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, http://pages.prodigy.net/krtq73aa/calhoun.htm 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.


chris horton said...

Great post RF! Something to think about in a way I hadn't. Thanks!


Jay21 said...

My concern for the strength of theses to states fights is imapired by the Supremacy Clause, and the 14th amend. Any additional thoughts on that loop. It has been on my mind without a person to bounce it off of.

Great essay!