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Surprise: Law Professor Misinterprets Supremacy Clause

By on January 26, 2013 in Commentary, Constitution, Delegated Powers, Education, Federalism, Founding Principles, Government, Law, Nullification, State Sovereignty 20

Have you ever read an article that you were not sure what stance the author takes on the subject but presents both sides of the argument at once? I had the distinguished experience recently when I was reading the article titled “Sheriffs, State Lawmakers Push Back on Gun Control” on the Newsmax website (see: http://www.newsmax.com/Newsfront/Gun-Control-Pushback/2013/01/17/id/471825). It was a little confusing until I got about half way through it and read a quote by Sam Kamin.

Sam is a constitutional law professor at the University of Denver. One would think that if someone was a law professor that they would actually know and understand the law. Or in this case, a constitutional law professor – who should then know and understand the constitution. It is highly unfortunate when people like Sam misspeak about a subject. Their title gives them some credibility so people think what they say is true because they are supposedly an “expert”. But, when they make a mistake it is still a mistake.

The Supremacy Clause of Article VI, Clause 2 reads:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

Sam makes the comment that state legislatures can pass any laws they want but that the Supremacy Clause of the Constitution makes such actions unconstitutional. He further states that when there is a conflict between state and federal law, the federal government is supreme. Nothing could be farther from the truth. His blanket statement implies that the state laws are not necessary and state governments are not necessary because the federal government and its laws are supreme. Continue Reading →

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Pennsylvania Town Working To Nullify Federal Gun Control

By on January 9, 2013 in Big Brother, Big Government, Government, Law, Nullification 12

With the Obama administration winning a second term and gun control publicly on the national agenda, more and more people are standing up at the state and local levels to protect Constitutional freedoms. This is exactly what is occurring in the small town of Gilberton, Pennsylvania.

Chief of Police Mark Kessler will propose a ’2nd Amendment Preservation’ Ordinance during the January 24, 2013 meeting of city council. According to the text of the ordinance, it will be ‘nullifying all federal, state or local acts in violation of the 2nd Amendment to the Constitution of the United States along with section 21 Right to Bear Arms of the Pennsylvania constitution.’

The ordinance continues on with some strong words for the authoritarians in Washington D.C. who wish to trample upon the Constitutional rights of Americans saying, “It shall be the duty of the Governing body of Gilberton Borough and within all of its boundaries within the State of Pennsylvania to adopt and enact any and all measures as may be necessary to prevent the enforcement of any federal, state or local acts, laws, orders, rules, or regulations in violation of the 2nd Amendment to the Constitution of the United States along with section 21 of the Pennsylvania Constitution or any violation of this ordinance.” You can read the rest of the bill by clicking HERE.

Police Chief Kessler says that he intends for this bill to send a message to the Federal Government that the spirit of resistance is alive and well within the American people Continue Reading →

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Federalism and the 10th: The State Reclamation Begins

By on December 14, 2012 in Activism, Big Government, Constitution, Delegated Powers, Federalism, Founding Fathers, Founding Principles, Law, Nullification, Sovereignty Movement, State Sovereignty, Tenthers 3

The state governments are now beginning in earnest to do something about the encroaching federal government. Way back in 1994 when the “Republican Revolution” was taking place in Congress the Republican Governors Association (RGA) “adopted” a sort of “declaration of independence” for themselves.  From Congress we got the “Contract with America” and from the RGA we saw a resolution that the states will actively fight against the federal government’s encroachment upon states authority.

Underlying the theme of both “movements” was the idea that the federal government was going beyond its constitutional duties and something needed to be done to bring it back in line. While these had good intentions, they fell short like everything else from the government does. People will always fall back to doing what they know and in the case of government; that is trying to gain power over everything.

At least twelve states had passed resolutions demanding that Congress get rid of all the unfunded federal mandates. Many of the other states asked for “mandate-relief” because they could not afford to implement the mandates. Kansas and South Dakota were probably the most vociferous; they were calling for a constitutional convention and wanted an amendment to our Constitution forbidding the federal government making such mandates.

Many states took up the call and passed resolutions asserting states sovereignty. The language of the resolutions was all similar in nature with their call for the federal government to halt its behavior of violating the 10th Amendment.  Walter Williams had noted:

The 10th Amendment movement may be America’s last chance to peacefully get Congress to obey the Constitution. Politicians have seriously underestimated public anger and are blind to the rebellion spreading across the land.

http://news.google.com/newspapers?nid=336&dat=19941222&id=IBtOAAAAIBAJ&sjid=f-wDAAAAIBAJ&pg=3154,3716396

For all their wanting, the RGA still fell short and the states dropped the ball. They were right to stand up and be noticed. It was all talk and no action. Unfortunately, over time, history has shown that people will always revert to what they have been taught. This effort slowly fizzled out as the states and federal government once again began colluding with each other.

The federal government can control things one of two ways. They can do it with the point of a gun or the use of the purse. So, while the states flexed their muscles, President Clinton gave them some of what they wanted to help rebuild their autonomy but he insisted on the federal government controlling the funds and their usage. He did this in his speech to the National Governors Association on Jan. 31, 1995, when he told them:

Even though you’ll have more flexibility to solve your problems, you must be held accountable for how you spend the federal money

http://www.gpo.gov/fdsys/pkg/WCPD-1995-02-06/html/WCPD-1995-02-06-Pg151-2.htm

Even though that part of our history proved to be faulty, the idea of the 10th Amendment and the force behind it; is not. Today many states are sick and tired of what the federal government is doing and mandating them to do. We are witnessing the “states political revolution” all over again. The difference here and now is that he states are no longer “asking permission”.

It is always easier to “do” and say you are sorry later, then to ask for permission and wait for denial. Apparently many states have learned the lessons of this folly from the 1994/95 fiasco. States are NOT asking the federal government for permission any more. They are enacting their own laws to nullify the federal government’s mandates.

States are finally stepping up the jurisdiction game and putting authority where it belongs. Several states have already passed medical marijuana laws making the drug legal for medical use. Two states (Washington and Colorado) have completely decriminalized marijuana all together.

This is a direct slap in the face of the federal government’s drug war policies. If EVERY state followed Washington and Colorado’s example, what could the federal government do?  Would they build a wall around the entire United States and say that everyone is in jail because of drug use? These actions, where they states work together to accomplish the same goal is exactly what James Madison was talking about when he said they would band together against the federal encroachment.

There is also a growing consensus among the states to nullify things like ObamaCare. Many states have enacted laws against its implementation. Some states, like Texas, even lay fines and penalties against anyone who aides the federal government in getting it implemented within their state.

More work still needs to be done before the correct balance of federalism is restored. As people learn more about Liberty they will insist their states exercise their 10th Amendment rights and hold the federal government accountable. People and state legislatures will need to read and acquire a sound understanding of the Constitution, what it says and why it says it.

Knowing how the Constitution was designed to properly function is vital to the successful 10th Amendment “movement” that Walter Williams was talking about. It should be obvious, to even the most casual observer, that the only way to restore our American federalism, is to know all the inner workings and apply the very principles it was built upon.

Freedom is not free. We, each of us, have an obligation to learn the principles are fore-fathers laid out for us. From there, it is our responsibility to hold our elected officials accountable and force them to abide by those principles. The Constitution cannot protect itself. We the people, MUST, be the ones to do it. If we do not, everything we do to try and get our system back on track will fail in misery.

The present battles, between the states and federal government, to recover federalism throughout the country; goes directly to the principles enshrined within our Constitution. The primary objective of our fore-fathers, when designing the Constitution, was NOT to answer how we run any public policy.

Public policy question and answers were nowhere in their minds. What they set out to do was to define the level where decisions would be made (the vertical plane). They created the Constitution in such a way as to define what they viewed as the federal-state relationships. Exercising the Constitution in any other way was not part of its original design.

In conclusion, it is up to us, we the people, to ensure the 10th Amendment is properly exercised. Failure to do so will ensure the rise of a tyrannical government.

Yours in Liberty

 

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Federalism and the 10th: The States’ Great Awakening

By on December 11, 2012 in Activism, Big Government, Constitution, Federalism, Founding Fathers, Founding Principles, Law, Nullification, Sovereignty Movement, State Sovereignty, Tenthers 9

In Part 1 of this series, I explained how our federalism works and how the powers were divided between the states and our national government. The details showed that the states were superior to the federal government on the hierarchy scale and that the 10th amendment protected that position whenever the federal government stepped outside its boundaries.

The Constitution is a great document, but it is nothing more the words on a piece of paper unless those responsible for working within its boundaries are held accountable. The Constitution is absolutely meaningless if the federal government can ignore it and do whatever it wants at any time it wants.

Slowly, of the course of the last century or so, we have witnessed the deterioration of our Constitution. The federal government has stolen power from the states and people on a regular basis. Our rights that are supposed to be guaranteed protection from an encroaching federal government are being dismantled one by one as new laws keep coming out of the federal government.

Members of Congress are vehemently imposing their will upon the states and the people with no regard to the Constitution at all. Perhaps they need to return to school and learn what happened the last time an “imperial” government mandated edicts while ignoring the people. If the federal government continues to treat the states like Britain did the colonies, how could they not expect the “revolution” to happen?

Today we can easily see that our federal government is pushing harder than ever to take on the dominate role in our country’s politics. The servant is attempting to become the master and centralizing power in Washington. The answer to stopping this usurpation lies in the governors and state legislatures. It is within their power to correct this problem.

President Obama and his Administration seem to want to repeat history. They are trying to recreate the New Deal in modern terms. Through the use of Congress, the Fed and the judiciary, they are overstepping their bounds and violating the fiscal and constitutional rights of state and local governments. The imbalance of power in our federalist system has finally reached a tipping point.

When the pain gets large enough, people will do something about it. Apparently, James Madison was correct about the states banding together. While a lot has been taken away, the beginnings of the reclamation process is becoming more evident in our modern times. Several states, although not making compacts with each other, are all moving in the same direction to oppose federal intrusions on their authority.

Perhaps the legal axiom of “silence is acceptance” is being put to use as the states are no longer being silent. That silence has been broken is the first indicator that the pain threshold has been breached. There seems to be a growing movement among the states now to take back the power that is rightfully theirs.  The wheels of insurrection are turning. State and local officials are fighting back. The giant has awakened.

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Federalism and the 10th: How It Works

By on December 10, 2012 in Activism, Big Government, Constitution, Federalism, Founding Fathers, Government, Law, Nullification, Sovereignty Movement, State Sovereignty, Tenthers 14

What we are witnessing all around the country is a political revolution. As time goes by, the revolution will grow huge, into a massive historical event.

The people are beginning to understand what is going on, and are starting to take the necessary steps to reestablish their correct place and boundaries in our federalist system. After so many years of seeing the power usurped, it does my heart good to see steps finally being taken to correct that wrong.

Many times we hear people say that this country is a democracy. That is not true, we are a republic, and we use democracy as a means to pick our representatives in a federalist form of government. Somehow, people seem to conveniently forget that fact. So, what is federalism?

When our founders created the Constitution and established our federal government they did it on two planes, vertically and horizontally. Everyone gets taught the horizontal plane in school where we have the separation of powers between the various branches of government. Unfortunately, they are never taught the vertical plane which is where the whole federalist structure is set in place with a division of power between the national and state governments. Continue Reading →

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Nullifying ObamaCare: An Alternative To The Supreme Court Ruling

By on November 29, 2012 in Big Government, Commentary, Government, Health Care, Law, Nullification 5

Recently, the Supreme Court ruled that Obamacare was constitutional.

The Administration takes this as a green light to implement ObamaCare to its fullest extent possible. Because the election went in President Obama’s favor, the Senate and House have lost any desire to overturn the law. Without the overturn, it looks like the law making Obamacare a reality is going to stand forever.

Or is it?

In order to make Obamacare work properly, as it currently stands, there are two mainstays of Obamacare that must be carried out on the state level. Each state must implement an insurance exchange and they must drastically expand Medicare according to the law. These two items of ObamaCare will cost the states untold millions of dollars to implement.

When federal law goes bad, it is up to the states to protect their citizens. The legal theory is called nullification. Nullification is the idea that any given state has the right to invalidate federal laws that they consider unconstitutional. Somewhere along the line the Supreme Court got it wrong in their reasoning. Accordingly, it is like saying that since the government has a stake in GM it can create a law that says we can only buy GM cars. If we buy any other type of car we have to pay an extra tax on it. Continue Reading →

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“Constitutional Rights”? Not Really

By on July 25, 2012 in Constitution, Delegated Powers, Federalism, Founding Principles, Law, Liberty, Uncategorized 1

I frequently hear people talk about how many “constitutional rights” we have lost under (fill in whichever President’s name). This brings up a very interesting misunderstanding about the origin of our rights… For one thing, our rights don’t come from the Constitution; the Constitution merely recognizes that our rights preexist it.

For instance, in the 2nd Amendment it goes like this:

“A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.”

It says “the right of the people to keep and bear arms shall not be infringed” ..not “the people shall have the right to keep and bear arms” – this is a very important difference in syntax! This is true throughout the document, and the document even recognizes in the 9th Amendment that we have all the rights not specifically mentioned.

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

If the Constitution gave rights, then the syntax of the 9th would say something like “that the people shall enjoy” or “that the people shall have” instead of “retained by the people.”

The meaning of the subtle difference here is profound, and has vast implications! Continue Reading →

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SCOTUS and the EPA vs Private Property

By on April 23, 2012 in Big Government, Law 0

On March 21, TAC reported that the Supreme Court had ruled in favor of an Idaho couple who had been petitioning the court system to be allowed to make their case concerning EPA administrative heavy handedness. The post, U.S. Supreme Court: Idaho Couple can take EPA to Court, reported that the couple had been directed by the Environmental Protection Agency to restore their newly acquired home construction plot back to its original state or face stiff fines. The EPA would not allow an appeal, or even a hearing.

Article 1 Section 8 of the U.S. Constitution enumerates the main powers delegated to the federal government, specifically those of the Legislative Branch. An original understanding makes it clear that the Constitution does not authorize Congress to form a federal agency which can dictate what people can do with their private property. Just as it has no authority to demand the American people purchase something, Washington D.C. has no power to tell us what to do with personal or real property we own.

Utah, Colorado, Nevada and many other western states are neighbored by separate “federal states” which cannot be utilized for their own taxing purposes or to access the natural resources that reside within them. This is due to the fact that the federal government had either grabbed up the land when the state first entered the union, or had purchased it by some means. Regardless of how it was acquired, the federal land is within the state, and the people of that state cannot utilize it, in most cases.

Federal ownership of the land creates no benefit to the state itself. As U.S. Government Property, it is considered a resource of the U.S. Federal Government. In some instances, such as the Smoky Mountains in North Carolina, the area has been deemed A UNESCO World Heritage Site and is “legally protected pursuant to the Law of War, under the Geneva Convention, its Articles, Protocols and Customs, together with other treaties including the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and international law”. Our Congress had to ratify that UN treaty. ”While each World Heritage Site remains part of the legal territory of the state wherein the site is located, UNESCO considers it in the interest of the international community to preserve each site”.

How is that for giving away Sovereignty? Continue Reading →

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Will Kansas Interpose to Protect Residents Against NDAA?

By on April 6, 2012 in Big Government, Constitution, Founding Principles, Government, Law, Liberty, News, Nullification, State Sovereignty 0

April 3, 2012: It’s official. The people of Kansas are serious about protecting their natural rights, and won’t be led into the shackles of tyranny without a fight. Because, as reported at “Occupy 316”, members of Occupy Wichita recently recognized the 2012 NDAA passage for what it was, and staged a demonstration outside Senator Pat Roberts’ office – complete with detainees, a prison cell and private security personnel. (Senator Roberts was one of the Kansas Senators who voted Yes on NDAA, along with fellow Senator Jerry Moran, and Representatives Lynn Jenkins, Kevin Yoder and Mike Pompeo).

And as reported by Michael Boldin in the Tenth Amendment Center article “Cherokee County Rejects NDAA”, the people of this county didn’t wait around until their citizens began disappearing off the streets, but took preemptive action, unanimously passing a resolution in opposition to the NDAA.

But now, with the help of leaders like Kansas Rep. Charlotte O’Hara (Dist.  27), Kansas government may have an opportunity through HR 6021 to interpose (via nullification) on behalf of the people. For example, HR6021 makes clear that, “The NDAA contains provisions repugnant to, and destructive of, the constitutions and Bill of Rights of the United States of America, and this state, directly violating the U.S. Constitution’s Article I, Section 9 [Habeas Suspension Clause], Article III, Section 2, Clause 2 [Trial by jury of all crimes except impeachment], Article III, Section 3 [Treason Clause], Article IV, Section 4 [guarantee of a Republican Form of government] the 4th Amendment [Protection against unreasonable search and seizure] 5th Amendment [Right to grand jury indictment and due process], 6th Amendment [Right to speedy and public trial], 8th Amendment [Protection against cruel and unusual punishments], and 14th Amendment [Equal protection], as well as infringes on the entirety of the Bill of Rights and basic structure of the Constitution, making We the People insecure in the exercise of any of our Rights and Powers…”

Because of the above injuries and usurpations of the Constitution, HR6021 states that the NDAA provisions are not only establishing an absolute tyranny over the states, but “are nearly identical to many of the long train of abuses and usurpations that compelled our forefathers to take up arms and to separate from Great Britain, as enumerated in The unanimous Declaration of the thirteen united States of America, of July 4, 1776: Now, therefore, Be it resolved by the House of Representatives of the State of Kansas: That for the above and forgoing reasons, this Legislature expresses its belief that the National Defense Authorization Act for fiscal year 2012 (NDAA) is unconstitutional in authorizing the President to use war powers, the “law of war,” and/or martial law in the United States and its territories over any person…”

Appreciate your right to free speech? Speak up! Continue Reading →

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New England Nullification Tradition Marches On

By on March 10, 2011 in Announcements, Big Brother, Big Government, Commentary, Constitution, Delegated Powers, Drug War, Economics, Federalism, Founding Fathers, Founding Principles, Government, Judiciary, Law, Liberty, Nullification, Originalism, Sovereignty Movement, State Sovereignty 1

Though many living in New England today might be loathe to admit it, there is a long history of nullification being used in the region to defy unconstitutional federal edicts. This week, the town of Sedgwick, Maine voted to carry on that proud tradition by nullifying certain federal agricultural regulations.

They did so through what might be the most legitimate form of democratic expression left in America: the New England town meeting. (Which have been held in the Sedgwick town hall since 1794.)

According to one report, the residents of Sedgwick voted to enact a law that not only permits

“Sedgwick citizens…to produce, process, sell, purchase, and consume local foods of their choosing,”

but declares that Continue Reading →

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