Where are Today’s Sons of Liberty?

We talk a lot today about how the Constitution no longer means what it used to and it no longer protects individual freedom and liberty as it used to. We say this because a government of limited and defined powers has steadily and without apology become a government of broad and undefined powers.  When a state should happen to assert its sovereignty and challenge the usurpation of power, the federal government issues a letter threatening to take them to court. The government knows that what the Constitution won’t allow it to do, the courts will.

But the situation is far more serious than what we thought.  Yes, our Constitution is and has been under attack. And yes, the relationship between the individual and the government has been fundamentally altered. But the document that perhaps may be even more significant to us as Americans, the Declaration of Independence, is also under attack. The attack, if we want to be intellectually honest, started with the man the government touts as the greatest American president Abraham Lincoln.

Just as the Constitution was fundamentally transformed as the American people slept and as they became virtual strangers to their own history and heritage, the Declaration has been eroded because of the same reason.

John Adams once said: “A constitution of government once changed from freedom, can never be restored. Liberty, once lost, is lost forever.”  The American people don’t know how close they are to losing the very gifts they have taken for granted for so long.  We here today will enjoy the last remnants of freedom, but through our actions, our neglect, our spite, and our ignorance we may condemn our children and grandchildren to repurchase it, perhaps with their lives. It may be too late.

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Why So Much Faith in Supreme Court Justices?

A quick reading of the decision in Dred Scott v. Sanford (1857) should cause any reasonable person to question the assumption of judicial infallibility, and the wisdom of granting judges the definitive and final say in all cases. In essence, the Supreme Court declared black people inferior and that even free blacks were not citizens under the Constitution. In the majority opinion, Chief Justice Roger Taney argued that the framers of the Constitution held blacks were, “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect.”

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Smashing Myths: Southern States and Nullification

Slavery was a morally corrupt and abhorrent institution that should have never existed.

No question. No debate.

Now that we have that out of the way, let’s talk about nullification’s history in the Southern states prior to the Civil War.

Over time, a Paul Bunyan type myth has grown suggesting that the Southern states were strong advocates of nullification as a means to protect their institution of slavery. In 2011, Rachel Maddow presented a news segment on her show about nullification. She stated that John C. Calhoun was a proponent of both slavery and nullification, more than implying the two are linked.

If that was the case, it would be pretty gross.

But it’s not.

Southern states never attempted to nullify anything in defense of slavery.

There is no dispute that Calhoun defended slavery. He was a slaver. In that sense, he’s a reprehensible character. And he also advocated for nullification.

However, Calhoun didn’t suggest using nullification as a means to maintain slavery. During the Nullification Crisis, Calhoun advocated the nullification doctrine as a means to protect Southern states against high tariffs that were impacting the Southern exports. Again, he advocated nullification against tariffs not for the promotion of slavery. During her televised segment, Maddow never mentioned the word, “tariffs.” Not once.

To demonize nullification because a slaver advocated the principle for something unrelated to slavery is nothing more than a textbook ad hominem attack.

If you bought into that false narrative, you should be forgiven. After all, conventional wisdom links the two. But now you know the truth. And if your mistaken perception that nullification was all about slavery led you to abhor the doctrine, the actual history of nullification should lead you to embrace the principles with abandon!

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Language Should Be For Communication, Not Control

The people we elect and the ones who they appoint cannot be allowed to redefine the meanings of the very words that are intended to limit their power. If they are, then language becomes their tool for controlling us. If they have this tool, they will use it. There is only one answer. The language of the Constitution means what it meant when it was ratified. Any attempt to alter the meaning of the language of the Constitution is, fundamentally, a power grab which must be rejected. If the government really believes it needs a new power, the Congress can submit a Constitutional amendment to the states for ratification. There is no other Constitutionally valid method for the federal government to increase its power and the states and the people must learn to insist that the Constitution be followed – to the letter.

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Left-Wingers Attack; I Yawn

Apparently there’s been a series against me over at the Daily Kos by a left-liberal lawyer. I no longer pay attention to left-wing attacks. It’s the same arguments every time. They pretend I haven’t answered them. I have. They idiotically call me a “neo-Confederate” (have they really not seen the zombie video, or are they trying to caricature themselves?).

The most recent one is only slightly different. For some reason, central to his argument is his claim that Thomas Jefferson was an Antifederalist. He was not. Jefferson was a supporter of the Constitution, though he wanted term limits for the president, as well as a Bill of Rights. This is all explained in a basic text like David N. Mayer’s The Constitutional Thought of Thomas Jefferson.

I am then accused of “mendacity” (because I stand to gain a lot by lying about nullification!) because I do not note that nine states spoke out against the Virginia and Kentucky Resolutions of 1798, which laid out the doctrine of state nullification. By my count, seven states issued statements against the Resolutions, and I have discussed them repeatedly, both in my book (which the author has not read, naturally) and online.

I am “mendacious” for leaving this out, even though I didn’t leave it out, but my critic isabsolutely not mendacious for himself leaving out the reason that six of those seven states opposed Virginia and Kentucky: they favored the Sedition Act, and the principle that journalists should be thrown in jail for criticizing the president. Oops!

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Answering to a Higher Law

We spend a great deal of time defending the principle of state nullification of unconstitutional acts here at the Tenth Amendment Center. The philosophical basis for state nullification rests on delegation of powers and the structure of the system created by the Constitution. But other forms of nullification exist, finding their legitimacy in even higher authorities.

At the insistence of southern delegations, especially South Carolina’s, the final version of the U.S. Constitution included a fugitive slave clause in Article IV Sec. 2

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, But shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

Granville Sharp was not pleased.

Sharp represented James Somersett in a famous English case that led to the conclusion that slavery was unsupported by existing law in England. In his ruling, Lord Mansfield essentially argued slavery was incompatible with common law.

The state of slavery is of such a nature that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasions, and time itself from whence it was created, is erased from memory. It is so odious, that nothing can be suffered to support it, but positive law. Whatever inconveniences, therefore, may follow from the decision, I cannot say this case is allowed or approved by the law of England; and therefore the black must be discharged.

When Sharp learned of the fugitive slave clause in the Constitution, he fired off a letter to Benjamin Franklin saying he was “sincerely grieved.” He went on to declare the constitutional clause was “null and void…It would be even a crime to regard [it] as Law.”

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Rethinking the role of governments

The following was published as a letter to the editor in The Times-News of Burlington, NC

With the hype of this subject coming out almost daily it’s good to dispel some myths.

In 1798 nullification was born as a result of The Alien and Sedition Acts passed by the Federalists and John Adams. In summary, these acts meant people could not criticize the federal government. Yes, in the early U.S. journalists and others were arrested and jailed under these acts. The acts also stopped French immigrants from coming in while deporting others who were here.

At the time, Vice President Thomas Jefferson (back then the opposing party could be the vice president) and Gov. James Madison authored The Virginia and Kentucky Resolutions to oppose these acts and they were passed by the respective state governments. Nullification was also used against Federal Conscription during the War of 1812. The most important example of nullification is how Northern states used it in the fight against slavery and Federal Fugitive Slave Act in the 1840s and 1850s. Nullification has never been used to propagate slavery. It was however wrongly used in an effort to stop integration of schools in the 1960s, and shame on those who did it.

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Nullification Returns to Wisconsin

By Phil Zimmermann, originally posted at Wisconsin Republic

The Fugitive Slave Act of 1850 required citizens of the free states to capture and return escaped slaves. Wisconsin lead the charge against this despicable federal legislation through nullification and widespread non-compliance.

The Wisconsin Legislature passed a nullification resolution declaring the Fugitive Slave Act to be “without authority, void, and of no force.” The Wisconsin courts as well declined to prosecute Wisconsinites who refused to comply with the law.

Justice Smith of the Wisconsin Supreme Court said in 1854:

But the real danger to the union consists, not so much in resistance to laws constitutionally enacted, as in acquiescence in measures which violate the constitution.  It is much safer to resist unauthorized and unconstitutional power, at its very commencement, when it can be done by constitutional means, than to wait until the evil is so deeply and firmly rooted that the only remedy is revolution.

Today the Federal government again threatens civil rights. The Patriot Act and the Orwellian NSA surveillance state have all but destroyed the 4th amendment. The IRS and DOJ targeting of political groups and journalists seems bent on destroying the 1st amendment as well.

Against this backdrop Wisconsin Rep. Michael Schraa has introduced legislation to address the significant efforts being made to limit our ability to protect ourselves and our families, as guaranteed by the 2nd amendment.

“This bill, the Firearms Freedom Act, sends a simple message to the federal government,” said Schraa (R – Oshkosh).  “Wisconsin will not help you take away our second amendment rights.”

Schraa’s legislation targets the overzealous interpretation of the interstate commerce clause that the federal government uses to claim it can regulate all commerce. The legislation makes it clear that a firearm that is manufactured and housed in Wisconsin cannot be considered part of interstate commerce.

This clearly has implications that extend beyond firearms.

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Crossing the Rubicon?

In 49 B.C., Julius Caesar was leading his army and came upon the Rubicon River. The Provence  on the opposite side of the river had a law that said that no general could lead armies in that province. All armies had to be disbanded and the generals could not be in front. The penalty for disobeying this law was death to the general and death to the soldiers.

Julius Caesar crossed the Rubicon River leading his army and said, “The die is cast.” – He fought and defeated the local forces and that law was then abolished. Since that time, the phrase” crossing the Rubicon” survived and represents any situation in which there is no turning back. Whatever consequences arise from this decision are accepted.

We citizens of these United States  have “crossed the Rubicon.” We are confronted daily with a federal government that is overreaching and intrusive. Their voracious appetite for power and control has encroached on our very liberty and freedom.

With a heavy hand and an abuse of power, the federal government has sought to run roughshod over the sovereignty of our states, and has insisted on making laws, rules and regulations severely curtailing the freedom, liberty and rights enjoyed by this citizenry.

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