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

“It shall be unlawful for any law or regulation adopted by the state or federal government to interfere with the rights recognized by this Ordinance.” 

What about potential legal liability and state or federal inspections? It’s all up to the seller and buyer to negotiate. “Patrons purchasing food for home consumption may enter into private agreements with those producers or processors of local foods to waive any liability for the consumption of that food. Producers or processors of local foods shall be exempt from licensure and inspection requirements for that food as long as those agreements are in effect.”

This is so basic and yet so revolutionary.

In these days when petty tyrants seem to be at the helm of every government agency, imposing their arbitrary and destructive will upon a cowering citizenry, it is refreshing to know that there are still people with the courage and capacity to stand up and say “Not in our town.”

I can’t wait for the trolls to try and claim that, like medical marijuana, what happened in Sedgwick can’t be nullification because the Supreme Court said it doesn’t exist.

A federal judge ruled Thursday that parts of a lawsuit by 20 states seeking to void the Obama administration’s health care overhaul can go to trial, saying he wants hear additional arguments from both sides over whether the law is unconstitutional.

In a written ruling, U.S. District Judge Roger Vinson said it needs to be decided whether the plan violates the Constitution by requiring individuals to have health insurance or be penalized through taxes and by overburdening the states by expanding their Medicaid programs. Another federal judge in Michigan threw out a similar lawsuit last week…

The administration’s attorneys had told Vinson last month that without the regulatory power to ensure young and healthy people buy health insurance, the health care plan will not survive. They also argued it’s up to an individual taxpayer — not the states — to challenge the section requiring health insurance when it takes effect in 2015.

The mandate will get before the supreme court, most likely.  Would someone like Elena Kagan rule that government power is limited?  Eh.  Doubt it.

Or, maybe like the Michigan case last week – it’ll just get thrown out somewhere else.

Or – they just rule that the mandate is bad – but validate the unconstitutional rest of it.

There is no good outcome of this lawsuit, in my opinion.

Pardon me but don’t the courts only have one function and that is to weigh the facts and punish those who break the law. The way a court system works is that the government brings the accused before it where they weigh the facts presented by the state in order to decide if the accused broke the law. They then meet out punishment based on what the law says.

Notice I said they don’t decide punishment because that has already been decided by the law. In fact, everything the court does is decided by law. The courts have this power because of the constitution and the same constitution gives them the power to judge the law as well as the facts. This is stated in Article III section 2 of the constitution.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

In my opinion, the courts have the power to judge both the facts of the law and the law itself which gives them the power to declare a law unconstitutional and simply refuse to prosecute anyone found guilty of an unconstitutional law. The constitution gives them this power simply because it is written here and there power is protected by the fact that the other branches of the government can not remove one member of the Supreme Court. Without this legal protection of the power the Supreme Court would be subject to intimidation of the other branches of government.

Its important to realize that the same clause that gives the federal court the power to declare a law unconstitutional only gives it to the supreme court. All other courts are powerless to judge the law and can only the facts of the law because it says that the Supreme Court shall have appellate jurisdiction, both as to law and fact,. The constitution only gives the total federal court system the power to judge the facts of the law but the power to judge a law (evaluate its constitutionality) is reserved for the Supreme Court only. This helps to protect precedent that is necessary for uniformity in the federal court system because you can not have one federal law declared unconstitutional in one part of the country and constitutional in another. In order to establish uniformity the Supreme Court is the only one that can declare a law unconstitutional and all other courts can only judge the facts of the law and not the law itself.

Simply put, the federal judge in Arizona who blocked certain parts of the law because she thought it was unconstitutional had no authority under the constitution to do so. She could only follow previously established precedents that were established by the Supreme Court itself and judge the facts presented against the accused. This means that it is unconstitutional for a lower court to find any law unconstitutional since only the federal Supreme Court can do so.

In order for the Supreme Court to be immune from pressure from other branches of the government they have lifetime appointments. This make it possible for the Supreme Court to provide an important check against the other branches of government but the other branches of government are protected from the Supreme Court as well. The judicial branch of the federal government can not remove a single person from power even when they are in violation of the law.

This provides and important check against the Supreme Court because it prevents the federal court system from imposing its will onto the entire system. This allows the executive and legislative branches (as well as any state governments) to function free of any intimidation that the courts can apply to them.

This is the current state of affairs in our government and what is wrong with our Supreme Court in that they have no checks on their own authority because the other branches of the government have convinced themselves that they are the final say on the constitution. The other branches of the government have forgotten that the Supreme Court can not remove a single person from power. They can only punish people by what the law decrees so if a state such as Arizona chose to ignore the federal court’s decision they would be powerless to do anything about it. This is an important check in the system against the federal court system that nullifies their self-assumed power over the entire system.

Their power would then be returned to the narrow scope of deciding cases brought before it and not to the independent actions of the either the state or other branches of the federal government.

The only way the federal courts can nullify the Arizona law is if Arizona chose to bring a deportation case before it and even then it would only have the legal authority to judge the facts of the law only and not the law itself. The power to judge the law is reserved for the Supreme Court. The Supreme Court could decide if the law is unconstitutional but its precedent would only apply to the lower courts in the federal system and only to cases brought before it where a person is accused of violating the law.

This makes it possible for a state like Arizona to use its own courts to enforce its own illegal immigration law without any interference from the federal court system. The Arizona court system can then decide if the law is constitutional for itself. The federal court system would be powerless to stop it because they can not remove a single person from power. The state government would then carry out punishment based on its own law and completely ignore the federal courts.

The paternal power that your parents had was well established since you were born because they had to take care of you. While they were taking care of you you were dependent on them and this gave your parents a sense of power over your being. This is why your parents believe they have a right to control what you do with your life while they are taking care of you and the expression ‘under my house…blah…blah…blah’ exist.

The one thing that many political philosophers such as John Locke were dealing with at the time was the paternal power of the state. Monarchs were not magistrates who executed the law but seen as parents who assumed they had control over you in the same way a parent does over a child. The king was responsible for your welfare and survival which turned each citizen into a personal ward of the king. This established the same relationship you had with your parents when you lived with them between the king and society.

Society was really ruled by two powers which were the paternal power of the monarchs and the legal power of the state. These two powers existed simultaneously as the king was the personal authority of your person which is why you had to bow to him. Laws were created by the state/monarch that really resembled rules parents established for the relationship between them and their children. In the same way parents demand to be honored by their children the king demanded to be honored by the citizens which is why it was illegal to speak against the king.

This relationship between the citizen and the state was a deadly sin in the name freedom and equality because it established that a person was subservient to another by birth right. This is why ‘all men were created equal’ took on a special meaning because it said that no person was under the authority of another. This is the basis of freedom because is a person is not under the authority of another thus being equal in rank then no person has the right to tell the other how to live or what to do.

What many political philosophers did was to separate these two powers into separate spheres of legal and paternal authority.

When this was done it destroyed the monarch’s power and by doing so it established that the only authority a person had was the law. This set each person free of the paternal power that the state had and societies, especially in America, started to feel like the first days you moved away from home. In the same way you were free of the authority of your parents the people were free of the authority of the king.

Once the law became the only authority each person had in a society then it became natural for each person to ask who establishes these laws and how can we all claim to be equal in authority if some people get to establish the laws by which other people get to live by.

This is where the constitution comes into play. The constitution is nothing but a set of statutes except that it is a higher law than any law people in power can create. Its authority places those in power on equal footing as people not in power since each one has to obey the same constitution. It’s the first time in history that we had a law above the people in power which maintained the equal authority or equality of every member society since each member was equally subservient to the same constitution.

The supreme authority was not in the arbitrary will of the people in power but the text of a document that had more power than anyone. This is why the constitution has the power to limit the government because its authority is above them and their powers are derived from that document. The people in power do not make the supreme law of the land but are subject to the supreme law of the land just like every other person is. This makes the constitution master of all and the people and the government holding an equal position of second to its authority. The constitution’s authority makes everyone equal in rank with one another.

Today, the paternal power of the state is still alive because people in power almost see themselves as caretakers of our person. This is because the social memory of the divine right of kings still exists within us but the weapon against it is the constitution and the authority of the supreme law. It is the same weapon that was used during the American Revolution which was what Thomas Paine said in Common Sense ‘the law is king’. This establishes that it is the law and more specifically the supreme law that exists within the text of the constitution that is the only authority that exists for every member of society.

The law is king but it is not laws created by our legislatures but the constitution because all other laws created by any legislature is simply one person’s authority over another and this is not a state of equality. We are not obligated to obey the laws of any government because those are not the supreme law of the land and to believe that those laws are the supreme law of the land is to believe that some people (the elected) have more authority than others. In order for there to be a state of equality between all people in a society we must realize that the text of the constitution is the only authority that exists in society.

We are not ruled by kings, legislatures, or any human being but by words on a document called the constitution which has no will other than what the people manifested into them. It does not have any malice, ambition for power, and cruel desires (other than the one that we write into it). It allows our free-will to manifest itself because the authority we are subject to is not the personal authority of others but the words that are written into it. When we realize this we are free of the authority of others because we are subject to the supreme law of the land and not the supposed supreme will of others.

Jillian Rayfield, in a brilliantly unbiased article *insert sarcastic tone* on TMPDC.com writes:

This “tenther” group touts state sovereignty and nullification — the idea that a state can override a federal law it deems unconstitutional (a notion that has been consistently rejected in federal courts). (Emphasis added)

But doesn’t it seem a little fox guarding the henhouseish to deem a branch of the federal government the final arbiter of what is or isn’t Constitutional? Can we really expect agents of the federal government to protect the states and the people from federal tyranny?

Thomas Jefferson thought so, and he addressed that very issue in the Kentucky Resolutions of 1798 . Our nation’s third president and the author of the Declaration of Independence penned the resolutions for the Commonwealth of Kentucky after the passage of the Alien and Sedition Act, four laws vastly increasing federal power and viewed by many, including Jefferson and James Madison, as unconstitutional.

Jefferson wrote:

…the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

In other words, state governments and the people have as much right to judge an act unconstitutional as the federal government, and further, to take the action they deem necessary. Courts don’t stand as the final arbiter. Nor does Congress, or the president. That right ultimately lies with the people.

When the federal government oversteps its delegated powers, citizens should first seek to replace the offending representative. Redress through the courts also provides an option. But when the overstep become so grievous and such a threat to liberty that those options no longer remain open, and the people find themselves left with no other form of redress, they can, according to Jefferson, protect their freedoms through nullification.

The people of Missouri recently took that step, voting overwhelmingly not submit to a federal mandate to purchase health insurance. And when enough states bind together, federal power becomes impotent.

Jefferson went on to write:

That in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, 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.

cross-posted from the Kentucky Tenth Amendment Center

ONLY the US Supreme Court has Constitutional Authority to Conduct the Trial of the Case Against Arizona & Governor Brewer.

US Constitution, Article 3, Section 2

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. (emphasis added)

Federalist 81 (Hamilton)

Let us now examine in what manner the judicial authority is to be distributed between the supreme and the inferior courts of the Union.   The Supreme Court is to be invested with original jurisdiction, only “in cases affecting ambassadors, other public ministers, and consuls, and those in which A STATE shall be a party.  ” Public ministers of every class are the immediate representatives of their sovereigns.   All questions in which they are concerned are so directly connected with the public peace, that, as well for the preservation of this, as out of respect to the sovereignties they represent, it is both expedient and proper that such questions should be submitted in the first instance to the highest judicatory of the nation.   Though consuls have not in strictness a diplomatic character, yet as they are the public agents of the nations to which they belong, the same observation is in a great measure applicable to them.   In cases in which a State might happen to be a party, it would ill suit its dignity to be turned over to an inferior tribunal. (emphasis added)

US Code: TITLE 28 > PART IV > CHAPTER 81 > § 1251

§ 1251. Original jurisdiction

(a) The Supreme Court shall have original and exclusive jurisdiction of all controversies between two or more States.
(b) The Supreme Court shall have original but not exclusive jurisdiction of:

(1) All actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties;
(2) All controversies between the United States and a State;
(3) All actions or proceedings by a State against the citizens of another State or against aliens. (emphasis added)

Federalist 78 (Hamilton)

There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.  No legislative act, therefore, contrary to the Constitution, can be valid.  To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.

It occurs to me that this same discussion also seems relevant to State law suits against the Patient Protection and Affordable Care Act and Firearms Freedom Acts.  Thoughts?

cross-posted from the Pennsylvania Tenth Amendment Center

Federal District Judge Henry Hudson’s opinion refusing to dismiss Virginia’s lawsuit challenging the constitutionality of the Obama health care plan has several interesting aspects. The suit focuses primarily on a challenge to the “individual mandate” element of the plan, which requires most American citizens and legal residents to purchase a government-approved health insurance plan by 2014 or pay a fine for nocompliance. Here are a few of the most important points covered in the opinion.

First, Hudson rejected the federal government’s claim that Virginia did not have standing to challenge the mandate. Although states are generally not allowed standing to litigate the interests of their citizens, Hudson argues that Virginia has standing because the federal health care bill conflicts with a recently enacted Virginia state law, the Health Care Freedom Act. This, he argues, is enough to give Virginia standing, overcoming the sorts of federal government standing arguments that I discussed in this post. This argument may have negative implications for the other major lawsuit against Obamacare, filed by 20 states and the National Federation of Independent Business. Most of those states do not have state laws comparable to the Health Care Freedom Act. NFIB, however, has individual members who are subject to it, such as self-employed businessmen. In addition, the other states could try to establish standing by relying on the broad theories of state standing endorsed by the Supreme Court in Massachusetts v. EPA. Hudson also rejects the federal government’s argument that the lawsuit isn’t “ripe” for adjudication because the individual mandate will not come into effect until 2014. He points out that the new federal law will force both individuals and the state government to make adjustments to their health insurance plans even before that.

Second, Hudson agrees with co-blogger Randy Barnett that the individual mandate isn’t clearly covered by existing Supreme Court precedent under either the Commerce Clause or federal government’s power to tax. He argues that this provision “literally forges new ground and extends Commerce Clause powers beyond its current high watermark.”

CLICK HERE TO READ THE REST

To find the mandates in Obama Care illegal and, indeed, to roll back the bulk of economic regulation on business, would require a radical rethinking of the intent and meaning of the Commerce Clause.

Such a rethinking should start by noting that the original intent of the commerce clause was likely an attempt to prevent the individual states from placing taxes and duties on interstate commerce, which had been their habit prior to the Constitution.

Is Obama Care constitutional or is it, instead, an egregious overreach of federal power, an economic boondoggle, and a violation of individual rights? Let’s see if the Supreme Court is ready to think and rule outside the box.

click here to read the full article

U.S. District Judge Joseph Tauro ruled that the federal Defense of Marriage Act, which prevents the federal government from giving pension and other benefits to same sex couples, is unconstitutional, reports the Associated Press.

Tauro wrote that the 1996 law ran afoul of the Constitution’s Tenth Amendment. “The federal government, by enacting and enforcing DOMA, plainly encroaches upon the firmly entrenched province of the state, and in doing so, offends the Tenth Amendment,” Tauro wrote.

The problem, though, is that they don’t apply this same principle to everything. They should – and need to.

A few quick points.

a) The ruling affirms the states’ reserved power over marriage – as something not delegated to the federal government in the constitution. This is correct. The 10th makes clear that We the People of the Several states created the federal government to be our agent for certain enumerated, or listed, purposes – and nothing more. (even the Necessary and Proper clause would be a huge stretch on this social issue)

b) The ruling does NOT strike down Section 2 of DOMA – which allows each state to determine whether or not they will recognize gay marriages licensed in other states. This is also correct, because it leaves the proper situation of each state being able to decide its own fate – and not being forced to recognize another’s decision.

If the courts were trustworthy, they’d do the same for healthcare, education and all kinds of other powers that the federal government has usurped.

So would politicians – who seem to champion the 10th only when it’s in their partisan best interest.

Will they? I doubt it. You?