Author Archive | Benjamin Gross

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 10^th 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. Continue Reading →

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 Continue Reading →

Today Pennsylvania became the 13th state in the last three weeks to introduce legislation nullifying federal encroachments of firearms ownership.  State Representative Daryl Metcalfe modeled the Right to Bear Arms Protection Act (House Bill 357) after legislation recently introduced in Wyoming and Texas.

Highlights of House Bill 357 (yep, that’s 357) include:

• prohibitions against enforcement of any new federal registration, restriction or prohibition requirement for privately owned firearms, magazines and ammunition.
• the requirement that the state of Pennsylvania, including the Office of Attorney General, to intercede on behalf of Commonwealth citizens against any federal attempt to register, restrict or ban the purchase or ownership of firearms and firearms accessories which are currently legal products.
• felony charges against anyone – including federal agents who try to enforce any type of gun control restriction within state borders.

“Passage of my legislation will send the message that there will never be additional gun control, anywhere in Pennsylvania,” said Metcalfe.  “Whether by White House executive orders, congressional fiat, or judicial activism, we will never allow the left to benefit from the wicked acts of murderers in order advance their senseless gun-grabbing agenda which would only succeed in replacing one of our most sacred personal liberties with the chains of government tyranny.” Continue Reading →

Earlier today, U.S. Senator Tim Kaine observed to CNN’s Soledad O’Brien that “Nullification is a code word.”

“For what?” inquired O’Brien.

Sen. Kaine, aggrieved that his colleague Senator Rand Paul used the “N” word in the recent gun control debate, responded: “It’s a states right argument that gets used in times of great controversy. The President is acting by executive power that is legally conferred on him. And as you pointed out, you went over these executive orders. They’re basic, common sense things.”

Indeed, it is precisely the states’ rights argument used by two heaps more famous Virginians, Thomas Jefferson and James Madison, when they spat in the eye of President John Adams and his hyper-partisan, First Amendment-trampling Alien and Sedition Acts. And during the time of that other great controversy, i.e., slavery, the “N” word was used by northern states when they interposed against the federal Fugitive Slave Acts of 1850.

You see, Sen. Kaine, nullification, if a code word at all, is a code word for freedom. Continue Reading →