Thursday, July 23, 2009

Forget the Whole Text, Read the First Three Words

In letters so big you could practically read them from across the room.

We the People...

Hopefully we all know what that is from, and understand why it was there to begin with, so emphasized. 

Jay commented on my previous post to express his concern that the strength of the Individual States to fight federal overrule is greatly impaired by the Supremacy Clause, and the 14th Amendment to the Constitution, and that the Individual States may find themselves without a leg to stand on as they begin to assert their rights to self rule.

I understand his concern there, and thought I would reply with my own thoughts, though I don't know if I have too many ideas on the subject that are not already known to most of you.

These are the two snips in question, which some people think have lent credence to the idea that the Federal Government may overrule the will, and law, of the individual states of its union, and in some cases, have allowed it to do so. 
"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." -- The Supremacy Clause.
"No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." -- Privileges and Immunities Clause, 14th Amendment.
Personally, I don't think that they do in fact, override, legally, the rights of the states to make their own governments, as such is clearly protected by the 10th Amendment, and I'll try to explain my reasoning, though  wont get into individual case citations, and leave it as just a broad overview.

The 14th amendment is clearly of less concern, out of the two of them, as it is written to protect the privileges and rights of the Citizens and not of the Federal Government, and I don't think it offers any real resistance to a state blocking federal law enforcement activities. Being raided and arrested by UncleBATFEcker is hardly a privilege, now is it? This clause was really only intended to limit state governments and extend the first 8 Constitutional amendments, constituting the bill of rights, which limited congress, to limiting state legislatures. (though this was actually done, instead, through the Due Process Clause, to all but the second and third amendments and as such, the Privileges and Immunities clause, though very strongly worded, had little legal effect)

The Supremacy Clause, on the other hand, is indeed a bag of worms, and one which both theory and the Supreme Court's actions based upon it have been swinging back and forth for years. John Marshall, named chief justice of the Supreme Court in 1801, was the first person to take the viewpoint that no state law could conflict with federal law, and stated "the government of the Union, though limited in its power, is supreme within its sphere of action." This would be very much of concern if this was still the viewpoint the courts would take, as it leaves little room for questioning any Federal Authority, in an age where much of the limited power Marshal spoke of has long been expanded.

However, by the time the War Between the States was over, the court changed its position thoroughly, and consistently upheld state laws in contradiction to federal, by invoking the 10th amendment. Powers not delegated to the federal government are reserved to the states or to the people. 

Then came the Great Depression, and back to broad national overreaching powers we went, some say by necessity, and some say by design.

Where we are today, in the court's oppinion, is hard to say, but if the number of states who have passed resolutions affirming their 10th amendment rights is any indication, our own state of Arizona included, and most recently, Alaska, (I should have a link here to the full list, but i couldn't find one) I would say at least popular support is heading the direction of States Rights. No matter which side you would choose to support, there is plenty of case law to support either viewpoint, and case law offers some guidance in setting conditions to decide if the Supremacy Clause is sufficient for the courts to decide to override the laws of an individual state, on a case by case basis.

Two issues arise when state action is in apparent conflict with federal law. The first is whether the congressional action falls within the powers granted to Congress by the constitution. If Congress exceeded its authority, the congressional act is invalid and, despite the Supremacy Clause, has no priority over state action. This, for once, is a very consistent viewpoint of the courts, even if they vary on their opinion of what exact powers the constitution does grant to Congress. The second issue we have to consider is whether Congress intended its policy to supersede state policy. Congress often acts without intent to preempt state policy making or with an intent to preempt state policy on a limited set of issues. Congress may intend state and federal policies to coexist, and if no intention of preemtion was present, there no reason that they cannot be made to coexist.

What we have here is a law potentially supported by one constitutional phrase, and forbidden by another. If given the choice between the two conflicting laws, and indeed, two conflicting clauses of the constitution, I would assume any reasonable man would support the more qualified of the two, irregardless of the supremacy clause, who's effect, doubtlessly, is nullified by a violation of the 10th amendment, the support of which both states have already stated was their sole motivation in drafting these particular laws. The states do in fact have a right to regulate intra-state commerce, without any question, and the federal government has no power to do so, over the states, at least not granted through the Constitution.

Sounds open and shut to me.

As I said, I am uncertain, today, if the current Supreme Court would see it that way, but the fundamental point of my last post was that it shouldn't matter what the Supreme Court thinks, in the end, as the states have just as much right to review and interpret the constitution, if not more, than the Supreme Court does, and they need to start doing so, not just on this matter, but several others. As I quoted in that last post, "[I]f the Constitution is over the [Supreme] Court, who or what finally is over the Constitution? It can only be the States, who under Article V alone have the power to amend or rewrite it. How, then, may it be urged that the States ‘unequivocally surrendered’ the control of their most fundamental rights, in the last resort, to a Court they themselves created?” There is no escaping this fundamental fact, the states are sovereign entities of and to themselves, with political power granted directly by their citizens, tasked with serving and protecting the interests of those citizens, and they must act accordingly. 

More important than these conversations about what legal avenues lie before us, or what constraints generations and generations of legislators and judges have placed upon us, is the fundamental question: what should government be allowed to do, to best ensure Justice and Liberty? That is, quite simply, what our government should be limited to.

Unfortunately, since 1788, "Is" and "Should Be" have often found themselves at odds, both in this country, and its individual states, partially because we have continually allowed the Federal Government to be the sole interpreter of the agreement imposed upon it by the states that formed it, leading to a dramatic imbalance of power nationally, and partially because of a lack of interest on the part of the people, to take action and involve themselves in these issues. It is important that we look to the constitution as a great document and example of what great minds once set down, as guidance, but, and I can not assert this more firmly, the Constitution of the United States is neither immutable, nor is it the final word, in any matter. Common Sense, (and not just this kind, though it is a start) in the present era, though often difficult to locate, should always be the final word and the supreme guidance set before our actions. Though I mean it with the utmost respect, the Constitution of the United States is just a piece of paper, and if it is used to justify tyranny or injustice over the people or the states, it should be torn asunder as quickly as the tyrants that use it as a shield. The Individual States have the sole power to revise or abandon it (and as a logical extension, to question and check its advances), and the people have the sole power over the states. Two Hundred and Twenty + Years of bickering and erosion and bill-drafting can never be expected to bind the people or their representatives and stop the righting of wrongs, when the obligations and force of Liberty, being more powerful than any words, can so easily can free them to continue in their just campaign 

As Jefferson stated in the HBO series John Adams, ”[the constitution] could prove a breach in the integrity of our revolutionary ideals through which would pour the forces of reaction” and, in the end, re-institute the very tyrannies they had fought to protect themselves from.

"I am increasingly persuaded that the earth belongs exclusively to the living and that one generation has no more right to bind another to its laws and judgments than one independent nation has the right to command another"

Much more important than the words contained in the constitution, is the intent behind its creation, that men shall, for the first time in history, since the beginning of civilization, rule solely over themselves, as equals, in balanced and just form, protected by the rule of law. The constitution serves to protect those ideas, and it must never be allowed to be used to protect the will of those who do otherwise, and seek to rule over men as vassals.

Today we suffer not only by the mistakes of our legislatures and courts, but of all the legislatures and courts there have ever been in this country. This can be easily be interpreted as Generational Tyranny, no matter how great the original intentions were in the laying its foundation.

(for a more accurate and [imho] less quotable and theatrical version of Jefferson's opinions, and radical solutions, see the original words here)

I hope that the individual states will do the right thing, but it remains to be seen, what, exactly, their commitments on the subject may be, and in our delicate balance of power, if the states fail to act to correct an injustice, once identified by the people, the responsibility to do so falls solely upon the source of all legitimate political power, the people themselves, who operate neither with the balance, nor the legal delicacy of the State. If there is a federal injustice, that injustice, in all good reasoning, must be removed, and the Courts, The Legislatures, and the States are by far the best, but by no means the last, force with which to do so.

After all, as John Kennedy pointed out in 1962: 
"those who make peaceful revolution impossible will make violent revolution inevitable"

Godspeed, Citizens.

Tuesday, July 21, 2009

"What Matters is the Badge, Not the Law"

It seems that The ATF has issued two public letters declaring that the state laws of both Montana and Tennessee are considered null and void before them, without court ruling or public reflection, and that following those states' recent laws, which are intended to assert the sovereign protections afforded to the individual states by the 10th amendment to the Constitution of The United States, will result in legal persecution by the Agents of America's most feared (and dangerous) Federal Agency. You can read the two letters, here, and here.

Many people are stating that such a conflict can only be resolved in court, most likely the Supreme Court of The United States, for resolution under the terms of the Constitution as the Court interprets them, and after the court  issues a resolution that will be binding to both parties. Until then, of course, we have only the ATF's word that they intend to ignore the law entirely, and pretend it simply doesnt exist. And, well, the people in those states, that do know that it does exist, and intend to simply comply with it, they risk facing the wrath of the full force of the ATF, and the Federal Court System, a wrath we have only seen too well, over the years.

Though taking it to federal court is exactly what Montana is intending to do, I am not sure it is the proper step to take. As some people are suggesting, what should be done instead, is the states, under the very Governors that have just signed these acts into law, commiting to absolute enforcement of the law of the state, as it stands, in Montana and Tennessee. The ATF or any other Feral, er, Federal Agency wishing to infringe the rights of citizens under the protection of State Law, acting within its limits, should be prevented from doing so by local, county and state law enforcement, principally the County Sheriffs, which several schools of thought hold to be the highest ranking law enforcement officer in any given jurisdiction, and any Agent violating that law in arresting those citizens protected by state law, should be arrested by the County Sheriff and charged as criminals in state court.

Asking a federal court to over-ride the interest of federal authority is both risky in outcome and dangerous in submission, and is alot like asking a group of people appointed by horse theives, if stealing horses should be illegal, and agreeing to be bound by their decision. The interests of loyalty and self preservation do not lend themself well to impartial or fair decisions.

The best course of action, and the most relevant example in history, is Thomas Jefferson's chosen plan of attack in opposing the 1798 Alien and Sedition Acts, which among other things criminalized libel or slander against the mostly Federalist government, and the members thereof. This law was not only in violation of the 1st amendment, but fundimentally violated the 10th amendment, which clearly states that the federal government had no authority to pass laws over the states concerning freedom of speech or the press. Recognizing that the laws were unconstitutional, and knowing that as the law was being enforced arbitrarily, and being used to punish opposition to the Federalist party, while rarely applied to slander upon the Republican Party, the clear accepted constitutional course of action would have been to ask the Supreme Court to strike down unconstitutional laws. However, the arguments both for an against the acts, publicly, were divided deeply along party lines, and almost all, if not all, of the Supreme Court justices were either appointed by, or were themselves strict Federalists, and were more than a little likely to side solely with their own party. Jefferson, not trusting the courts, of which he was a frequent critic, decided to take a much different approach.

Jefferson suggested that it was in the very nature of compacts, such as the Constitution that created the Federal Government, that no one side could have the exclusive right of interpreting its terms, and allowing only the Federal Government, through its own agent the Supreme Court, to decide how it was applied, or what it was limited to, was contrary to the both the interests of the states, and the intentions of the compact. The obvious long-term consequence of allowing this one sided judgement would be the eventual concentration of power as the Federal Government, and its courts, would consistently hand down rulings in favor of itself. Instead, he insisted that states have their own rights to review the terms of the Constitution, as they were the original parties to it, before there even was a Federal Government. His proposal for doing so came in the form of State Nullification. Esentialy, that enough states, one by one, and of there own sovereign powers, could cease to comply with an unconstitutional law, and effectively, and totally, nullify it from the entire union.

The only way, as Jefferson saw it, short of secession and revolt, for a state to retain its liberties in the face of an unconstitutional act by the federal government was for that state to declare the federal action null and void and refuse to enforce it, not to ask the federal government, who was in fact not a party to the original compact, to interpret it as they saw fit, and hope that they reconsider their own actions. In this vein, he, (who was Vice President of the United States at the time,) wrote what is now called the Kentucky Resolution of 1798, for that state's legislature.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.
The Alien and Sedition Laws were never effectively Nullified, as they expired with the end of aggressions and intrigue with France, but a clear course of action had still been set upon, and an example made. No one had any intention of asking a federal court to rule on the matter, and this principle still stands as an excellent guide today, when again, we are faced with federal law that oversteps, clearly, the boundaries of the 10th amendment, and seeks to undermine the sovereign authority of the individual states. It is more difficult today to defend citizens from federal overstep than it once was, as in Jefferson's time the federal government had no law enforcement goons with which to enforce its own will, but if anything, that makes the necessity of that protection all the more clear and above all, essential, for a free and balanced society to continue to exist.

Throughout political history this was heralded time and time again as the correct course of action. John C Calhoun made a very clear case for it in in many of his writings, and his Fort Hill Address in 1831, having greatly built upon the earlier writings of Jefferson and Madison. You can read that here, if you need any further reflection on the subject.

As James Kilpatrick, an American journalist, wrote in the 1960's (I believe):
“If power-hungry federal judges may impose one unconstitutional mandate, they may impose a thousand, each more oppressive than the one before. But if the Constitution is over the [Supreme] Court, who or what finally is over the Constitution? It can only be the States, who under Article V alone have the power to amend or rewrite it. How, then, may it be urged that the States ‘unequivocally surrendered’ the control of their most fundamental rights, in the last resort, to a Court they themselves created?”
The logic there is insurmountable.

I think asking the court to review the two laws that are in contradiction, is both foolish and dangerous, as by submitting to them, you are conceding to their final ruling, and are effectively surrendering the very 10th amendment rights you are seeking to uphold.

We cannot afford to allow a federal agency, that has only proven its abusive nature too well, to be the only one allowed to Nullify and Ignore laws as it chooses.

The result of that, looks something like this:

Quis custodiet ipsos custodes?
Hopefully, The People.

Monday, July 20, 2009

You Cant Save a Free Society by Closing It

Labeling alternative viewpoints as "terrorism" or otherwise controlling speech that is undesirable, in order to prevent "extremists" from building a movement to attack "western values" and destroy an open society is is a bit like shooting your horse so it cant be stolen. No matter if you are talking about Racist National Socialists or Fundimental Islamic Militants, in all cases, it is essential that they are free to speak whatever they think, both so that they can be publicly opposed, and because to do otherwise would be the same as allowing them to win. Otherwise, at some point, you have to wonder what you are trying so hard to keep, if you are willing to give it away.

In 1977, the ACLU filed suit against the Village of Skokie, Illinois, seeking an injunction against the enforcement of three town ordinances outlawing Neo-Nazi parades and demonstrations. Skokie, Illinois at the time had a majority population of Jews, totaling 40,000 of 70,000 citizens. A federal district court struck down the ordinances in a decision eventually affirmed by the Supreme Court. The ACLU's action in this case led to a rift between the Jewish Defense League and the ACLU. According to David Hamlin, executive director of the Illinois ACLU, "...the Chicago office which chose to provide legal counsel to neo-Nazis who have been planning to march in Skokie, has lost about 25% of its membership and nearly one-third of its budget." 30,000 ACLU members resigned in protest. The financial strain from the controversy lead to layoffs at local chapters. In his February 23, 1978 decision overturning the town ordinances, US District Court Judge Bernard M. Decker described the principle involved in the case as follows: "It is better to allow those who preach racial hatred to expend their venom in rhetoric rather than to be panicked into embarking on the dangerous course of permitting the government to decide what its citizens may say and hear ... The ability of American society to tolerate the advocacy of even hateful doctrines ... is perhaps the best protection we have against the establishment of any Nazi-type regime in this country."

And yes, the NeoNazi's legal counsel was Jewish.

Just a snippet I thought I should share, as I now have a new computer, and can now access this project.