitution before becoming part of the United States. In Spalding’s world, a vote of 60 percent of the people would have created the U.S. and bound every state to the Constitution.



But when the U.S. Congress first convened under the current Constitution, North Carolina and Rhode Island were not represented.



Why?



And if ratification was the act of one American people, as Spalding insists, Rhode Island wouldn’t have had to ratify to be part of the union. At that point, conventions representing 59/60ths of the American people had already ratified. Yet, Rhode Island wasn’t represented in Congress.



Why?



Because they had not yet ratified.



As James Madison states in the General Assembly Report of 1800, “The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity.”



Thus, a very specific delegation of power exists. The people retain ultimate sovereignty. They delegated powers to state governments, creating independent and sovereign states. Those states came together and delegated specific powers to the general government, retaining all the rest. The Tenth Amendment explicitly states the proper balance of powers.



The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.



When placed into the proper context, understanding grants of power and how they flow, nullification makes logical sense. As Thomas Jefferson penned in the Kentucky Resolutions of 1798:



“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”



But Spalding calls this nonsense.



Or something.



Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.

Constitutional Powers The States Have, And The Federal Government Does Not

From The Tenth Amendment Center:

Constitutional Powers the States have, and the Feds do not












Get the New Book Today!



by Rob Natelson



The Constitution enumerates the power of the federal government—but are there authoritative lists of those powers reserved to the states with which the federal government may not interfere?



Yes—many.



During the period 1787-1790, while the public was debating whether to adopt the Constitution, the document’s opponents (“Anti-Federalists”) argued that the Constitution would grant the federal government powers so broad that there would be little left for the states.



Supporters of the Constitution responded that, actually, the powers granted the federal government were “few and defined” (Madison), but the states would retain exclusively all other prerogatives of government. Some added that the states’ sphere was so vast, that enumeration of all exclusive state powers was impossible.



Nevertheless, Anti-Federalists continued to insist on knowing the sorts of things that federal officials would not be able to touch. In response, leading spokesmen for the Constitution began to list such items.



Although some of those spokesmen simply provided a few examples, others offered considerable lists. The lists complemented rather than contradicted each other. Some of the longest lists came from the pen of Tench Coxe, a Philadelphia businessman who had served in the Confederation Congress and, in subsequent years, was to become the Assistant Secretary of the Treasury.



Coxe is little-known today, but his essays were among the most influential with the general public, if not the most influential, of all the pro-Constitution writers. His writings were not as extensive as, say, Hamilton, Madison & Jay’s Federalist, but they were much easier to read and may have been more widely distributed. His representations, and similar ones from other pro-Constitution writers, were central to the entire constitutional bargain.



Coxe wrote under several pen names. The excerpts below from two of his “Freeman” essays illustrate the powers constitutionally denied to the federal government.



For more complete treatment of this subject, see my article, The Enumerated Powers of States. (Since writing that article, I’ve found even more Founding-Era enumerations.)



Here are Coxe’s lists:



From Freeman No. 1:

“It will be found, on a careful examination, that many things, which are indispensibly necessary to the existence and good order of society, cannot be performed by the fœderal government, but will require the agency and powers of the state legislatures or sovereignties, with their various appurtenances and appendages.



“1st. Congress, under all the powers of the proposed constitution, can neither train the militia, nor appoint the officers thereof.



“2dly. They cannot fix the qualifications of electors of representatives, or of the electors of the electors of the President or Vice-President.



“3dly. In case of a vacancy in the senate or the house of representatives, they cannot issue a writ for a new election, nor take any of the measures necessary to obtain one.



“4thly. They cannot appoint a judge, constitute a court, or in any other way interfere in determining offences against the criminal law of the states, nor can they in any way interfere in the determinations of civil causes between citizens of the same state, which will be innumerable and highly important.



“5thly. They cannot elect a President, a Vice-President, a Senator, or a fœderal representative, without all of which their own government must remain suspended, and universal Anarchy must ensue.



“6thly. They cannot determine the place of chusing senators, because that would be derogatory to the sovereignty of the state legislatures, who are to elect them.



“7thly. They cannot enact laws for the inspection of the produce of the country, a matter of the utmost importance to the commerce of the several states, and the honor of the whole.



“8thly. They cannot appoint or commission any state officer, legislative, executive or judicial.



“9thly. They cannot interfere with the opening of rivers and canals; the making or regulation of roads, except post roads; building bridges; erecting ferries; establishment of state seminaries of learning; libraries; literary, religious, trading or manufacturing societies; erecting or regulating the police of cities, towns or boroughs; creating new state offices; building light houses, public wharves, county gaols, markets, or other public buildings; making sale of state lands, and other state property; receiving or appropriating the incomes of state buildings and property; executing the state laws; altering the criminal law; nor can they do any other matter or thing appertaining to the internal affairs of any state, whether legislative, executive or judicial, civil or ecclesiastical.



“10thly. They cannot interfere with, alter or amend the constitution of any state, which, it is admitted, now is, and, from time to time, will be more or less necessary in most of them.”



From Freeman No. 2:

“First, then, each state can appoint every officer of its own militia, and can train the same, by which it will be sure of a powerful military support attached to, and even part of itself, wherein no citizen of any other state can be a private centinel, much less have influence or command.



“2dly. Every regulation relating to religion, or the property of religious bodies, must be made by the state governments, since no powers affecting those points are contained in the constitution.



“3dly. The state legislatures and constitutions must determine the qualifications of the electors for both branches of the fœderal government; and here let us remember to adhere firmly within our respective commonwealths to genuine republican principles. Wisdom, on this point which lies entirely in our hands, will pervade the whole system, and will be a never failing antidote to aristocracy, oligarchy and monarchy.



“4thly. Regulating the law of descents [inheritance], and forbidding the entail of landed estates, are exclusively in the power of the state legislatures. . . .



“5thly. The elections of the President, Vice President, Senators and Representatives, are exclusively in the hands of the states, even as to filling vacancies. The smallest interference of Congress is not permitted, either in prescribing the qualifications of electors, or in determining what persons may or may not be elected.



“The clause which enables the fœderal legislature to make regulations on this head, permits them only to say at what time in the two years the house of representatives shall be chosen, at what time in the six years the Senate shall be chosen, and at what time in the four years the President shall be elected; but these elections, by other provisions in the constitution, must take place every two, four and six years, as is declared in the several cases respectively.



“6thly. The states elect, appoint and commission all their own officers, without any possible interference of the fœderal government.



“7thly. The states can alter and amend their several constitutions, provided they do not make them aristocratical, oligarchic or monarchical—for the fœderal constitution restrains them from any alterations that are not really republican. That is, the sovereignty of the people is never to be infringed or destroyed.



“8thly. The states have the power to erect corporations for literary, religious, commercial, or other purposes, which the fœderal government cannot prevent.



“9thly. Every state can always give its dissent to fœderal bills, as each has a vote in the Senate secured by the constitution. Hence it appears, that the state governments are not only intended to remain in force within their respective jurisdictions, but they are always to be known to, and have their voices, as states, in the fœderal councils.



“10thly. The states not only elect all their own officers, but they have a check, by their delegates to the Senate, on the appointment of all fœderal officers.



“11thly. The states are to hold separate territorial rights, and the domestic jurisdiction thereof, exclusively of any interference of the fœderal government.



“12thly. The states will regulate and administer the criminal law, exclusively of Congress, so far as it regards mala in se, or real crimes; such as murder, robbery, &c. They will also have a certain and large part of the jurisdiction, with respect to mala prohibita, or matters which are forbidden from political considerations, though not in themselves immoral; such as unlicenced public houses, nuisances, and many other things of the like nature.



“13thly. The states are to determine all the innumerable disputes about property lying within their respective territories between their own citizens, such as titles and boundaries of lands, debts by assumption, note, bond, or account, mercantile contracts, &c. none of which can ever be cognizable by any department of the fœderal government.



“14thly. The several states can create corporations civil and religious; prohibit or impose duties on the importation of slaves into their own ports; establish seminaries of learning; erect boroughs, cities and counties; promote and establish manufactures; open roads; clear rivers; cut canals; regulate descents and marriages; licence taverns; alter the criminal law; constitute new courts and offices; establish ferries; erect public buildings; sell, lease and appropriate the proceeds and rents of their lands, and of every other species of state property; establish poor houses, hospitals, and houses of employment; regulate the police; and many other things of the utmost importance to the happiness of their respective citizens. In short, besides the particulars enumerated, every thing of a domestic nature must or can be done by them.



“In addition to this enumeration of the powers and duties of the state governments, we shall find many other instances under the constitution, which require or imply the existence or continuance of the sovereignty and severalty of the states.—The following are some of them:—



“All process against criminals and many other law proceedings will be brought by and run in the name of that commonwealth, in which the offence or event has taken place.



“The senate will be representatives of the several state sovereignties.



“Every state must send its own citizens to the senate and to the house of representatives. No man can go thither, but from the state of which he is a complete citizen, and to which, if they choose, he shall be sworn to be faithful.



“No state shall on any pretence be without an equal voice in the senate.



“Any state may repel invasions or commence a war under emergent circumstances, without waiting for the consent of Congress.



“The electors of the President and Vice-President must not nominate more than one person of the state to which they belong: so careful is the fœderal constitution to preserve the rights of the states.



“In case of an equality of votes in the election of the President or Vice-President, a casting voice is given to the states from a due attention to their sovereignty in appointing the ostensible head of the fœderal government.



….



“Two thirds of the states in the proposed confederacy can call a convention.



“Three fourths of those states can alter the constitution.



“From this examination of the proposed constitution for the United States, I trust it will appear, that though there are some parts of it, which, taken separately, look a little like consolidation, yet there are very many others of a nature, which proves, that no such thing was intended, and that it cannot ever take place.”



In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

Montana SB 423: Utter Dis-Regard For The Power Of The Sovereign [People]

From Liberty Defense League:

Montana SB 423: Utter Disregard for the Power of the Sovereign






Sat, May 7, 2011



Political Action





by Attorney Timothy Baldwin

(approx. 850 words)



Montana Senate Bill 423 (2011) was passed by the house and Senate this session. The legislature submitted the same to Governor Brian Schweitzer reportedly on May 3, 2011. Schweitzer has 10 days from that date to veto the bill. If he does not, it becomes law by default. He has already indicated he will not veto the bill thus allowing it to become law. Some provisions are to become effective immediately and the remaining on July 1, 2011.







Despite the legislators’ attempt to expressly repeal Montana’s Medical Marijuana Act, Section 50-46, et. seq., MCA (the Act), which was vetoed by Schweitzer, they were able to paint the horse a different color for the bill not to be vetoed. Disguised as an amendment to the Act, SB423 actually repeals every section of the Act: “REPEALING SECTIONS 50-46-101, 50-46-102, 50-46-103, 50-46-201, 50-46-202, 50-46-205, 50-46-206, 50-46-207, AND 50-46-210, MCA.” Is form greater than substance here?



SB 423 will most likely become law because of the legislature’s arrogance or indifference and the governor’s unwillingness to uphold the constitutional authority of the people to govern themselves. This is an atrocity committed upon the sovereign body of Montana.



The Act was passed by a citizen’s initiative in 2004 pursuant to Montana’s constitution. As reflected in Montana’s constitution, the political power of the state rests only in the people of Montana. Mont. Const., Article 2, Section 1 (1972) states, “All political power is vested in and derived from the people. All government of right originates with the people, is founded upon their will only, and is instituted solely for the good of the whole.”



The people are the principal and the legislators are the agent. The legislators can do no more than what the people grant. Evidently, the legislators and governor believe the people of Montana have granted them power of repealing a law the people have directly enacted. Principally, such a belief is flawed and inconsiderate of our constitutional structure. Mont. Const., Article 5, Section 1 (1972) states, “The legislative power is vested in a legislature consisting of a senate and a house of representatives. The people reserve to themselves the powers of initiative and referendum” (emphasis added).



In direct contrast to the U.S. Constitution (which delegates to the federal government only what is expressly granted by the States), a State constitution grants to the legislatures power to govern in whatever manner comports to the purpose of the constitution except those rights and powers retained by the people. Put differently, in the federal constitution, everything is retained that is not expressly granted; and in a state constitution, everything is granted, that is not retained (and does not plainly contradict the laws of Nature). Every standard of review regarding the people’s reserved power must be strictly construed against the government and in favor of the people.



Clearly, Article 5, Section 1 recognizes the reserved power of the people to pass laws by initiative. All other legislative power is vested in the legislative body. The people did not transfer power to the legislature the power to repeal or alter what the people have passed through initiative. We expressly reserved that to ourselves.



To hold otherwise is to create quite a political absurdity and contradiction. If the legislature were to have the power to undo what the ultimate sovereign power of the State has done, then Mont. Const., Article 2, Section 1 is truly meaningless and the power of the citizens of Montana becomes non-effectual. Further, it would dis-incentivize all attempts by the people to create laws by their initiative, knowing that the law they took countless time and money preparing and executing could be overturned in the legislature. Indeed, getting a law passed by citizen initiative is a daunting political task and takes serious determination.



The issue surrounding SB423 is not about marijuana. If you do not like marijuana, get over your biases for a moment and recognize the real issue. Remember, if the legislature can do this regarding the medical marijuana act, they can repeal your pet-law. The issue is about the will of the sovereign body of Montana, the power to govern ourselves and the limitation of government.



The justification of passing SB423 I have heard from many 2011 legislators is “the will of the people has changed; a majority of Montanans do not want a medical marijuana act in this state anymore.” I find this to be disingenuous and a shield for doing legally what the constitution prohibits politically.



The source of this law came from the people—the principals and sovereigns of Montana. If the legislators truly believed that Montanans did not want a medical marijuana act, then they should draft a bill to that effect and submit it to the people for a ballot vote. Send the decision back to the source of its creation—the people. I did not hear of one legislator who even suggested such a means of the Act’s repeal.



Even if it is arguable that the legislature has the power to repeal a citizens’ initiative, the statesman should have moved the legislative body to send the repeal bill to the people for their vote.



They may not realize it, but the legislature and governor have ticked off many thousands of people, those living in Montana and those watching us—and rightfully so.