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Treaty Power and The Supremacy Clause

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Does Treaty Law supersede the Constitution?
While this notion that Treaty Law supersedes the constitution seems counter-intuitive to the layman, many legal scholars seem to agree that treaties are the supreme law of the land; and therefore, it follows that treaties supersede the constitution. Let’s take a closer look at the wording and intent of the authors of the “Supremacy Clause”. Does it logically follow that supremacy implies non-constraint?

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.

Analysis
Let’s break-down the simple wording here and shed some light on its meaning and construct. This clause contains 4 principal parts the fourth part of which can be subdivided into two sub-parts.  Parts 1 and 2 are the subjects of the clause, part 3 is the action whereas part 4 is the object acted upon. The object is described as the impact of the action upon both the judicial and legislative branches of the several states.

Part 1: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof;
This clearly indicates that all federal law, assuming it conforms to the grant of power contained in the constitution, is the supreme law of the land. Notice, however, that the clause is constrained by the notion that the laws must be “in Pursuance thereof” or in conformity with the existing framework of the constitution. This is a prime example of Supremacy which is constrained.

Part 2: … and all Treaties made, or which shall be made, under the Authority of the United States
At first glance one notices a strange construction in part two which describes two sets of treaties. This statement seeks to explicitly define the supremacy of both existing treaties and future treaties. The framers had every intention of honoring existing treaties which were entered into prior to adoption of the Constitution. This was important because it included the peace treaty which ended hostilities during the War for Independence with Great Britain. So we see that past treaties made could not have been “made in Pursuance” of the Constitution but they were ratified under the Authority of the “United States” since this entity existed under the Articles of Confederation and would remain so under the new Constitutional framework. The framers were intent upon enforcing the treaties entered into under the Articles of Confederation and this is why Federal Law and Treaty Law are defined within a complex construct within this clause. It is clear that all future treaties would continue to be constrained by the proper “Authority of the United States”. Where is the “Authority of the United States” defined? Is that not the sole purpose of the Constitution? The Constitution itself must not be superseded by a treaty because a treaty must be executed under proper authority.

Part 3: … shall be the supreme Law of the Land;
It is clear that the framers intended that the states would abide by all proper laws and treaties.

Part 4: … and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The legislatures of the states, the constitutions of the states, and the judiciary of the states would agree to abide by federal law and treaty law, provided that the laws were in “pursuance of the constitution”  or in today’s terms “constitutional” and that treaties were either made within the framework of the constitution or pre-existed it. Notice the distinction between “the constitution” in part 4 and “This constitution” in part 1 of the clause. The framers are drawing a distinction between the constitution they are drafting and the various existing constitutions which each state was currently operating under. So it is clear that the state constitutions would conform to federal law and treaty law, provided they were enacted within the grant of power defined in the Federal Constitution of which the states were party to ratification. The States would also continue to abide by treaties currently in affect prior to adoption of the federal constitution under debate.

Where does the notion that Treaty Law Supersedes the Constitution Originate?
It is difficult to know where this myth originated, however, we have an early reference to it. It is entirely justifiable to say that this notion may not have originated with John Foster Dulles, however, it was certainly popularized by his attitudes. Ideas have consequences:

John Foster Dulles

Time’s Man of the Year 1954

“The treaty making power is an extraordinary power liable to abuse. Treaties make international law and they make domestic law. Under our Constitution treaties become the supreme law of the land. They are indeed more supreme than ordinary laws, for Congressional laws are invalid if they do not conform to the Constitution whereas treaty laws can override the Constitution. Treaties for example, can take powers away from the Congress and give them to the President; they can take powers from the state and give them to the Federal Government or to some international body and they can cut across the rights given to the people by the Constitutional Bill of Rights.”
John Foster Dulles (April 12, 1952)
Louisville, Kentucky
(Secretary of State Eisenhower Administration)

 Clearly, Mr. Dulles was attempting to exploit a populace unfamiliar with the Constitution. The very fact that he asserted that rights are “given to the people by the Constitutional Bill of Rights” is evidence enough that he was attempting to contort the meaning of the Constitution. Afterall, the Constitution does not give rights, it acknowledges and protects God-given Rights. That is an important distinction because rights given by government can later be withdrawn, but our Bill of Rights asserts that “Congress shall make no law” which would seek to undermine or diminish the natural rights of its citizens.

I have already shown that Mr. Dulles’ interpretation of the Treaty-Making power of our Government is false. However, I am not alone in my opinion. The framers of this clause spoke to its intent. So here are some words from the authors and ratifiers:

James Madison

James Madison

I do not conceive that power is given to the President and the Senate to dismember the empire, or alienate any great, essential right. I do not think the whole legislative authority have this power. The exercise of the power must be consistent with the object of the delegation .
— James Madison, “Father of the Constitution”  from Elliott’s Debates

Thomas JeffersonBy the general power to make treaties, the Constitution must have intended to comprehend only those objects which are usually regulated by treaty, and cannot be otherwise regulated…. It must have meant to except out of those the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.
— Thomas Jefferson
 A Manual of Parliamentary Practice, p. 110. 1873.

I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution.
— Thomas Jefferson
 a letter to Wilson Cary Nicholas The Works of Thomas Jefferson, September 7, 1803

Alexander Hamilton

Alexander Hamilton

The only constitutional exception to the power of making treaties is, that it shall not change the Constitution…. On natural principles, a treaty, which should manifestly betray or sacrifice primary interests of the state, would be null.
— Alexander Hamilton
Alexander Hamilton and the Founding of the Nation (1957), Richard B. Morris

 “A treaty cannot be made, which alters the Constitution of the country or which infringes any express exceptions to the power of the Constitution of the United States.”
— Alexander Hamilton

And finally, further evidence in support of my opinion is found in the Supreme Court.  The United States Supreme Court in Reid v. Covert (1957) first quoted the Article VI, Section 2 supremacy clause I quoted above, then the Court declares:

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result…. The prohibitions of the Constitution were designed to apply to all branches of the National Government and they cannot be nullified by the Executive or by the Executive and the Senate combined.

Also The United States Supreme Court in Geofroy v. Riggs, 133 U.S. 258, 267 , declared:

The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”

In addition,  Treaty Law does not necessarily Supersede Federal Law. According to the US Supreme Court in Whitney v. Robertson, 124 U.S. 190 , the Court stated:

“By the Constitution a treaty is placed on the same footing, and made of like obligation, with an act of legislation. Both are declared by that instrument to be the supreme law of the land, and no superior efficacy is given to either over the other…. [I]f the two are inconsistent, the one last in date will control the other….”

Reference: 1987 Treaties and the Constitution.pdf
Reference: 1992 Treaties Versus the Constitution.pdf
Reference: 1997 No Amendment Needed.pdf
Reference: 2001 Treaties and the Constitution.pdf
Reference: 2009 Lord Monckton, Copenhagen Treaty.pdf

Video Reference:

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Written by federalexpression

September 9, 2011 at 3:25 pm

Pennsylvania Pending Legislation

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Our Service

As a service to liberty-minded individuals within Pennsylvania, FederalExpression is launching a service providing information about pending bills in the Commonwealth of Pennsylvania. We will provide a list of bills we perceive to be important, We will summarize, give our recommendation and our reasons. When possible we will provide sample letters that our readers may use in part or in whole, changing or ignoring portions at will. We will not always provide the bill’s current status, however we will try to provide links to the Assembly website that will provide that info automatically.

 

Your Participation

From time to time, this service will announce a campaign to push or oppose legislation that we think is critical. We hope that we will attract enough interested activists across the state to make a real impact in the progress of some legislation. We fully understand that our reputation will be a key factor in our effectiveness. Therefore, we want your input. We want to know when you agree, when you disagree and when there is a bill of interest to you that is not listed. We also want you to pass our information and links to your acquaintances. This is a great opportunity for various liberty-minded groups to pool efforts in concert and in a timely manner to protect and increase liberty in Pennsylvania. There may be times when we must agree to disagree, however, there will be many opportunities to act together on an issue.

Ways to Participate:     ***      Sign up for our Newsletter !!!    ***

  1. Use our Act Now links under each piece of legislation or use the Quick Links Section. It will take you to a form for submitting pre-written position statements to your representatives.
  2. Alternatively, you may adapt our sample letters to your use and send them independently. You can Use this tool to locate addressees: Find Your Legislator
  3. Help us build a network of concerted activists across Pennsylvania:
    1. Sign up for our Newsletter
    2. include your name & Address
    3. use an email address that can receive replies
    4. optional: provide a phone number and/or fax number if you wish
  4. Reach out to your friends and acquaintances and ask them to join the effort.
  5. Educate yourself and others using our links to pertinent information.
  6. Leave Comments or Send Me an Email: FederalExpression14@gmail.com

Just remember, The price of freedom is eternal vigilance.


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Quick Links To Online Letters:

You will find bill descriptions, bill status, sample letters & position statements plus additional self study resources provided in the following sections.

  1. General Common Core Opposition Letter To Your State Legislators
  2. To The Education Committee of the PA General Assembly Supporting PA HB-1551 thru HB-1553
  3. To Your PA Legislators Supporting PA HB-1551 (details)
  4. To Your PA Legislators Supporting PA HB-1552 (details)
  5. To Your PA Legislators Supporting PA HB-1553 (details)
  6. To Your PA Legislators Opposing PA HB-1554 (details)
  7. To Your PA Legislators Supporting PA HB-1757 (details)
  8. Tenth Amendment Warantless Drone Spying: PA HB2158 (details)
  9. To Your PA Legislators Supporting PA HB-357 (details)
  10. To Your PA Legislators Opposing PA HR-293 (details) & PA HR539 (details)
  11. To Your PA Legislators Opposing PA HB-1182 (details)
  12. To Your PA Legislators Supporting PA  HR-652 & HR 672 (details)

 

EDUCATION:  

The best approach to solving our education issues “once and for all” would be to re-establish a free enterprise education market in Pennsylvania, eliminating the state from participation. At that point, your local community could provide public schooling or communities could opt to retain parental authority over schools, maintain a complete privatization of local schools and parental development of all curriculum. One of the main arguments against this idea is that the poor cannot afford private education. My response is: 1) The cost of public education on a per pupil basis is often many magnitudes greater than that of private schools. 2) Private schools are not normally subject to political pressures, corruption and litigation as are state-run schools. 3) Student performance and actual literacy rates in public schools are generally much lower than that of their private counterparts. 4) The tax savings to the general, public will fuel the economy and will most likely create opportunities to lower income individuals in the form of higher wages and scholarships or private aid. 5) Some local communities will, undoubtedly decide to provide free public education and those programs will be forced to compete with surrounding systems which will help to maintain their integrity. 6) It is wrong to tax everyone to provide a service to a small portion of the community.

Common Core: Common Core is a K-12 set of national education standards for English language arts and mathematics classes that was developed by Achieve Inc., and promoted through the National Governors Association and the Council of Chief State School Officials, both of which are private-Washington DC based trade organizations. A majority of states signed on to Common Core when they signed up for the Department of Education’s “Race to the Top” program in 2009 and 2010. Common Core’s English and math standards were not yet written at the time, thus these states never saw the standards when they agreed to them. These standards are copyrighted and thus cannot be changed.

As a result of the poor quality of Common Core’s English Language Arts (ELA) standards, Dr. Sandra Stotsky, of the University of Arkansas, who served on the Common Core Validation Committee, refused to sign off on them. Dr. James Milgram of Stanford University, the only mathematician on the Common Core Validation Committee, refused to sign off on Common Core’s math standards, stating, “It’s almost a joke to think students [who master the Common Core standards] would be ready for math at a university.” Minnesota has refused to sign on to the math portion

In addition to Minnesota, other states have become aware of the adverse effects of Common Core. Alaska, Nebraska, and Texas refused to participate. Indiana, Missouri, and Utah have passed legislation to review Common Core and/or to hold hearings to pull out of it. Virginia has already withdrawn and most recently Oklahoma and S.Carolina have rejected it For the latest information on the State response to Common Core see the Truth In American Education Website: http://truthinamericaneducation.com/common-core-state-standards/states-fighting-back-map/

Resources:

Act Now: General Common Core Opposition Letter


PA Bill

Bill Title / Description

HB 1551

An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, requiring approval for implementation of Common core state standards; and abrogating regulations.

Support

We feel that parents should have a voice regarding School Standards. One way to accomplish this is to require a legislative act from our elected representatives before the Board of Education can approve any new standards. This legislation would be better if it included language encompassing “any” changes to the standards, but it will help to combat the Common Core threats that currently exist. A free market approach to education would be even better.

ACT NOW:

Send A Message To The Education Committee

Send A Message to Harrisburg

Current Status
Sample Concerted Action Letter

 

PA Bill

Bill Title / Description

HB 1552

Amending the act of March 10, 1949 (P.L.30, No.14), entitled “An act relating to the public school system, including certain provisions applicable as well to private and parochial schools; amending, revising, consolidating and changing the laws relating thereto,” in preliminary provisions, prohibiting imposition of common core standards.

Support

This bill prevents Common Core from being forced upon non-state run schools. While it troubles me greatly that the Commonwealth of Pennsylvania is allowed to legislate at all in matters related to private education, this bill would at least help to fend off Common Core. Obviously, it would be best if the state was prohibited from regulating private schools.

ACT NOW:

Send A Message To The Education Committee

Send A Message to Harrisburg

 Current Status Sample Concerted Action Letter

 

PA Bill

Bill Title / Description

HB 1553

An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, providing for national standardized assessments and surveys prohibited.

Support

This bill prevents National standardized testing and National Surveys. This bill would help prevent the Federal Government from assessing progress on any attempts at implementing a national or international curriculum in Pennsylvania.

ACT NOW:

Send A Message To The Education Committee

Send A Message to Harrisburg

Current Status Sample Concerted Action Letter

 

PA Bill

Bill Title / Description

HB 1554

An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, in preliminary provisions, prohibiting the release of certain student data and library data.

OPPOSE

Will not protect student privacy. The memo and introduction on this legislation looks good on the surface, however, there seems to be some ambiguity within the text of the bill which would allow it to be used for purposes exactly opposite of that which it purports to accomplish.  We list references to some of the language which we find alarming and tie it back to a New American Magazine Article called “Feds Building Massive Common Core-linked Databases on Your Kids“. These references stood out to us in our review but there may be more problems. We think the list below is sufficient to recommend opposition to this legislation.

  1. Even if government were to keep the information private, the very existence of a ‘dossier’ is immensely intimidating and inhibiting. This alters both civil society and the private realm, and not in the direction of greater freedom.” (HB 1554 Pg. 1 Lines 13-18)
  2. Meanwhile, despite occasional protestations from the architects of the surveillance regime targeting America’s children that the data will be “anonymous,” the report points out that Big Data “makes anonymization of an individual student’s information practically impossible.” Even children being homeschooled or enrolled in private schools may be engulfed, the authors explain.  (HB 1554 pg. 2 lines 13-16).
  3. The report also calls on state lawmakers to pass laws protecting student privacy while recommending that Congress undo last year’s “gutting” of the Family Educational Rights and Privacy Act, or FERPA.  (HB 1554 pg. 3 lines 16-21).

ACT NOW:

Send A Message to Harrisburg

Current Status Sample Concerted Action Letter
Resource: Feds Building Massive Common Core-linked Databases on Your Kids
According to the House Co-Sponsorship Memoranda  Questions or concerns should be directed to:

Karen Updegraff at Kupdegra@pahousegop.com or 717-260-6117 and/or
Carol Hoffman at Choffman@pahousegop.com or 717 -783-8875.

I would recommend encouraging them on the 3 supportable measures and addressing concern over this one.


 

PA Bill

Bill Title / Description

HB 1555

An Act amending the act of March 10, 1949 (P.L.30, No.14), known as the Public School Code of 1949, in preliminary provisions, providing for establishment of advisory committee; and imposing a moratorium on implementation of Common Core Standards.

NO ACTION

This Bill imposes a moratorium on Common Core Implementation.
Although this places a moratorium on Common Core it also leaves the door open for approval of some or all of Common Core down the road. It also incurs expenses dealing with an issue that did not originate within the state. A better approach is to support HB1551, HB1552 & HB1553.

ACT NOW:

No Action Recommended 

Current Status
No Sample Letter

 

PA Bill

Bill Title / Description

HR 338

Resolution PASSED in the house, ensuring that PA’s educational standards should maintain their rigor and effectiveness.

NO ACTION

This is a meaningless resolution with no force of law. It misrepresents the process by which the Common Core State Standards were developed and delivered to our nation’s several states and it could be interpreted as an endorsement of the standards that have already been forced upon Pennsylvania. Furthermore, it references rigorous standards, but never defines metrics by which future standards would be considered rigorous and endorses the philosophy that the STATE should “ensure Pennsylvania’s academic standards are thoroughly rigorous and effective for all Pennsylvania students”; a philosophy which destroys parental supremacy over the education of their children. Still, there are some sentiments within this resolution which can be leveraged in support of other related bills.

INFO:

HR 338 opposes data mining (pg.4 lines 1-4) and any attempts at a national standardized assessment (pg.3 lines 22-25). It supports local control of education (pg.3 line 16) and the amendment of any regulations necessary to these ends. (pg. 4 lines 10-13) While it is only a resolution, it was approved by the very officials we are working to influence. Therefore, it make sense to use this resolution in support of meaningful legislation which will have the force of law.
Current Status No Sample Letter
Resource: Debunking the Myth that Common Core is State Led


 Bill of Rights:

PA Bill

Bill Title / Description

HB 1757

Protecting Pennsylvanians’ Privacy Act. An Act requiring a government entity to obtain a search warrant prior to obtaining location information of an electronic device; providing for exceptions; and imposing a civil penalty.

Support

Prevents any “government entity” from obtaining an individual’s location information from an electronic device without a duly authorized search warrant, makes this kind of data obtained without a search warrant inadmissible in court, and imposes a $50 fine for violating this act. See Amendment IV of the US Constitution – Bill of RightsNote: You may wish to suggest amending this bill to stiffen the penalties. It seems to us that a $50 slap on the wrist undervalues our unalienable right to be “secure in our persons, houses, papers, and effects, against unreasonable searches and seizures”.  An increase in the fine amount would remove the affordability of bulk abuses in the hopes of escaping the majority of the offenses and paying the bill with our own tax money. The fines should be paid by the offender and there should be jail time. Also, the offense should apply to abuses which originate outside the state if the intrusion involves equipment located within Pennsylvania or identifies a location within Pennsylvania.

ACT NOW:

Send A Message to Harrisburg

Current Status

Sample Concerted Action Letter
Resource: Tenth Amendment Center NSA Spying Info


PA Bill

Bill Title / Description

HB2158

Drone Use Restrictions: An Act amending Title 18 (Crimes and Offenses) of the Pennsylvania Consolidated Statutes, in wiretapping and electronic surveillance, further providing for definitions; and providing for drones.

Support

General rule.–Except as provided under subsection (b), no State or local government, department, agency or instrumentality having jurisdiction over criminal law enforcement or regulatory violations shall employ the use of a drone.  Subsection (b) allows for their use in conjunction with a properly issued warrant, life saving measures, disaster reconnaissance, training exercises associated with the exceptions etc.
See Amendment IV of the US Constitution – Bill of Rights

ACT NOW:

Join the Tenth Amendment Center Action Plan

Current Status Follow The 10th Amendment Center Instructions in the Link below
Resource: Tenth Amendment Warantless Drone Spying (HB2158)

 

PA Bill

Bill Title / Description

HB 357

Right to Bear Arms Protection Act.  An Act providing 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.

Support

Declares all laws, rules, regulations and orders that attempt to register, restrict or ban the ownership or purchase of a firearm, magazine of a firearm, firearm accessory or ammunition to be null and void by rendering them unenforceable and classifies such attempts to enforce as a felony offense. Penalties provide for up to 7 years imprisonment and up to $15,000 in fines. The Attorney General of Pennsylvania is declared duty-bound to interpose on behalf of a Pennsylvania citizen charged under these unenforceable acts. see  Amendment II of the US Constitution – Bill of Rights

ACT NOW:

Send A Message to Harrisburg

Current Status Sample Concerted Action Letter
Resource: Tenth Amendment Center Info


Federal Constitutional Amendments

Article V Constitutional Convention Calls: 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? Notice how the State Legislatures were bypassed in favor of Ratifying Conventions !

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 comes 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.

Resources:

PA Bill

Bill Title / Description

HR 293

Campaign Finance Reform. A Concurrent Resolution petitioning the Congress of the United States to call a convention to amend the Constitution of the United States on the subject of election spending.

OPPOSE

Key Points:
1. A Con-Con acts as the sovereign will of the people, as such it cannot be constrained by the authorizing legislation, nor the existing governmental framework it seeks to alter or abolish.2. The ratification process for any proposed plan can be altered and delivered within the proposal drafted.3. The Congress may be instrumental in determining many open-ended issues not specifically addressed by Article V as it is empowered to make all laws necessary and proper to bring into execution the powers of Article V.4. There is no guarantee that a Congress that will not be constrained by the existing Constitution will suddenly adhere to a new one.5. Our present condition is a result of not enforcing the Constitution, there is no great need to alter it, but rather to enforce it. This same problem will persist even if a new Constitution were to be drafted.

ACT NOW:

Send A Message To Harrisburg

Current Status Sample Concerted Action Letter

 

PA Bill

Bill Title / Description

HR 539

Free & Fair Elections. A Resolution petitioning the Congress of the United States, pursuant to Article V of the Constitution of the United States, to call for a Convention of the States to restore free and fair elections in the United States.are both resolutions calling for a Constitutional Convention, and should be opposed.

OPPOSE

Key Points:
1. A Con-Con acts as the sovereign will of the people, as such it cannot be constrained by the authorizing legislation, nor the existing governmental framework it seeks to alter or abolish.2. The ratification process for any proposed plan can be altered and delivered within the proposal drafted.3. The Congress may be instrumental in determining many open-ended issues not specifically addressed by Article V as it is empowered to make all laws necessary and proper to bring into execution the powers of Article V.4. There is no guarantee that a Congress that will not be constrained by the existing Constitution will suddenly adhere to a new one.5. Our present condition is a result of not enforcing the Constitution, there is no great need to alter it, but rather to enforce it. This same problem will persist even if a new Constitution were to be drafted.

ACT NOW:

Send A Message To Harrisburg

Current Status Sample Concerted Action Letter


National Popular Vote

The National Popular Vote movement seeks to create an alliance among states to pool their electoral votes in favor of the candidate that receives the majority popular vote across the nation. There are serious ramifications associated with this idea:

1) The constitutionality of this arrangement is questionable. According to Article 1 Section 10 clause 1 of the US Constitution:

No state shall enter into any treaty, alliance, or confederation …

However, Article 1 Section 10 clause 3 allows:

No state shall, without the consent of Congress … enter into any agreement or compact with another state

So, it appears a Judge will need to determine Constitutionality and then the state may need to acquire Congressional approval depending on how this contract is classified.

2) Under this arrangement, voters in a specific state that voted for a candidate that did not receive the majority of the popular vote, would have their vote stolen. The vote of that state would not result in the electors they chose, but rather, for the slate of electors representing a candidate that they did not vote for.

3) The transfer of electors from one candidate to another has a dual effect on the results. You are not only awarding a candidate with votes they did not earn but you are stripping those same votes from the candidate that was chosen.

The NPV movement has the audacity to claim “Every Vote Equal”. Changing state-wide election results based upon what happens in other areas of the country does not sound like “Every Vote Equal” to me. Apparently, in their minds, some votes are more equal than others.

At any time, a state that wishes to withhold their electors and award them to the national popular vote getter can do so if their constituents agree, however, this notion of building a block of voting states to force the rest of the nation into this dynamic is wrong. It will be offensive, no doubt, to some of the states and it can be accomplished with as few as 11 states.

Resources:

PA Bill

Bill Title / Description

HB 1182

An Act authorizing the Commonwealth of Pennsylvania to join the Agreement Among the States to Elect the President by National Popular Vote; and providing for the form of the agreement.

OPPOSE

Key Points:
1. Requires a court ruling to determine if this is a violation of Article 1 Section 10 of the US Constitution barring states from treaties, alliances and confederations 2. Can reallocate a majority of the votes of a state from one candidate to another based on how that candidate was perceived nation-wide. 3. Further alienates the states as sovereign entities from control over the government which they established. 4. Increases the potential damage to the electoral process in the case of fraud or a poorly managed election in another state. 5. Compromises the sovereignty of individual states.

ACT NOW:

 Send A Message To Harrisburg

Current Status Sample Concerted Action Letter

The Free Trade Agenda

“The Free Trade Agenda” should not be confused with the classical notion of free trade. “The Free Trade Agenda” has never been about trading freely. The Sovereignty destroying Free Trade partnerships are a preliminary step towards true Globalism. The globalist “New World Order” seeks an internationally controlled economy managed by unelected councils (or Soviets as they are called in Russian) whose influence extends beyond the borders of member nations. The object is to convert sovereign nations into member districts of an unaccountable Super government in which Multi-National Corporations partner with political puppets in a Global Fascists Dictatorship. This New World Order cannot be realized all at once. The Free Trade Agenda facilitates a step by step incremental regionalization process, whereby, blocks of nations establish regional agreements and establish regional councils and tribunals. The inter-locking nature of the various regions is to be revealed in the final phase.

The EU as a model.

If you doubt my assessment of the process described above, simply look to the European Union as a prime example. The EU is the ultimate result of the “Coal and Steel Community” established amongst six European nations after World War II. The scheme was supposed to help prevent further war, or at least that is what its proponents claimed. In the decades since 1952, however, the first real supranational body has morphed into an emerging super-state that will eventually obliterate national sovereignty, and inevitably individual liberty, if left unchecked. Former Maoist revolutionary and current European Commission President José Manuel Barroso declared in May 2013 that a federal Europe would be a “reality within a few years.”  In his “State of the Union Address” he stated: “We will need to move toward a federation of nation states. This is our political horizon,” he declared, adding that “unavoidable” changes to European treaties had to be made. “This is what must guide our work in the years to come.”

Those of you who are familiar with Norman Dodd’s quotation of Rowan Gaither (Ford Foundation, President 1953-1956) in which he stated that the foundation was working under directives from the White House to so alter life in America as to make it possible to comfortably merge the United States with the Soviet Union will recognize the Free Trade Agenda as a leading mechanism by which to accomplish this goal. A comprehensive study of the Free Trade Agenda is available in Arthur R. Thompson’s book International Merger by Foreign Entanglements.

PA Bill

Bill Title / Description

HR 652

A resolution urging the President & The Congress of the United States to consider the impact of free trade agreements on the American Economy.

Support

This resolution is critical of previous “free trade” agreements such as NAFTA and TTIP (although it gives the impression that the TTIP is a done deal which is not the case), and is skeptical regarding the TPP specifically. These types of “free trade” agreements should be opposed, and it is good for PA to make her voice known in opposition to them.

ACT NOW:

Tell Harrisburg To Oppose The Free Trade Agenda

Current Status
Resources: http://www.jbs.org/issues-pages/stop-the-free-trade-agenda

PA Bill

Bill Title / Description

HR 672

A resolution urging the The Congress of the United States to oppose S.1900 identified as the Bipartisan Congressional Trade Priorities Act of 2014 and all other Fast Track trade authority legislation that expands presidential authority beyond what is granted by the Constitution of the United States.

Support

TPA is a “fast track” to enactment of “Free Trade” agreements, authorizing the President of the United States to negotiate a treaty and sign off on it before Congress approves. When the President presents the agreement to Congress, it is only allowed an up or down vote on the agreement and cannot offer amendments. This is unconstitutional and deeply troubling. It is the duty of Congress to set the country’s trade policy, and they are not constitutionally authorized to delegate that power to the President. In fact, it is questionable whether a simple federal law is sufficient to provide for a multi-national trade agreement in the first place; this seems to require treaty law, which is to be ratified by 2/3 of the Senate before taking effect. In either case, TPA has no constitutional authority. TPA and all fast track legislation should be opposed, and the PA House’s attempts to voice her opposition should be supported.

ACT NOW:

Tell Harrisburg To Oppose The Free Trade Agenda

Current Status
Resources: ‘How the Free Trade Agenda Is Knocking Down America,’ Special Report of The New American (PDF)

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Written by federalexpression

June 11, 2014 at 3:37 pm

Posted in

Nullification Resource Page

with one comment


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.

NULLIFICATION RESOURCES:
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:
https://federalexpression.wordpress.com/2012/04/01/tom-woods-keynote-address-nullify-now-philly-2012/
https://federalexpression.wordpress.com/2011/02/15/nullification-or-interposition-an-overview/
https://federalexpression.wordpress.com/2013/06/09/nullification-the-colonies-as-sovereign-states-and-authors-of-their-destiny/

Written by federalexpression

June 26, 2013 at 12:36 pm

Nullification: The Colonies as Sovereign States and Authors of their Destiny

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Introduction
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:

Colonies-1763Virginia
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.

Massachusetts
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
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.

Maryland
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.

The Carolinas
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.

Georgia
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.

Richard Henry LeeThe 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:

Treaty of Paris: The Definitive Treaty of Peace September 3, 1783

Article 1:
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,

  1. in order to form a more perfect Union,
  2. establish justice,
  3. insure domestic tranquility,
  4. provide for the common defense,
  5. promote the general welfare,
  6. 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“:

COMMERCE, n.

  1. 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.
  2. Intercourse between individuals; interchange of work, business, civilities or amusements; mutual dealings in common life.
  3. Familiar intercourse between the sexes.
  4. Interchange; reciprocal communications; as, there is a vast commerce of ideas.

COMMERCE, v.i.

  1. To traffick; to carry on trade.
  2. 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.

Written by federalexpression

June 9, 2013 at 2:58 pm

State Senator Anthony H Williams Should Be Nullified

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I just read Senator Anthony H. Williams letter in response to the growing momentum behind House Bill 357 which would nullify attempts by the federal government to impose restrictions on the rights of law-abiding citizens within the Commonwealth of Pennsylvania to exercise their right to bear arms. The bill rightly, sends a message to the government in Washington that: 1) the Commonwealth intends to defend the natural right of its citizens to defend itself, and that 2) the Constitution of Pennsylvania is not subject to unlimited restrictions from the general government.

Senator Williams does not agree. His argument is fraught with deception and false platitudes. He presents a false argument in his opening sentence when he says:

The history and heritage of this great nation long has included a constant and vigilant dance between preserving individual freedoms and advancing social harmony.

Excuse me? What are you saying Senator? Am I to understand that there are times when preserving individual freedom is contrary to social harmony? No, your job is not to participate in some mystical dance or vigilant tight-rope walk! Your job is to defend the constitution of your state and the rights of its people.  After all, the purpose behind the constitution is the establishment of social harmony. Just do your job and the social harmony you speak of will be a matter of natural consequence.

This bill, which enjoys the support of over 75 co-sponsors is a reassertion of the rights of the States as codified in the Ninth and Tenth amendments of the federal constitution, however, Senator Williams finds it ludicrous to be part of a

… rising, and disturbing, national cognitive capture of nullification… based on severely flawed ideas and deserves immediate repudiation, if not condemnation

Senator, am I to understand that the ninth and tenth amendments are the severely flawed ideas of which you speak? Williams goes on to boast of his hometown’s prominent role in this nation’s establishment. He wants us to assume that he has a special insight into the foundation of our nation based solely on his nativity. He  pays a pretended homage to the Second Amendment and then pits it against common sense. Apparently, “The right of the people to keep and bear arms shall not be questioned.” (PA State Constitution) is not to be considered common sense in 21st Century Pennsylvania. He also seems to be under the delusion that “checks and balances” against the concentration of power in Washington is some how in opposition to the concept of “liberty and justice for all”. How is it sir, that liberty and justice can exist outside the confines of a duly erected, defined and defended constitution which establishes a framework under which our several governments must operate? How can serenity exist if chaos is allowed to proceed unchecked?

Senator, you speak of “allegiance to our nation and its operation”. I say, allegiance is a two-way street. We should bear true allegiance in so far as Washington operates within the confines of its enumerated powers. The American people established the general government through its states and reserved power unto itself. To the extent to which Washington recognizes its legitimate authority it is owed our allegiance. To the extent to which Washington seeks to abrogate the God-given rights of the people of Pennsylvania it is owed our scorn.

Senator Williams also believes the essence of the Supremacy Clause is:

Being part of the United States of America means we agree to being bound by federal laws set forth, whether our ideals are aligned with or repudiated by said laws.

The Senator conveniently omits that the Supremacy Clause includes the phrase “under the authority of the United States”. We are not bound by laws contrary to the authority granted the United States. Those powers not delegated to the general government are reserved to the people. No state ratified the Constitution under the premise that they would be bound by unconstitutional laws. Who is being ludicrous now?

In short Senator, there is no contradiction between your charge to “uphold the welfare of our neighbors”, the defense of the second amendment, “the advancement of social harmony” and HR 357. No, in fact, HR 357 and other nullification measures are required, since the Supreme Court refuses to recognize that our Federal Constitution is a grant of limited and well defined powers.

Residents in the 8th district of Pennsylvania should now take notice, that State Senator Anthony H. Williams is on record. He feels it is his duty for the sake of unity to compromise your liberty !

Written by federalexpression

June 2, 2013 at 3:04 pm

How The American People Lost Control of “The War Powers”

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It must be asked, How is it that the people have lost control of the war powers when the Constitution clearly stipulates that war must be declared by Congress? To answer this question, we need to travel back in time to the end of World War II. It is no coincidence that no declaration of war has been issued since the US entered the Great War. It so happens that the usurpation of the war powers began in earnest upon entry into the United Nations.

In 1945, Ambassador J. Reuben Clark, Jr., a scholar in the field of international law, prepared an analysis of the UN Charter. He concluded that the Charter “is a war document not a peace document,” and that it “is built to prepare for war, not to promote peace.”

[T]here is no provision in the Charter itself that contemplates ending war. It is true the Charter provides for force to bring peace, but such use of force is itself war…. Not only does the Charter Organization not prevent future wars, but it makes practically certain that we shall have future wars, and as to such wars it takes from us the power to declare them, to choose the side on which we shall fight, to determine what forces and military equipment we shall use in the war, and to control and command our sons who do the fighting.

This predicament could not be more alien to the intention of the framers of our Constitution. Here is what Alexander Hamilton said about the war powers in Federalist Paper #69.

Alexander Hamilton

The President is to be the “commander-in-chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States.

The President will have only the occasional command of such part of the militia of the nation as by legislative provision may be called into the actual service of the Union. The king of Great Britain and the governor of New York have at all times the entire command of all the militia within their several jurisdictions. In this article, therefore, the power of the President would be inferior to that of either the monarch or the governor.

The President is to be commander-in-chief of the army and navy of the United States. In this respect his authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command and direction of the military and naval forces, as first General and admiral of the Confederacy; while that of the British king extends to the DECLARING of war and to the RAISING and REGULATING of fleets and armies, all which, by the Constitution under consideration, would appertain to the legislature.

It is easy to see, then that the framers wished to divide the war-powers. The executive role was to be subordinate to the legislature. In this way, it was seen that either an attack by a foreign power or an act of the legislature would be required in order to break the condition of peace. The executive’s role was to restore the peace by use of the military either in defense of an attack or by commanding the armed forces granted to his use through a declaration of war. One also notices how the states retain their militias and the federal government has no permanent use of them. Here is a check against the military held by the several states. Unfortunately our militia system is dismantled and so a State’s check against a military tyranny from Washington, DC is no longer maintained.

To summarize the Constitution, the legislature makes war; the president makes peace. The Senate ratifies the terms of the peace.

Other Related Posts:
https://federalexpression.wordpress.com/2011/09/09/treaty-power-and-the-supremacy-clause/
https://federalexpression.wordpress.com/2011/02/08/the-us-constitution-vs-the-universal-declaration-of-human-rights/
https://federalexpression.wordpress.com/2011/04/26/get-us-out-of-the-un/
https://federalexpression.wordpress.com/2011/03/10/agenda-21-the-un-is-not-your-freind/

Written by federalexpression

March 12, 2012 at 3:53 pm

The Repeal Amendment

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This is part 3 of a series of discussions designed to point out the fallacies behind some modern Amendment ideas. As the drive towards a Constitutional Convention heats up, it is a good idea to examine the many Amendment proposals that are being discussed. The Repeal Amendment is being offered in response to legislation which is both wildly unpopular and places hardship upon the states. ObamaCare was a driving force behind this and Real ID plays no small part.

The Repeal Amendment states:


Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Although the Repeal Amendment seems like a healthy attempt to wrest usurped power from the federal government and return it to the sovereign states it is flawed in that it serves to undermine the proper role of the federal government. It would actually reintroduce some of the weaknesses that were discovered in the original Articles of Confederation.

Article 1 section 8 of the Constitution contains a list of enumerated powers that the states established within the federal system. These powers are rightly exercised at the federal level. Unfortunately, the Repeal Amendment makes no provision to safeguard those powers and so it introduces a line of separation of powers which will move with the whim of the states.

What is needed is for the States to stand up and enforce the Constitution as it was written. They must make their case when the general government extends its legislative power beyond the clearly defined enumerated powers in the Constitution. Nullification is the best remedy when the federal courts sanction usurpation of power by the executive and legislative branches. Nullification is the concept that the states refuse to enforce a federal law within their jurisdiction.

A future blog will cover the concept of Nullification also known as interposition and the arguments for and against the supremacy of the states. It should be noted that these problems have been greatly exacerbated by the 17th Amendment. A repeal of that amendment would also serve to restore the federal system as originally intended. It too shall be covered in a future blog.

Written by federalexpression

January 30, 2011 at 2:13 am

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