Archive for 2010
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Instead of interpreting the Constitution through the lens of a progressive “living breathing” framework, which quickly devolves into pragmatic justification for expanding powers, we must understand the Constitution through the eyes of its creators. Otherwise, the document loses all real meaning, ripping down the bulwark protecting our liberties.
What is Usurpation?
If there is a word that I wish would become a household word to be used again by every American in their daily political discussions, it would be the word “usurpation”. Yes, I would love it even more if average Americans would add to that list the words: “Nullification”, “interposition” and the phrase, “The Principles of ’98”. However, in order to understand the meaning of those words in their political context, you have to understand usurpation. Before you can discover a solution, you have to correctly understand the problem.
Usurpation is the unlawful exercise of power by a person or branch of government that does not properly belong to them. Our Constitution created a federal government of strictly limited, enumerated powers when it was ratified by the people of the several states in their respective state conventions. The states were not created by the Constitution, they already existed.
Whenever the people who make up the federal government, individually or as departments or even as branches, exercise power not expressly delegated to them by the Constitution, they are usurping the authority of either the states or the people. Why? Because as the 10th Amendment makes it clear:
“All 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
The Bane of Free Governments
George Washington warned against the dangers of usurpation. He called it the weapon by which free governments are destroyed. He urged Americans to guard against it and reject it for the evil that it is. In his farewell address, he wrote:
“If in the opinion of the People the distribution or modification of the Constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.”
As Obama likes to say, “Let me be clear”. When the federal government steps beyond the boundaries that are specifically drawn around it by the Constitution and the Bill of Rights, it isn’t abusing powers that it does have, it’s usurping powers that it doesn’t have.
Question: What should the people of the several states’ reaction be to federal usurpation be?
In such cases, we must not exercise patience and wait to “Vote the bums out” in 2012 or even as soon as 2010! We should do that when the time comes, yes. But in the meantime, to allow our state governments to wait until the usurpers are removed from office through elections would be to condone a dangerous dereliction of their duty to protect our constitutional rights.
What is Nullification?
“The several states composing the United States of America are not united on the principle of unlimited submission to their general government”
“where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them”
Nullification is a state’s decision to render a particular federal law that it deems unconstitutional void and inoperative, or non-effective, within the boundaries of that state.
Let there be no change by usurpation! Instead, let us work with our elected state officials to nullify acts of federal usurpation and reclaim the sovereignty that is the birth right of each and every American.
The government of Wisconsin went even further and in 1854 officially declared the Fugitive Slave Act to be unconstitutional. The events that lead up to this monumental decision, which is a milestone in the history of the states’ rights tradition, is one of the best stories most Americans have never heard.
CLICK HERE -To read the rest of the article!
Yet few of them have even heard of another document that I would say might be the second most important declaration he ever wrote: The Kentucky Resolutions of 1798. He drafted them secretly while he was serving as vice president. It was written in response to the hated Alien and Sedition Acts which were passed under the Adams administration during an undeclared war with France.
The acts authorized the president to deport any resident alien considered dangerous to the peace and safety of the United States, to apprehend and deport resident aliens if their home countries were at war with the United States, and criminalized any speech which might defame Congress, the President, or bring either of them into contempt or disrepute. You could compare it to the Patriot Act, but really it was much worse. Either way, The Alien and Sedition Acts were probably Thomas Jefferson’s worst nightmare.
Some people are surprised to learn that in response to these acts, Jefferson did not hold up the First Amendment in protest. Rather he invoked the Tenth Amendment, which states that:
“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.”
Essentially, he argued that by passing and enforcing the Alien and Sedition Acts, the federal government had over stepped its bounds and was exercising powers which belonged to the states.
In other words, the Alien and Sedition Acts were acts of usurpation.
James Madison corresponded with Jefferson about these issues, (they suspected that their mail was being secretly opened and read by the way). As a result of their correspondence, James Madison penned another series of resolutions against the Alien and Sedition Acts, which were passed by the Virginia legislature in 1798 and 1799.
As important as these resolutions were in objecting to the unconstitutional Alien and Sedition Acts, their lasting importance was due to the the fact that they were strong statements in defense of federalism, the sovereignty of the people of the several states, and the authority of state governments to check or resist the tyrannical proclivities of the federal government.
Jefferson began the Kentucky Resolutions by explaining the exact nature of the relationship between the new federal, or general government and the states that predated it:
“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: that to this compact each State acceded as a State, and is an integral part, its co-States forming, as to itself, the other party: that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
These resolutions, authored by Jefferson and Madison, and passed by the Kentucky and Virginia Legislatures, came to be known as the Kentucky and Virginia Resolutions, or Resolves, of 1798. The ideas they expressed were later referred to as “The Principles of ’98”.
Over time, “The Principles of ’98” would be invoked by many states, for a variety of issues. States invoked them to oppose everything from unconstitutional embargoes in 1807-1809, to the misuse of their militias during The War of 1812, the Second Bank of the United States in 1825, and the Fugitive Slave Acts of 1850.
Even today, The Principles of ’98 have been rediscovered and are being used by both Republicans and Democrats to address unconstitutional federal laws such as federal firearms regulations, Cap and Trade, REAL ID, Obamacare and Congressional “commerce clause” abuse in general.
The Principles of ’98, as expressed in Thomas Jefferson’s other declaration, The Kentucky Resolutions, are non-partisan in nature and are just as relevant today in 2010 as they were in 1798. All we have to do is rediscover and reassert them! Start talking to your state legislators about the Principles of ’98 today!
CLICK HERE – To read or listen to an audio presentation of Thomas Jefferson’s OTHER declaration — the Kentucky Resolutions of 1798!
CLICK HERE – To read more about how the Principles of ’98 were used by states throughout American history.
Copyright 2010 by the author, Derek J. Sheriff.
Joshua Lyons wrote about the health care debate last November:
“It is imperative that we take our eyes off the specifics of the proposed healthcare legislation (i.e. death panels, etc.) and focus on the authority granted [or not granted]to our federal representatives by the people.”
“Unless we unify around properly granted authority..we’ll continue a losing back-and-forth game of arguing the issues where the ball keeps getting pushed down the field a few more inches toward the Nanny State end zone.”
He was right when he wrote those words last year and the fact of the matter is that the situation remains unchanged today.
Obama may have embraced a few Republican ideas as part of his new plan, but that doesn’t amend the Constitution. The fact that the president wrote that he would continue to draw on the best ideas from both parties, and that he is open to these proposals doesn’t mean that he is open to the proposal that Congress has no authority under Article 1 Section 8 of the Constitution to event enact most of what will be contained in his final plan. His reaction to such a proposal would probably be similar to Nancy Pelosi’s reaction when she was confronted with it. With undisguised hubris, she asked the reporter, “Are you serious?”.
When one looks at the larger picture, the details of Obama’s new “health care package”, or whether or not it is passed with bipartisan support, matters little. What is far more important, now and in the future, is that people question the constitutionality of any health care reform proposed by Congress.
Sadly, many opponents of big government can’t see the forest (the larger constitutional objection), for all the trees, (death panels, debt, job losses, higher taxes etc.) How many Republicans who participated in Obama’s recent bi-partisan dog and pony show actually objected to the new plan on constitutional grounds? This needs to change right now. The details of the so called “package” should be ignored or at least take a back seat. We should instead focus on the question of constitutional authority and limit the scope of this debate immediately. Much more is at stake here than health care freedom, after all.
Our opponents would like nothing more than to distract us from the issue of constitutionality. But by refusing to be redirected, we can retain the high ground and dictate the terms of battle, as it were. This will also help to educate and prepare those who believe in limited government to resist not only this act of federal usurpation, but all such acts.
It’s essential, both in the long run and the short run, that we educate people about just what the U.S. Constitution does and does not authorize our federal government to do. It’s not very difficult to show anyone, who still has any regard at all for the Constitution, just how flimsy the arguments made by federal consolidationists like Nancy Pelosi are.
Arguments that consolidationists employ usually involve an extreme metamorphosis of the “General Welfare Clause”, or it is claimed that since Congress has the power to regulate interstate commerce and,
“..every aspect of the heath care system has an effect on interstate commerce, the power of Congress to regulate health care is essentially unlimited.”
Go back and read that statement again. Nancy Pelosi claims UNLIMITED power to regulate your health care! Someone should point out to her that a government without limits is a tyranny! Affirmation number six of the Tenth Amendment Center’s 10-4 Pledge points out what constitutional scholars like Rob Natelson and Kevin Gutzman have been saying for years:
“The “Interstate Commerce Clause” in Article I, Section 8 of the Constitution, does not permit Congress to regulate matters that merely affect commerce among the States. It only permits Congress to regulate trade among the States.”
Unless we emphasize and stick to the point that Congress has only those specific, limited powers enumerated in Article 1 Section 8, we are really just debating over who should be in control of what amounts to an unlimited, unrestrained, unaccountable central government. It doesn’t matter which party controls such a leviathan because it will eventually end up controlling and regulating every aspect of our lives.
But doesn’t Congress have implied powers that can be inferred from the “nessecarry and proper clause”? Yes, of course, but this clause only empowers Congress to use the minimum amount of power nessecarry to carry out those powers that are already enumerated in Article 1 Section 8. Affirmation number five of the Tenth Amendment Center’s 10-4 Pledge explains it very succictly:
“In order for a federally-exercised power to be “necessary and proper” it must be
a) something that, without which, would make the enumerated power impossible to exercise, and
b) a lesser power than that which has been enumerated”
Novel interpretations of the “commerce clause” favored by federal consolidationists can never be reconciled with its original meaning as understood by the Constitution’s framers and ratifiers. Any layperson who has spent just a little time studying the ratification debates between the federalists and anti-federalists, can see right through the arguments of today’s would be nationalists and will realize just how dubious their claims of unlimited power to regulate really are.
It’s only been through the dumbing down of several generations and the repeated use of partisan “divide and conquer” tactics that the consolidationists in Washington, D.C. have even been able to perpetrate their “commerce clause” fraud for so long.
Unfortunately for them and fortunately for us, however, the people of the several states and many of their state legislators are now more alert and better informed than they have ever been in recent memory.
A good place to start learning exactly why the proposed national health care “reform” is unconstitutional, would be this article written by a leading constitutional scholar, Rob Natelson, Professor of Law at The University of Montana: Pelosi’s Misleading Statement on the Constitutionality of Government Health Care
Don’t be distracted or become bogged down in this debate. Emphasize the Constitution above all else and ACCEPT NO SUBSTITUTES!
Trying to limit the power of the federal government and compell it to obey the Constitution by changing the people who make up the federal government is a failed strategy. There, I said it.
Washington, DC will never allow anyone or anything inside it’s own beltway to diminish its size or power. To believe that it somehow can or will, reminds me of Frodo’s shortsighted idea of what to do with the Ring of Power in Tolkien’s novel The Fellowship Of the Ring:
Frodo Baggins: [brightly] I’ll give it to you, Gandalf!
[Gandalf looks horrified]
Frodo Baggins: You’re wise and powerful! Will you not…
Gandalf: [anguished] No! Do not tempt me! I would wish to turn it to good, and it cannot be used so! Meaning to be kind, I would become as terrible as the Dark Lord himself. Do not tempt me!
The problem we face today is NOT that we simply have the wrong people weilding power in Washington, rather, it is the dangerous concentration of power itself!
Thomas Jefferson long ago predicted that we would be faced with this crisis:
“…the Federal Judiciary; an irresponsible body (for impeachment is scarcely a scarecrow), working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped from the States, and the government of all be consolidated into one. When all government… in little as in great things, shall be drawn to Washington as the centre of all power, it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.” (1821)
If we are ever to reclaim the liberty that was won by the American Revolutionaries, the balance of power between federal and state governments must be restored. We must inform and remind people that the state governments are co-equal to the federal government, not subordinates of it. The states must reclaim and jelously retain most of the powers given to government under the Constitution and the federal government must be limited to a few and very carefully defined ones. That is the arrangement established by the Constitution, and is one of the most important structural safeguards provided for our protection.
The federal government will never initiate the process of Constitutional re-decentalization (I think I just made that word up), regardless of who is serving in the Congress, the Senate, the White house or the Supreme Court. To expect that is as realistic as expecting your obese dog to loose weight by allowing it to have access to as much of the food you have in your house as often as it wants. Only state governments, who are like the Dog Wisperer (for lack of a better analogy), for the people of the several states, can restore true federalism.
But how do we get there from here? Where do we begin?
I cannot draft a better blueprint than the one written by a man who is already reclaiming his state’s sovereignty and is helping other state legislators do so as well. State Rep. Matthew Shea (WA-4th), gives us a step by step plan in his article: Resist DC: A Step-by-Step Plan for Freedom