The Constitution Under Attack **** GET YOUR FREE MAGAZINE ****
Alert! A rather insidious assault on the Constitution has been in progress for many years now in the form of a continual erosion of the rights of the people, the ignoring of checks and balances, the creation of extra-constitutional branches of government and the defiant redefinition of the document itself.
Yet now, as perhaps never before seen, there is a two-fold attack on the United States Constitution which is being perpetrated by both “Conservative” and “Liberal” interests simultaneously under the auspices of Domestic and Foreign Policy. While both political factions tend to oppose one another in these two areas, the solution each faction promotes would ultimately “fundamentally change” America.
A Treasonous Foreign Policy
The Obama Administration is in the process of hammering out two new “Free Trade” agreements in backroom negotiations. The two treaties are the Trans Pacific Partnership (TPP) and the Trans-Atlantic Trade and Investment Partnership (TTIP). The TPP would establish a partnership in which the United States would join with Pacific rim nations in a regional super-governmental structure in which US domestic law would be brought into conformity with that of the other block members. The TTIP would accomplish much the same with nations in the Atlantic region, namely, the European Union nations. Enforcement of the harmonizing of law amongst these blocks of nations would require new international agencies. One can easily see, that the creation of these new agencies by our Congress would move the responsibility of law making out of the hands of our elected representatives to agency members not directly affected by the will of the voting public. In other words, the people of our nation will have lost its ability to affect legislation in these areas. Furthermore, dispute resolution would necessarily need to be handled in tribunals which represent the interests of the partnerships as a whole. Therefore, American businesses will be subject to the will of non-American or super-national panels without recourse to the national legislature.
It is difficult to discuss exact details of these treaties at this time because the negotiations are closed to Congress and the American people. The secrecy in which these negotiations are being conducted is foreboding. I suppose we have to pass the “Partnerships” to find out what is in them. What we do know is that they are being treated as if they are treaties and we are reminded that Treaty Law supersedes the Constitution. Despite the fact that there is ample evidence to show that treaties are invalid when they attempt to alter the Constitution, much damage has already been done in this manner through NAFTA and the WTO while our domestic courts have ignored these abuses. See the free magazine link below which details what we know at this time.
A Dangerous Domestic Agenda
Meanwhile, in an attempt to arrest the abuses of a run-away federal leviathan in Washington, our “Conservative” leaders are dreaming up new ways to destroy our Constitution. The latest fad is that of the Liberty Amendments being promoted by Mark Levin. This movement is quite insidious and rather ingenious. While the various problems discussed by Mr. Levin are real, genuine concerns, the poison is in the solution. A Constitutional Convention call could accomplish all of the planks of the “Liberal Left” at once, even if it were called by “Conservatives” for the exact opposite intentions. Please understand, I am not opposed to the intentions, the reasoning, or the correction of real abuses. I oppose the method of solution and here is why.
In the United States of America, the sovereign will of the people is the basis for all government. We are reminded in the Declaration of Independence that “…Men are endowed by their creator with certain unalienable rights… 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.”
The methods established within the Constitution to invoke this abolition or altering of the government is the Article V process. One such method is via a Constitutional Convention commonly called a Con-Con. There is a reason this method is not normally used.
Once this process is invoked and delegates are appointed, they would operate with the sovereign power of the people. This raw power must operate outside the confines of the governmental form which they seek to alter or abolish and there is no authority on earth which can restrain it. We are told that the amendments they would seek to establish would require ratification by the existing state governments. Is that a guarantee? No. Theoretically, the existing ratification process could be altered or abolished during this process. We have the historical precedent of the 1787 Constitutional Convention to prove that fact.
When the original 1787 Convention was called, the body was under instruction to alter the Articles of Confederation and the ratification process was specified to require unanimous consent of the 13 state legislatures. Rather than alter the existing document as instructed, they wrote an entirely new document. Read the document they gave us:
“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”
What happened to the unanimous consent requirement?
So, I caution my fellow countrymen. Do not be so gullible as to accept these assurances. There are no assurances. Ask yourself a simple question. In a country in which its leaders refuse to obey the contract of government, what makes our “Conservative” leadership believe that new amendments will be obeyed? The solution to America’s woes ultimately come down to the American people having the will to enforce the Constitution as it is written and as it is intended. That need will still exist regardless of how many amendments we pass.
Preserve The Constitution
The primary goal of all Americans must be to preserve the Constitution. For as long as this document stands as a bulwark against dictatorship, we have recourse to it. We have the ability to enforce it. If we allow either the “Left” to Supersede it via dangerous regional partnerships or the “Right” to alter it through convention, all bets are off. So, all men of good will need the Constitution. Our course of action is simple: Defend it and enforce it!
- How The Free Trade Agenda is Knocking down America (Full New American Magazine vol 29 no 17)
- America’s Voice Now Youtube Program November 2013 Part 1
- America’s Voice Now Youtube Program October 2013 Part 2
- America’s Voice Now Youtube Program October 2013
- America’s Voice Now Youtube Program August 2013
- Preserve Your Rights – Stop the “Free Trade” Agenda
- The “Free Trade” Agenda Threatens Our Rights
- Levin, Limbaugh, Hannity Calling for Con-Con
- Mark Levin’s Dangerous Constitutional Convention Proposal
- More About Levin’s Dangerous Con-Con Proposal
- Wrap-up Regarding Levin’s Dangerous Con-Con Proposal
- Not-So-Free Trade (Printable Brochure) Great Mailing Stuffer
- Real Price of Free Trade (Printable Brochure) Great Mailing Stuffer
- Free Trade Promises and Reality (Printable Brochure) Great Mailing Stuffer
Secure On-line Ordering:
Double Jeopardy in Jeopardy
Regardless of how you interpret the not-guilty verdict in the Zimmerman trial, all Americans should be concerned about the Federal Government launching a civil hate-crimes case against George Zimmerman. The Constitution provides protection against “Double Jeopardy”. It is in the best interest of all Americans to make sure our rights in this regard are protected. Even if it means allowing an injustice to prevail, it is critical that the federal government not be allowed to drag a defendant though repetitive trials. If Zimmerman can be indicted twice for the same crime, where does it end? Theoretically, he could be charged every time someone were to come forward with “new evidence” and he would have to live out his days in fear of a government indictment for an issue already resolved by a jury of his peers. Now, forget we are talking about George Zimmerman. Put yourself into his shoes, because once the precedent is set, we will all be subject to similar prosecutorial irregularities. Let’s review the major milestones of the case and then summarize the threat to our Constitution.
Summary of the Altercation
George Zimmerman, a 28 year old Hispanic neighborhood watch coordinator within a gated community in Sanford Florida, had an altercation with Trayvon Martin, a 17 year old black high school student who was residing within that community. The altercation occurred on February 26, 2012 and ultimately resulted in a lethal use of force. Mr. Zimmerman discharged his weapon amidst the struggle which had ensued and Trayvon Martin was mortally wounded.
On March 12, 2012, Police Chief Bill Lee turned the investigation over to the State Attorney’s office for review. He stated that Zimmerman had alleged self-defense and that unless probable cause could be shown to dispute that statement, the state had no cause for arrest. On March 13, 2012, Chris Serino, the lead investigator, filed a capias request, recommending that the State charge Zimmerman with negligent manslaughter, although he was doubtful that sufficient evidence existed to prosecute. Apparently both law enforcement officer’s opinion was confirmed by the State Attorney’s Office as they did not file any charges at that time.
By-Passing the Grand Jury
On March 20, 2012, State Attorney, Norm Wolfinger declared his intention to convene a grand-jury on April 10th to investigate and decide if an indictment should be handed down. Simultaneously, the Justice Department opened a Civil Rights investigation. Meanwhile, Governor Rick Scott, asked the Florida Department of Law Enforcement to investigate. On, March 22, 2012, Governor Rick Scott assigned State Attorney Angela Corey to the case. She promptly decided that her office would decide whether or not to press charges stating, “I always lean towards moving forward without needing the grand jury in a case like this, I foresee us being able to make a decision, and move on it on our own.” On April 11th, George Zimmerman was charged with 2nd degree murder. On July 13, 2013, the jury found the defendant not guilty.
According to CNN’s, State of the Union, broadcast last week, The National Association for the Advancement of Colored People are pushing for federal action. Ben Jealous, President of the NAACP, is pushing for US Attorney General Eric Holder to pursue a hate crimes charge against Mr. Zimmerman.
A Triple Threat To All Americans
What are the police powers of the Federal Government? Let us look into the Constitution:
Article I Section 8 paragraph 6
The Congress shall have the power… To provide for the punishment of counterfeiting the securities and current coin of the United States.
The Congress shall have the power… To define and punish piracies and felonies committed on the high seas, and offences against the law of nations.
Article 3 section 3
Treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.
In summary, all laws that seek to create federal crime out of certain behavior not associated with counterfeiting, piracy or Treason are unconstitutional. The “law of nations” refers to laws governing the acceptable treatment of one nation regarding another so that clause would not apply to the actions of the civilian population. Even the impeachment power of the Federal Government holds no criminal authority. Impeachment is simply a governmental procedure for removing a member from government. Any criminal proceedings associated with an impeachment are handled by the appropriate authorities, and are sometimes but not necessarily a federal criminal case. Therefore, it is an abuse of power for the federal government to classify a whole host of new federal crimes including hate crimes. These suggested laws should be considered at the State level.
Threat #1: There is no justification for the Federal Government to assume original jurisdiction with regard to an act of violence committed by one citizen against another within the boundaries of a state.
Threat #2: In the Trayvon Martin case, an indictment of a grand jury was never handed down.
Threat #3: Even so, a trial was held and a jury of peers rendered a verdict. From a legal perspective, the case is settled and any subsequent indictment based upon the same offense would violate the protection against double jeopardy. The 5th Amendment applies …
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.
Nullification is not only a legitimate remedy against federal over-reach, it is the rightful remedy and the only peaceful solution that was specifically endorsed by both James Madison and Thomas Jefferson. So, the author of our Constitution and the author of the Declaration of Independence agree. Each State must act as the final arbiter when the three branches of the federal government refuse to acknowledge the limits placed upon it by the several states. One need not seek permission within the Constitution to uphold the Compact. Like any other contract, the parties involved have a duty to ensure that it is adhered to. The supremacy of federal law does not apply to legislative acts which are, in themselves, unlawful. Such acts should not be dignified with the title of law.
Specific Nullification Measure in Pennsylvania
Support Pennsylvania House Bill 357, the Right to Bear Arms Protection Act, which seeks to establish that “any Federal law which attempts to register, restrict or ban a firearm or to limit the size of a magazine of a firearm in this Commonwealth shall be unenforceable in this Commonwealth; and imposing penalties.”
The Right to Bear Arms Protection Act (RBAPA) would nullify any new federal restrictions, whether passed by Congress or by presidential executive order, on firearms and/or magazine clips. Included in the RBAPA are criminal penalties on federal agents attempting to enforce any such federal restrictions and/or attempting to confiscate firearms or magazines. Washington’s anti-gun laws would not just be null and void in Pennsylvania, but attempts to enforce them within the state’s borders would be illegal.
In recent years dozens of states have introduced nullification-type legislation to stop Real ID, affirm the Tenth Amendment, reject a federal mandate to buy healthcare insurance, and to reject federal firearm laws for guns manufactured, sold, and used intrastate (known as Firearms Freedom Acts or FFA). In 2012 a total of eight states passed FFAs.
Contact The PA General Assembly: http://www.legis.state.pa.us/cfdocs/legis/home/member_information/contact.cfm?body=H
Contact the PA Senate Requesting companion legislation be introduced into the Senate: http://www.legis.state.pa.us/cfdocs/legis/home/member_information/contact.cfm?body=S
Note JULY-SEPT: The Legislature reconvenes September 23, 2013. Correspondence should concentrate on local office addresses and it is a good time for local office visits.
The Case For Nullification
States Should Enforce The Constitution Not Revise It !
State vs. Federal: Nullification
Nullification by Thomas E. Woods (Book Review)
State Nullification Bills Flourish in 2012
States’ Rights: The Foundation of Federalism
About John C. Calhoun
My Earlier Blog Posts:
In order to understand the notion of Nullification or Interposition, it is helpful to know some history regarding the establishment of the American Colonies and how they came to be Independent Sovereign Nations. It is this sovereignty that is exercised when nullifying federal “law”. Here follows a much abbreviated summary of the major colonies of America, the origins of their Sovereignty, their jealous desire to maintain that Sovereignty, and a look at the major clauses and constructs used in their legislation to protect their Sovereignty:
Originally, all of the American territory was referred to as Virginia. The name was derived from Queen Elizabeth, the virgin queen. The first English child born on American soil was Virginia Dare. She was the child born of Ananias and Ellinor Dare of Roanoke Island in 1587. In 1606, charters were formed establishing the London and Plymouth Companies. These companies financed the settlement of ”Virginia”. Plymouth Company was assigned Northern Virginia (Ultimately New England) and London Company was assigned lands proximate to the Chesapeake Bay. The Plymouth Company first attempted a colony in what is present day Maine, however that attempt was short-lived. The London Company settled in Jamestown along the James River and cultivated the first permanent settlement in what is now the United States.
From approximately 1619 through 1639, Virginia established legislative assemblies to represent the various plantations (aka settlements) and to govern along side the Governor. These assemblies ultimately developed into the House of Burgesses. This experience laid the initial format by which British Colonies would be organized and run. The colonies would establish their own laws. Their laws would reflect English law. The Colony would be an economic benefit to the Mother Country.
In 1620, the Plymouth Company settled in Massachusetts. Apparently they settled further north than their charter had designated and so a new charter was drafted in 1629. After initial hardships the colony was eventually able to produce enough to buy out their English benefactors and establish a degree of independence.
In 1629, The Massachusetts Bay Company obtained a Royal Charter from the King. The Puritans had been under persecution by King Charles I and the opportunity to flee to America was popular amongst them. The Royal Charter was slightly different from earlier charters in that it did not stipulate that the company must meet in England. Both the charter and the company migrated to America and operated independent of the crown. So the two most prominent settlements in early New England had early established a tremendous degree of self-determination.
The Puritan influence within the Massachusetts Bay Colony government was ripe for dissent. Dissidents were often exiled, and a series of new colonies resulted in this fashion.
Connecticut was established in 1639 with the drafting of the Fundamental Orders of Connecticut. This was an off-shoot of the Massachusetts Bay Colony and is credited as being the first written Constitution in the New World.
Providence and Rhode Island Plantations
Likewise, Roger Williams was exiled from Massachusetts and established Providence in 1636, while Anne Hutchinson settled her splinter group in Rhode Island. In 1663, these settlements were united.
The charter for Maryland was issued to the Calvert family. They were Catholics and deigned to provide a haven for the Catholic faith in the Americas. Prospects for Catholic settlers were limited, so the predominant settlers were of the protestant sect. Maryland was settled as a feudal society. Cecilius Calvert was Lord Baltimore and had ultimate governing rights but was restricted in that the laws of Maryland would need to reflect British law. Manors were established with courts and freeholders, taxing privileges, etc. Maryland established religious toleration among Christian denominations.
New York and New Jersey (aka New Netherlands)
The Dutch actually established the first settlements in present day New York and New Jersey. The English considered Holland to be intruders. It was not until 1664 when King Charles II granted land rights to the Duke of York that England laid claim to New York, New Jersey and parts of Connecticut. The stipulation, however, was that the Duke would need to wrest control of the area from the Dutch. He allowed the Dutch to retain their property, allowed religious tolerance, gave his Connecticut land grant back to the Puritans who had settled it and split New Jersey from New York.
Pennsylvania & Delaware
William Penn was granted the colony that became known as Pennsylvania by King Charles II. The Duke of York ceded a portion of his land grant to William Penn which would ultimately become Delaware. Early Pennsylvania colonists were Swedes, Dutch, Danes and some Puritans from New Haven. The Quakers were an off-shoot of the Puritans and highly persecuted in England. Pennsylvania established religious toleration.
North and South Carolina plus a portion of Georgia were granted to eight proprietors of Nobility. Settlement was slow and great distance lay between the primary settlements in the north and south. The result was that the government of these two colonies remained distinct throughout their development.
The settlement of Georgia might best be described as a royal boondoggle. The initial grant went to 20 proprietors who operated the settlement as a philanthropic (non-profit) venture. The legislature in England appropriated subsidies repeatedly and the proprietors lost interest in the failed venture even before the 21 year charter had expired. Georgia became a Crown Colony and lost most of its population as dissatisfied settlers migrated to other settlements in neighboring colonies where they found laws more favorable and advantageous.
The Sovereign States
In June of 1776, Richard Henry Lee of Virginia proposed the famous Lee Resolution in which we find a declaration of Sovereignty of the individual states. Recognizing that these small states would require foreign alliances (Foreign Aid) to battle the world’s leading military power, a confederacy was proposed that would assist the various states in the prevention of their becoming prey to the foreign nations which may provide the needed aid. Until this time, hostilities between Great Britain and the Colonists were centered on a defense against tyranny with the hope of reconciliation.
Resolution introduced in the Continental Congress by Richard Henry Lee (Virginia) proposing a Declaration of Independence, June 7, 1776
Resolved, That these United Colonies are, and of right ought to be, free and independent States, that they are absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain is, and ought to be, totally dissolved. That it is expedient forthwith to take the most effectual measures for forming foreign Alliances. That a plan of confederation be prepared and transmitted to the respective Colonies for their consideration and approbation.
The Declaration of Independence was drafted as proposed and its preamble further defines this Sovereignty.
Preamble to the Declaration of Independence
When in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The preamble clearly defines the Sovereignty of these independent states as separate and equal to that state with whom they are separating. In other words, Virginia was a state in the same sense as the State of Great Britain. This concept is further reiterated in the summation at the end of the document in which we find:
Declaration of Independence
We, therefore, the representatives of the United States of America, in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies solemnly publish and declare, That these United Colonies are, and of right ought to be, FREE AND INDEPENDENT STATES; that they are absolved from all allegiance to the British crown and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right do. And for the support of this declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our lives, our fortunes, and our sacred honor.
Now in order to make this declaration stick, the War for Independence was fought. In the course of this war, the colonies exercised all these rights. They levied war, they contracted alliances, they traded amongst themselves and with foreign nations, and finally concluded a peace. As victors in the war they obtained a confirmation of their declaration from the Crown itself in which all the principle parties were named:
His Brittanic Majesty acknowledges the said United States, viz., New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South Carolina and Georgia, to be free sovereign and independent states, that he treats with them as such, and for himself, his heirs, and successors, relinquishes all claims to the government, propriety, and territorial rights of the same and every part thereof.
Roughly 18 months prior to this peace Treaty, the Articles of Confederation which Lee had proposed was ratified. The colonies maintained their sovereignty within this confederacy which they dubbed: “The United States of America”.
Articles of Confederation : March 1, 1781
I. The Stile of this Confederacy shall be “The United States of America”.
II. Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.
So, there can be no doubt that the 13 original colonies operated as independent sovereign states from the time of its official declaration in 1776 thru the war for independence and all the years up until 1789 under the Article of Confederation. All that is left to demonstrate is that the states retained their sovereignty when the Constitution was ratified. If this can be established, then the states which are party to the Constitution may rightfully exercise that sovereignty in the face of federal overreach and abuse of power.
Sovereignty Retained in the Ratification of the Constitution
Naturally, in order to establish a more perfect union, the Articles of Confederation required amendment and the states felt compelled to relinquish some degree of autonomy. A study of the constitution and the convention itself demonstrates the struggle that the representatives of the various states under went in their attempt to determine how much power to delegate to a central government. The key to understanding that the states intended to retain sovereignty is in the language they used in drafting the instrument. They used words such as “granted”, “enumerated”, “delegated”, etc.. The preamble lists the 6 reasons for adopting the constitution:
The Preamble of the Constitution
We, the people of the United States,
- in order to form a more perfect Union,
- establish justice,
- insure domestic tranquility,
- provide for the common defense,
- promote the general welfare,
- and secure the blessings of liberty to ourselves and our posterity,
do ordain and establish this Constitution for the United States of America.
Article I defines the power of Congress. It starts by establishing that all Legislative Powers, herein granted, are vested in a Congress of the United States… Then it defines the congress as being bicameral, or consisting of two parts, a House and a Senate. So we know that federal law will be made only by the congress. We also know that the use of the term “herein granted” indicates that there are legislative powers not granted to the congress, that is, reserved by the states. In section 8 of Article I there are 18 specifically enumerated (granted) powers. Section 10 of Article I lists specific areas in which the states have agreed not to exercise certain powers and to avoid certain abuses of power which were once suffered under the British Crown. In order to agree not to exercise certain powers, they obviously have authority to do these things, but are delegating this power to the central government with the exception of the few clauses prohibiting abuses of power which I will place in bold. These voluntary restrictions are:
1. No state shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.
2. No state shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any state on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress.
3. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in a war, unless actually invaded, or in such imminent danger as will not admit of delay.
The Constitution, itself, then further recognizes the Sovereignty of the several states in Article IV when it states:
Article IV Section 4
The United States shall guarantee to every state in this union, a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive (when the legislature cannot be convened), against domestic violence.
During the ratification process, several state delegations debated the potential effectiveness of this proposed constitution. Those in favor were referred to as Federalists. Those opposed were referred to as anti-Federalists. Those in opposition feared that the constitution delegated too much authority to the central government. Others, jealous of the liberty they won, wanted no central government at all. It was agreed that a Bill of Rights should be added to the Constitution describing specific rights which the people retained as a sentinel to awake a slumbering populace in the event of future overreach by the new government. Some of the federalists were against this idea, because they saw no reason to list prohibitions against actions which were not enumerated in the document and feared that listing them might enable abuses against rights not listed in the Bill of Rights. The ninth and tenth amendments were added in order to overcome this potential trap. The ninth and tenth amendments tell us a great deal about the relationship between the states and the general government, reaffirm the sovereignty of the states, and describe how the entire document is to be viewed. The ninth deals with the problem of enumerating only a short list of rights, clarifying that other rights not listed are also protected.
Ninth Amendment to The United States Constitution
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
The tenth amendment is extremely instructive. It demonstrates that the scope of the power of the new government is constrained by the 18 specifically delegated powers in Article I section 8 and the list of prohibitions in Article 1 section 10; the very clauses already discussed above.
Tenth Amendment to The United States Constitution
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
The General Welfare Clause
The term “general welfare” is often used to justify the expansion of federal power. An honest look at the use of this construction within the document itself illustrates that this term is used as a descriptor not a grant of power. “General Welfare” is used twice in the United States Constitution. First it appears in the preamble as a goal or reason for the adoption of the instrument, namely to “promote the general welfare”. This term “general welfare” is opposed to the welfare of a specific state. In other words, the goal is to operate a general government in which the welfare of all the states may be promoted. The government must not be exercised as a means to gain advantage for one state at the expense of another. In Article 1 Section 8 paragraph 1 we see the term again:
The Congress shall have the power To lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States …
Once again, “general welfare” is used to describe the reason for taxation and tariffs, namely the welfare of all the states, as opposed to the benefit of one specific state over another. Anyone familiar with the history of the Article of Confederation, knows that tariffs were not always universally beneficial to all states. This same issue would be revisited under the Constitution in the years leading up to our Civil War.
The Necessary and Proper Clause
Another clause that has been used to expand federal power is the “necessary and proper clause”. This clause is found in Article 1 Section 8 paragraph 18:
To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.
It has been argued that the Congress can legislate in areas it deems necessary and proper. This is a weak argument indeed. If one reads this carefully, one is struck by the fact that the necessary and proper clause is immediately constrained by the phrase “for carrying into execution the foregoing powers” and it speaks of “vested powers“. Clearly, this clause is not an expansion of power. It is simply a descriptive clause that seeks to illustrate why certain laws may be written.
The Commerce Clause
The commerce clause has been stretched beyond recognition in an attempt to justify the 20th century welfare state. In order to understand what the commerce clause says, we should look at the definition of the word “commerce” at the time of ratification to guard against adopting a more modern sense of the term. Then we can place it within it’s context and make some general conclusions.
Noah Webster’s 1828 Definition of “Commerce“:
- In a general sense, an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick. Commerce is foreign or inland. Foreign commerce is the trade which one nation carries on with another; inland commerce, or inland trade, is the trade in the exchange of commodities between citizens of the same nation or state. Active commerce.
- Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.
- Familiar intercourse between the sexes.
- Interchange; reciprocal communications; as, there is a vast commerce of ideas.
- To traffick; to carry on trade.
- To hold intercourse with.
And looks commercing with the skies
Noah Webster wrote his dictionary to capture the definitions of the words in use at the time of the ratification of the Constitution. He understood that a language is alive and he wanted to preserve the meaning of words at that point in time so that posterity would have recourse in determining the actual intent of the Constitution. In his amended 1828 version, the final version he personally compiled, we find commerce as a noun and as a verb. The commerce clause uses the word commerce as a noun. The very first definition that Noah Webster provides is sufficient. “an interchange or mutual change of goods, wares, productions, or property of any kind, between nations or individuals, either by barter, or by purchase and sale; trade; traffick.”
The Commerce Clause: Article 1 Section 8 paragraph 3
The Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes:
Now, lets look at the context in which this word is used. It is now obvious that the framers intended that the commerce clause apply to trade among the states. The Indian Tribes were Sovereign Nations as are Foreign Nations and also the states as parties to this constitution are Sovereigns. A domestic application of this clause beyond the regulation of the manner in which the states treat each other in matters of trade is an abuse of the original intent of the clause. Those who would justify the regulatory monstrosity that is directed by the executive branch of our government are either misguided or ill intentioned.
The Supremacy Clause
Finally, we are told that states cannot defy federal law because federal law is Supreme. Well, in a certain sense this is true, however, nullification does not promote defying federal law. It promotes the nullification of attempts at law. In other words, nullification is the process by which states refuse to adhere to an invalid legislative act. The state is declaring that no law exists because it is an attempt to exercise power not delegated. Here is the Supremacy Clause:
The “Supremacy Clause ” of the U.S. Constitution is contained in Article VI:
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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
First let us demonstrate that there are two different constitutions mentioned in this clause. It opens with the term “This Constitution” which refers to the Constitution of the United States. It also mentions near the end: any Thing in “the Constitution” or Laws of any State to the Contrary notwithstanding. “the Constitution” is referring to individual state constitutions. So the clause clearly states that federal law trumps state law, but the terms “made in Pursuance thereof” and “under the Authority of the United States” serve to illustrate that the legislative act must be legitimate in order for it to be supreme. A legislative act which is null or un-Constitutional, is not a law and cannot hold the status of Supremacy.
If one wishes to understand more fully how the colonist viewed legislative acts, I recommend reading the Declaration and Resolves of the First Continental Congress of October 14, 1774. It illustrates clearly, that lawful bodies do not always act lawfully and that free men are duty bound to Petition their Government for a Redress of Grievances and to nullify unlawful acts and even take up arms when necessary to correct abuses. Since these United States are organized into free Republics, our first and rightful remedy is for our States to interpose on our behalf and nullify unlawful acts of Congress.