Preserving Liberty: What Actually Can be Done

On Friday, August 9th, I was a guest on the Pennsylvania Republican Liberty Caucus’s Speak Out program hosted by Lois Kaneshiki to chat about the Tenth Amendment Center, state nullification and Pennsylvania’s anti-NDAA bill (SB 999). We discussed the historical precedents for nullification, the Tenth Amendment Center’s legislative agenda, the constitutional problems with Sections 1021…

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Nullification Flames Spreading

Last week, I sat on a panel flanked by a Commonwealth Foundation activist discussing Obamacare expansion in Pennsylvania and the co-author of Glenn Beck’s novel Agenda 21 discussing one-world government creepiness.

The state nullification angle – mine – was enthusiastically embraced by the group, most of whom never heard of Tom Woods, the Tenth Amendment Center or the Jeffersonian view asserting states stand as the final arbiter of the limits of federal constitutional authority.

Later, the larger group broke into smaller ‘action’ groups – Agenda 21, Obamacare and Second Amendment preservation.  I was assigned to the latter group, and we began our activist training focusing on lobbying, educating and refuting. On the subject of refuting, we walked through the common objections to state nullification. (supremacy clause, neo-confederatism, racism, etc.) These folks – just introduced to the topic of nullification – were already brainstorming on how to spread their knowledge.

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Pennsylvania Bill Would Nullify NDAA “Indefinite Detention”

In another David flings a rock in Goliath’s eye moment, Pennsylvania state Senator Mike Folmer introduced the Liberty Preservation Act (SB999) last week.

The bill would prohibit state employees from cooperating with federal enforcement of sections 1021 and 1022 of the National Defense Authorization Act of 2012 (NDAA) that purport to allow arrest and detention without charge or trial on U.S. soil.

No employee shall provide material support or participate in any way with the implementation of sections 1021 and 1022 of the National Defense Authorization Act for Fiscal Year 2012, as amended, (Public Law 112-81, 125 Stat. 1298) within the boundaries of this Commonwealth.

SB999 sets criminal penalties for state employees – including law enforcement personnel – who aid or abet federal agents or agencies attempting to arrest or detain citizens pursuant to the NDAA within the Commonwealth.  Pennsylvania now joins 18 other states with pending or enacted legislation that interposes sovereign state authority between their citizens and the growing authoritarianism of central government.

“I believe the indefinite detention of American citizens without providing them due process of law is unconstitutional and illegal, including under the NDAA. This is why I introduced legislation to prohibit state, county, and local agencies from complying with NDAA:  to protect Pennsylvanians’ due process rights,” Folmer said, affirming his duty to uphold the Constitution against its unchecked transgression by the federal government.

Think it can’t happen here?  It already has.

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Nothing to See Here, Says the Mainstream Right?

Last week we received a few heckles for posting a Facebook meme of George Bush signing the Patriot Act. We stand by our intent – Republicans and Democrats, George Bush and Barack Obama – are sell-outs and equally culpable for the security-surveillance industrial complex of whose scary details were leaked to the press last week.

If you are the sporting type and keeping score, the Democrat-Republican Party is beating the Constitution by six touchdowns going into the fourth quarter. These dudes are on the same team, even if it took you half the game to figure it out. Behind the inexorable expansion of the state, the Right and the Left often stand as one.

Take, for instance, Rich Galen, a neo-con who blogs at Townhall.com, writing today about NSA-whistle blower Edward Snowden:

As a taxpayer, I’m not paying you to look out after my Fourth Amendment rights. I’m paying you to do whatever job you were hired to do, and if you find that job too ethically distasteful, then you should quit.

But keep your mouth shut.

Galen suggests a long federal prison sentence would be just deserts for Snowden for exposing a creepy, out-of-control national government sifting warrantlessly through our personal emails and internet searches. After all, Galen declares, he is a 66-year-old guy with nothing to hide.

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A Libertarian Case for the Department of Education

Last week the Rooney-Blansten amendment requiring the federal Common Core curriculum to devote equal time to Republican presidents was narrowly defeated in the U.S. Senate, despite a RealClearPolitics poll showing 87.8921% of the public supported the idea.

I’m a libertarian who writes frequently for the Tenth Amendment Center, and years ago I donated to the Cato Institute. But despite these impeccable credentials, I support a yeasty view of the Constitution and believe it politically expedient to pass federal legislation that ensures Republican politicians receive the same favorable treatment as Franklin D. Roosevelt, Bill Clinton and Barack Obama in any national civics curriculum approved by the federal Department of Education.

Anti-federal supremacists need to refine their priorities, with an eye to keeping moderate Republicans in office. The focus on “federal involvement in education” is wrong-headed and counter-productive, and overlooks the legislatively-mandated benefit (explicitly affirmed in Rooney-Blansten) of having all public schools teach no fewer than 15 positive things each about Richard Nixon, the two Bushes, and even failed Republican presidential candidate Mitt Romney.

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Terrorizing the Constitution in Boston and Elsewhere

I was several blocks away at a bar when the bombs exploded, having finished my fourth Boston Marathon about an hour earlier. I was fatigued but enjoying the table fellowship of my fellow runners, telling stories, drinking Guinness and thinking all was right in the world. The bombs, by all accounts cowardly planted by two Chechen brothers, tore through that serenity and replaced it with tears, anger and fear.

Two days have now passed since the brothers were neutralized, one dead, the other hospitalized in serious condition. The media gave us a morbidly fascinating window to the action, a real life Running Man, where the bad guys were pursued in house-to-house searches with military precision courtesy of the billions in tax dollars that perfected the security-surveillance state we call America. Michel Foucalt was presciently right; we are living in a Panopticon.

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The Keystone(d) State?

Last week Pennsylvania State Senator Daylin Leach introduced Senate Bill No. 528, known as the “Regulate Marijuana Act,” which decriminalizes the sale and use of marijuana for persons 21 years of age and older. Citing the efficient use of law enforcement resources, the potential tax bonanza and individual freedom, SB 528 ends criminal penalties and prosecution of cannabis users and small backyard growers, saving taxpayers tens of millions of dollars per year, according to Leach.

“Lives are being destroyed by prohibition,” observed Leach, making the case that the health and safety of Pennsylvania would be better served if marijuana were regulated in a manner similar to alcohol.

Leach’s decriminalization bill is actively backed by the non-partisan Students for Sensible Drug Policy, Pennsylvania Veterans for Marijuana Legalization and cleverly-named Pennsylvania Hempland Security.

The bill is not without its flaws. Most detrimentally SB 528 gives the state Liquor Control Board a near monopoly on the wholesale and retail distribution of marijuana, in the manner of Pennsylvania’s much maligned government retail sales of wine and spirits. Still, the bill attempts to reclaim state sovereignty against unconstitutional federal regulation, which is a welcome assertion of state rights secured by the Tenth Amendment.

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The ABCs of Nullifying the DOE

Among the many Fs the federal government earns for constitutional fidelity, a failing grade is conspicuously assigned to its Department of Education. I doubt even the most jaded federal supremacist can avoid the twinge of guilt for flambéing the 10th Amendment through the nationalization of that most local of all civic concerns, the public school.

While doubtless some regard Congressmen as experts in finger painting, cursive writing, quadratic equations, kickball and spelling, our Founding Fathers did not. The positive right to a free public education found in each of the state constitutions is unambiguously absent from the limited powers granted by the Constitution to the federal government. A federal government was set up to prevent trade wars among the states and coordinate a common defense against bullying by the grandiose Europeans. It was never designed to apportion salt in school cafeterias (see “Nutrition Standards in the National School Lunch and School Breakfast Programs”, 4088 Federal Register, Vol. 77, No. 17, Thursday, January 26, 2012, Rules and Regulations) or to promote the Keynesian viewpoints of the Federal Reserve Board (see Common Core Standards, Appendix B, p. 177).

Unfortunately, the Constitution is not self-executing. In other words, it cannot be counted on to break out of its glass tomb at the National Archives, race down Pennsylvania Avenue toward the Capitol, and arrest Harry Reid, Nancy Pelosi and John Boehner for high crimes against liberty. Instead, that task, the task of enforcing the limits of the Constitution, was left to the sovereigns, i.e., the people, with help from their respective agents, the states. Enforcing those limits, as fans of the Tenth Amendment Center know, is called nullification.

Nullifying federal education laws and regulations is much easier than you think. I’ll go hardest to easiest, but all paths can get you there.

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Pennsylvania Memo: HB357, Right to Bear Arms Protection Act

Memo: HOUSE BILL 357, RIGHT TO BEAR ARMS PROTECTION ACT

TO: PENNSYLVANIA VOTERS
FROM: BENJAMIN GROSS, LEGAL DIRECTOR, PENNSYLVANIA TENTH AMENDMENT CENTER
DATE: MARCH 1, 2013
SUBJECT: HOUSE BILL 357, RIGHT TO BEAR ARMS PROTECTION ACT


In mid-January, State Representative Daryl Metcalfe proposed the Right to Bear Arms Protection Act (HB 357) which nullifies all federal firearms laws adopted after December 31, 2012.  HB 357, which provides criminal penalties for attempted enforcement of unconstitutional gun laws in Pennsylvania, amassed 69 co-sponsors in the last month.

Despite the popularity of HB 357, a number of Republican and Democratic state legislators have refused to join as cosponsors, invariably citing the Supremacy Clause for the proposition that federal laws are supreme and only federal courts can say otherwise.  The Supremacy Clause is one of the more abused and misrepresented clauses in the Constitution.   Only laws “which shall be made in Pursuance thereof” are supreme, not any old laws passed by Congress. Critics, including those who teach constitutional law in our nation’s universities often repeat this common but nonsensical viewpoint, given that its logical conclusion makes the federal government’s discretion the only limit of its powers.  No State would have ratified a Constitution wherein Congress could pass unconstitutional laws that were then upheld by its own judicial branch.

As Alexander Hamilton explained at New York’s ratifying convention

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