By Mike Maharrey.
NOTE: Mike will be a featured speaker at Nullify Now! Jacksonville. Get tickets here – http://www.nullifynow.com/jacksonville/- or by calling 888-71-TICKETS
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In an Aug. 25 Washington Times article titled Rebellion by states could be hazardous to health care overhaul, Wake Forest law professor Mark Hall once again illustrates why we shouldn’t call on lawyers to tell us anything about the Constitution, even though they like to wave their hands in the air screaming, “I know, I know!” Lawyers may know a lot about “law” – as in the string of court precedents handed down over time, but they typically know precious little about constitutional history, political philosophy or the ratification debates, and their asinine comments on constitutional principles usually reveal their ignorance and their reliance on false premises.
When asked about state efforts to nullify the federal health care act, he calls them a “bad idea” and “political moves.”“The Constitution couldn’t be clearer that the federal law is the supreme law of the land. The only question is whether the federal law is valid.”In the meantime, Hall thinks the states should sit down, shut up and let the courts decide.
Which begs the question – who made the federal courts king?
Answer – the federal courts did. Which seems a little fox guarding the henhouseish, doesn’t it?
Let’s say you and I become embroiled in some kind of dispute, and I assert that my mother will make the final decision. Would you accept that? I mean, my mom is a wonderful woman. Very upstanding and fair-minded. In fact, she might decide things your way.
Every once in a while.
Maybe.
Nobody with an ounce of sense would accept that scenario. Yet millions of Americans, including legal experts like Hall, think that’s exactly how the U.S. system should operate. One branch of the federal government gets the final say in a dispute involving the federal government.
How’s that working out for us?
Between 1937 and 1995, the U.S. Supreme Court never once ruled a congressional statute unconstitutional? Not one. Now are you really going to tell me that everything Congress passed in that 58 year span was within the federal government’s constitutionally enumerated powers?
Really?
James Madison and Thomas Jefferson recognized this inherent conflict of interest and refused to accept the notion that the Supreme Court stood as the final arbiter. In the Kentucky Resolutions of 1798, Jefferson wrote:
“The government created by this compact (the Constitution) 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.”
Madison expanded on this idea in his Report of 1800, a defense of the Virginia Resolutions of 1798.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
Hall will likely protest that letting states judge for themselves will create unmanageable chaos. Aside from the fact that a little chaos isn’t always a bad thing, which formula fits better with the idea of democratic self-rule? Five out of nine judges, unaccountable to the people, making the final decision? Or the people’s representatives in multiple state legislatures judging for themselves?
Having lost the argument based on the historical record and basic logic, Hall will likely play the trump-card defenders of overreaching federal power almost always slap down – you know, the race card.
Oh wait. He did that already.
“It reminds me of govern>ors who stood at the doors of their state universities and refused to accept the civil rights laws.”
You know what it reminds me of, Mr. Hall?
More than 3,000 people standing in front of a Milwaukee jail in 1854, insisting on the release of a fugitive slave captured, beaten senseless and thrown in jail to await shipment back south without due process. It reminds me that those people broke down the door of that jail and freed Joshua Glover, ultimately whisking him to freedom in Canada on the Underground Railroad. It reminds me that abolitionists appealed to the principles of nullification to fight draconian fugitive slave laws, laws that denied accused runaway slaves due process and forced northern citizens into the role of slave catcher. It reminds me that the legislature of Wisconsin backed up the state supreme court, defending its power to protect the man who instigated Glover’s release, declaring -
The Government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself.
I suppose they didn’t teach Professor Hall that in law school.
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of ’98 – Kentucky. See his blog archive here and his article archive here. He also maintains the blog, Tenther Gleanings.
A good perspective into the insights our founding fathers had when they formed the constitution.
To forget this “perspective” is to lose its meaning and worth.
Good job!
exactly!
Apologies for the thread-jack, but as an Indian, I find such issues fascinating. More fascinating is the fact that the constitution, as commonly understood by most Americans, was never adopted, or rather, does not apply as many think it does.
Perhaps a leap to the tin-foil side, but probably worth a gander…
http://aadivaahan.wordpress.com/2011/05/20/hey-america/
http://aadivaahan.wordpress.com/2011/02/16/truth-about-america-truth-about-us/
Perhaps a red-herring or two in there, but mostly, frightening in their implications…
Vivek
its the 14th amendment. http://www.pacinlaw.org/pdf/Dual_System.pdf
Thats right. What people don’t relize is what the 14th amendment did to the people. It changed their nationality from being a national of their state they live in to being a national of the US. and in doing so you are bound by the laws of that co called state the “US”. And the “US” is a state under international law.
http://www.notmygovernment.us
Our unelected, unaccountable black-robed oligarchs have consistently elevated “judicial supremacy” over “constitutional supremacy”. SCOTUS and the unchecked federal court system have become a menace to constitutional order. They MUST be reigned in or ignored.
The people let this happen. So we have got to do away with the injustice system as we know it today. It’s just a system made by Lawyers to make Lawyers rich.
Very true. It is all about revenue and not just the lawyers. Let me give you an example of the conspiracy: Say that we have a tax appraisal district – this tax appraisal district works for 15 entities (schools, hospitals, courthouse and ect.) It is doing the job of the tax assessor (according to tax assessor job description). This tax appraisal office (Corporation) sets the rate of the taxes to be collected by these entities (supposedly self-sufficient). If you do not pay the tax, you go to court. Since most cannot afford an attorney, the tax appraisal office attorney (paid by the people) will show up without you being there and the judge will foreclose on your property. They will turn around and sell your property (all profit) to the highest bidder. This will then be divided between the 15 entities and they start all over again with someone else. This is against the law of the land, so they are committing fraud because they are benefiting from this misjustice. Please be an informed Juror!
Isn’t it also true that either of the other two branches of the federal government can order the Supreme court to simply not hear certain cases?
From that perspective, all’s the Supreme court is is a fig leaf covering the obliteration of our self-government.
The House of Rep has appellate jurisdiction over the Supreme Court. That and the fact that the House initiates all bills of appropriations and reports to a smaller constituency are all good reasons to put our limited time and money into removing those members of the House who refuse to abide by the Constitution.
As long as a member of the House abides by the Constitution I could care less what party he or she belongs to.
Ron Paul has done that for 30 years and keeps getting reelected.
The problem as I see it is that most of the politicians who run for any kind of political office are Lawyers who are taught by Law Schools that are in fact teaching that all laws must be subjected to the scrutiny of eventually the Supreme Court. This teaching is basically violates the constitutional confines of government to begin with. In order to rein in the Supreme Court we will need politicians who are not lawyers and who would write legislation that would not only permit Nullification of laws but also limit the power and authority of the Supreme Court.
We need people who are not lawyers to run for political offices and get elected who actually believe in the Nullification system where states actually have the Supreme deciding authority. We need politicians in Congress who are bold enough and not coerced by Washington D.C. to take a stand against the Supreme Courts decisions and put them in their rightful place.
My question is what happens if individual state legislatures pass laws that violate the rights of the citizens. Can the citizens themselves Nullify the states laws? or are we stuck with laws that violate our rights or are we stuck with the decision to simply move out of that particular state leaving our jobs (if we are lucky enough to have one) and sell our homes just to regain our freedoms to attempt to regain real justice with a state that accepts and recognizes the Nullification process.
Yes, then let us elect Dr NO, Ron Paul.
Well said Mike88. And we endorse the idea that every citizen should be able to defend his own case in court, Pro Se, not with a Lawyer.
Only knowing the filing steps, the rules of civil procedure, and have google ability to search the rules of evidence. The other ingredient is the determination to make logic the engine, with the standard that all laws must make sense in order to be valid laws. With the internet, and lots of time for thinking through your case as you fight it, each citizen should be able to make a strong case. With that sort of expertise and determination by Patriots, more things will go right locally. The lawyer approach is to lose.
Hopefully, say we fighting our own case against a criminal in government.
The founders viewed “we the people” as THE final arbiters of what is and what is not constitutional. Thus, if “we the people” routinely roll over in the face of federal or state overreach, then “we the people” are the problem.
Unfortunately, Jim Delaney has it right. “We the people” through our lack of watchfulness have let this evil cancer grow. In every sense of the term we have a dictator in our White House and it makes no difference if the occupant is Obama or someone else. By executive order Obama has made the checks and balances and the separation of powers irrelevant. All federal department heads now report directly to and take their marching orders from the occupant of the Oval Office. Please see my comment here http://teapartycochisecounty.ning.com/profiles/blogs/a-dictator-in-our-house .
The big question becomes: What are the consequences and the ramifications of EO 13575? History has shown that whenever an oppressive government takes control over a people it is exceedingly difficult to take it back.
Thomas Jefferson understood that an over-reaching government would eventually meet with armed conflict from its citizens. He not only understood this concept, he quietly accepted it as a natural part of life. His quote:
“The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants”
In my humble opinion, this is where we are today and the solution lies in our Declaration:
“That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
And from James Madison:
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, [the Constitution] to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact [ie. article 1, section 8]; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. – James Madison, Virginia Resolution of 1798
Mike88 asks the question “what happens if individual state legislatures pass laws that violate the rights of the citizens?”. For whatever it is worth, my answer is: “We the People” must start dismantling the “House of Bureaucracy” at all levels, local, state and federal. To do less will invite corrupt public servants to continue to “fundamentally transform” our beloved America into another socialistic failure. We must hold our public servants, elected and non-elected, from dog catcher to President, accountable to the Constitution and the will of the people. “We the People” MUST begin the task of cleaning up our house in Washington and at our local level.
Unfortunately, I think that the American people, for the most part are ignorant to the point of self-destruction. There is no escaping a very dark tunnel ahead of us and it is a tunnel not a road with exits along the way. This is going to be very painful but we, as a society, have a price to pay for abandoning our post on the wall. I cannot yet see the light at the end of this tunnel, but I know that it is there. I say that because of the vision George Washington was given in the depths of his despair at Valley Forge during the winter of 1777. If you have not read or heard of this, here is the link ( http://usa-the-republic.com/items%20of%20interest/vision.html ). Please pass it to your fellow patriots, citizens and friends. (This link is to the Library of Congress archive of the original. http://chroniclingamerica.loc.gov/lccn/sn82016187/1880-12-01/ed-1/seq-1/ )
Do not despair, this is America’s future:
“While the stars remain, and the heavens send down dew upon the earth, so long shall the Union last.”
Dave
Right on, Dave.
“While the stars remain, and the heavens send down dew upon the earth, so long shall the Union last.”
No, absolutely not! That may be what YOU wish, but you — or me, or anyone else — have no control or right to bind generations not born to what we may want. How long should the Union last? Only until the people who inhabit this place desire something different, and not one second longer.
Re: Jason Calley….
Apparently, you did not follow, or read, my link to the source of that comment about stars and dew. Those were not my words, they were spoken by the angel that was speaking to George Washington. If you want to dispute what was said, you need to find that angel and argue with him…..Good luck on that.
Dave
GREAT POST Dave ~ You’re RIGHT ON TARGET!
I don’t like that Supreme Court Justices are appointed for life. Why is that? What law was written to make this so? If anyone can explain this to me? I’d appreciate it.
Tony,
My understanding is that life appointments were intended by the founders to render justices less apt to be controlled or influenced by politicians. However, what the founders failed to understand is that appointments were already politically tainted by virtue of their having been confirmed by politicians. Also, life tenure in no way guarantees that the judges themselves won’t harbor political biases which would adversely affect their objectivity. For these reasons, Jefferson was deeply concerned. He strongly supported a State-Federal check on appointments and dismissals as well as joint authority to override Supreme Court rulings. So much needs to be done to restore constitutional order and to repair the few instances of, yes, “founder shortsightedness”.
Judicial Activism and the Threat to the COnstitution
http://www.frc.org
Associate Justice Sandra Day O’connor
on the Supreme Court
“I do not believe it is the function of the judiciary to step in and change the law because the times have changed. I do well understand the difference between legislating and judging. As a judge, it is n0t my function to develop public policy”
“The proper role of the judiciary is one of interpreting and applying the law, not making it
http://www.judgenap.com
No one is bound to obey an unconstitutional law and no court are bound to enforce.
Sixteenth American Jurisprudence-Second Edition, Section 256
These federal judges are used by other politicians and lawyers to get the comment they want. Notice how lawyers will shop around until they have one that will give them the results they seek? Judges will continue to MAKE LAW
We need a constitutional law committee set up to monitor and verify as to the validity of all supreme court judges decisions on constitutionality . One mistake and out , no social actitvists on any court in the land . Social engineering is always wrong but particularly so when it is done through the courts .
Yeah, and Justice O’Connor is the one railing against all of us for taking on the judiciary and “threatening” the “independence” of the judiciary. She feels that the judiciary needs to be protected by guns so that it can conduct the business at hand.
Michael, good article! I’m sure the federal judicial system is bias since congress (politicians) nominate and vote to appoint federal judges. The system is already corrupt when congress approves the political appointments.
We the people have accepted and have allowed ourselves to be forced into
believing in the 11th and 12th Commandments.
11 Commandment….THOU SHALL NOT QUESTION.
12 Commandment….THOU SHALL NOT THINK FOR THYSELF.
Thanks for your shining light Michael.
It amazes me how little Americans know of their country’s history.
In 1854 States had great power,by 1865 it was taken away.
while Americans swallow the propaganda of their country hook,line and sinker ,they have become ignorant of their own history.
The Civil war had little to do with slavery and everything to do with states rights .
The narrative of freedom for the blacks brings honor to a war that was fought over the rights of States .
rise above the propaganda or remain forever enslaved by it.
When Lincoln 1864 warned “corporations have been enthroned in high places an era of corruption will follow”
he was talking about the bank of England now being enthroned in USA.
What has followed was lies built on lies to quell any further rebellion. It is the reason USA has no money of it’s to this very day.