AMERICA — From Freedom To Fascism (Full Length Documentary)
Federalism: The Founders’ Legacy
For the first 125 years of our history (1789-1913), America was a country comprised of libertarian politics and conservative cultural values.
1) Libertarian politics is based upon the fact that man was meant to be free. Thus his government must be strictly limited by a Constitution rather
than determined by the dictates of an autocrat or the passions of the majority. And his economy must be a free marketplace, i.e., laissez-faire capitalism.
2) Conservative cultural values are based upon the fact that there is an objective moral order in the universe, i.e., certain rights and wrongs in
human life that are applicable to all of us for all of time. Man’s culture is to be guided by these objective moral values by instilling them into young people at an early age.
These are the two vital elements that built us into the most desired nation in history – libertarian politics and conservative cultural values. The Founding Founders believed that if political freedom is to avoid degenerating into license and anarchy, we cannot promote different opinions on morality within the same society, i.e., a “do-your-own-thing” moral philosophy.
For example, no rational person would tolerate different opinions on whether six-year olds would make good congressmen in Washington, or whether cyanide is as good a season as salt, or whether the sun and rain are necessary for a farmer’s crops. Why then would he tolerate different opinions on what is right and wrong in the moral realms of life? In other words morality is not, as today’s pundits insist, relative to the person and the culture. There are fundamental rights and wrongs that can be agreed upon and upheld by all members of society. To do otherwise is to create a culture of chaos and decadence, which is what is being created all around us today.
But the Founders also believed that if social order is to avoid degenerating into tyranny, we cannot allow politicians to be our moral guardians with the power to bludgeon society’s sinners into obedience. This is because, as Madison so wisely observed, man’s nature is not angelic, but forever flawed. Because it is such, allowing politicians to act as moral guardians of society through the coercive arm of the state is fraught with danger.
Therefore libertarians maintain that virtue must be freely chosen, not legally mandated. The linking of society’s moral guardians to the coercive arm of the state during the Middle Ages created enough evil and cruelty, that we should be cured forever of such a temptation. Society’s voluntary cultural institutions (churches, schools, families, unions, and associations) are far better regulators of our lives than the state and its armed police. In other words, government should not be in the business of legislating morality.
Conservatives argue that this was not the Founders’ view, nor should it be anyone’s view. They challenge this laissez-faire approach by pointing out that all law is the “legislation of morality” and that the two concepts cannot be divorced. When society passes a law against murder, it is “legislating morality.” The same goes for stealing and all other crimes of mankind. They all entail moral issues. Therefore it is impossible to legislate period without legislating morality. The only question is whose morality is going to prevail as our guide to the laws we pass.
The libertarian answer on this issue is that though all laws are in some way involved in determining moral questions, which makes the state a legislator of morality when it prosecutes murder and stealing, the state is also legislating against the violation of rights when it prosecutes murderers and thieves. This protection of its citizens rights is a much safer guideline to use in defining the government’s parameters of power. The state has to legislate morality, yes, but not all morality. There are two degrees of immoral behavior: that which involves violating someone’s rights (e.g. murder), and that which does not violate anyone’s rights (e.g., prostitution). The state needs to legislate against the former and leave the latter’s containment to the preachers. To the libertarian, this latter is not a crime because there is no victim. To criminalize such behavior is to prosecute “victimless crimes,” i.e., no crime.
Thus even though libertarian politics and conservative values fit together to form the free and ordered society, we still have a basic clash between libertarians and conservatives over the proper role of government in the ideal society. Is government to leave men and women alone and control vice with moral suasion as libertarians wish, or is government to legislate against vice as conservatives wish?
The Founders’ Solution
Is there an answer to this perplexing conflict? Yes, there is. It is the Founders’ political system of federalism, whereby the extent to which government was to legislate would be determined primarily on the state and local level. Whatever government functions could be done locally must be handled thusly. Only what couldn’t be done on the local level would be assumed by state officials. And only if the state governments couldn’t handle the governing issue, would the federal government be used.
In this way, there would be many different approaches to the preservation of a free and ordered community. If someone did not like the extent to which his government legislated to achieve freedom and order, he could always vote with his feet and seek a more “enlightened” state in another part of the country. Thus there would always be a competition among governments that would help to keep them honest.
But what libertarians often forget is that the Founders’ philosophy of federalism also left the diversity of states and localities to handle, within the parameters of the Constitution, the problem of men’s tendency to vice and degradation. For example, it was up to each state and locality whether they would promote laws against vice, i.e., legislate morality. If the citizens of any locality decided that the libertarian ideal of excluding government from prosecuting victimless crimes was what they wished for their community, then they could vote such a system into place. Other communities and states would be free to follow in their steps or proceed differently. In this way, there would be flexibility as to precisely how to govern the interactions of men, yet also a containment of the powers to be used because of the right of the people to vote with their feet.
The only requisite for the states was that they structured themselves as “republican governments,” i.e., limited democracies with separated powers that made protection of the individual’s rights and preservation of basic order the purposes of their being. Since men were rational creatures possessed of the capacity to learn from history, albeit not perfectly, they would then be able to develop a society in which the greatest amount of “freedom and order” would prevail.
Here then lies the solution to the libertarian / conservative clash. Under the concept of federalism, the ideal libertarian society (in which government does not prosecute “victimless crimes”) would have to move beyond theory and prove itself workable in a real life community setting. If government power was decentralized and strict federalism was restored, then libertarians would be free to influence their fellow community members to abolish all victimless crime laws in a specific community. Once such an approach is shown to be workable, it would then spread to other communities and states. Eventually society would evolve into a reasonably libertarian concept of government if such a concept showed itself to be, not just theoretically desirable in the ivory tower but also practical in the real world. This is the genius of federalism. It provides for us the vehicle to transmit theory into practice and develop as free a society as humanly possible.
What Could Have Been
How important is federalism? If it hadn’t been sabotaged by Abraham Lincoln and his massive centralizing agenda, the Federal Reserve and the income tax would not have come to America in 1913. Without the Federal Reserve and its engine of inflation, Woodrow Wilson would not have possessed the monetary capacity to drag us into World War I. Without our entry into that grisly war, the nations of Europe (so dissipated in both morale and manpower by 1917) would have had to sue for peace and go home. There would have been no Versailles Treaty, and thus no fervent Nazi movement in Germany. Without Hitler, there would have been no World War II. Moreover, without a Federal Reserve in America, there would have been no inflationary 1920′s boom, and therefore no devastating 1930′s depression. No depression, no Roosevelt-Keynesian New Deal. What a different 20th century it would have been if we had remained true to federalism.
If we who advocate a free political order are to challenge today’s liberal / neoconservative destruction of the American experiment, then we will have to coalesce around this most important legacy of the Founders. Federalism is the only means to unite libertarians and conservatives, and a unity of these two movements is our only hope to defeat the enemies of free civilization that rule us today in such an insufferably tyrannical way.
by Nelson Hultberg | Americans for a Free Republic
[This article is based upon an excerpt from his book The Golden Mean: Libertarian Politics, Conservative Values.]
Posted Tuesday 02/25/2014 – 17:37 at http://www.dailypaul.com/313173/federalism-the-founders-legacy
Second American Revolution Underway
The Declaration of Independence pledges Americans’ “unalienable Rights” through Governments “deriving their just powers from the consent of the governed …
“Whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it …”
More and more of us are determined to alter our government by denying our consent to President Barack Obama’s continuous discarding of our individual constitutional liberties, as I’ve demonstrated in recent columns.
But the most starkly lucid reasons for this looming Second American Revolution have been detailed by Randy E. Barnett, a Georgetown University professor of constitutional law and author of the book Restoring the Lost Constitution: The Presumption of Liberty (Princeton University Press, 2005).
In a recent column for The Wall Street Journal, Barnett provides a message of salvation to all Americans, regardless of political party. It is a model of unavoidable clarity defining who we are:
“In a republican government based on popular sovereignty, the people are the principals or masters and those in government are merely their agents or servants” (“The NSA’s Surveillance Is Unconstitutional,” Barnett, The Wall Street Journal, July 12).
Furthermore, he explains, “for the people to control their servants (in Government), however, they must know what their servants are doing.”
This proved essential over time for the first American Revolution to succeed (due to the efforts of Samuel Adams, the Sons of Liberty and the Committees of Correspondence).
Barnett writes: “Relying solely on internal governmental checks violates the fundamental constitutional principle that the sovereign people must be the ultimate external judge of their servants’ conduct in office.
“Yet such judgment and control is impossible without the information that such secret programs conceal,” Barnett continues. “Had it not been for the recent leaks, (much of) the American public would have no idea of the existence of these programs, and we still cannot be certain of their scope.”
He then gets to the ever-more pervasive and powerful Foreign Intelligence Surveillance Court. Once again, through the media, Americans now know of the court’s existence, but hardly anything else about how this secret institution still enables the National Security Agency to do its work unknown to us.
Barnett’s solution: “Congress or the courts must put a stop to these unreasonable blanket seizures of data and end the jurisdiction of the Foreign Intelligence Surveillance Court to secretly adjudicate the constitutionality of surveillance programs.”
I, too, think that in view of its record through the years, the Foreign Intelligence Surveillance Court must no longer exist. But any credible constitutional replacement would also obviously require the replacement of this president and the current, absurdly named Justice Department.
Eric Lichtblau’s recent front-page New York Times expose is a deeply important corollary exposure of the unconstitutionality of the Foreign Intelligence Surveillance Court and its prime beneficiary — the still boundlessly unconstitutional NSA. Reading what follows about this secret court’s utter contempt for the separation of powers — fully supported by Obama — makes me ask, again, how can this president not be impeached for ravaging the oath of office?
“The rulings, some nearly 100 pages long, reveal that the court has taken on a much more expansive role by regularly assessing broad constitutional questions and establishing important judicial precedents with almost no public scrutiny, according to current and former officials familiar with the court’s classified decisions” (“In Secret, Court Vastly Broadens Powers of N.S.A.,” Lichtblau, The New York Times, July 7).
Have any of you sovereign citizens in this constitutional republic been at all consulted on the appointments of these judges who are deciding on broad constitutional questions?
Again, Georgetown’s Barnett echoes Thomas Jefferson and James Madison when he reminds us that, “for the people to control their servants in Government, however, they must know what their servants are doing.”
And, thanks to the revelations of former NSA contractor Edward Snowden, more members of the media have been awakened to these secret removals of the citizenry’s authority over crucial parts of the Constitution. But there has not been enough sustained media coverage with the depth and consistency necessary to expose what our ultimate servants in Government are allowing to happen.
By contrast, a precipitating cause of the original American Revolution was the Committees of Correspondence, which sent news around the colonies of how our British rulers here and in London were utterly ignoring our rights as British citizens going back to the Magna Carta.
One example of an American president who continued to act as if he were emulating King George III — even after our First Amendment was ratified in 1791 — is John Adams. Our second president led Congress to enact the Alien and Sedition Acts in 1798, which made it seditious for new American citizens to use speech that brought the president or Congress “into contempt or disrepute.”
As that news went through the new states, Adams lost his chance for a second presidential term.
If the media will now keep on this story while also gathering new information, at last Obama may be impeached before his years as president come to an end.
This article appeared on Cato.org on July 17, 2013
America’s Founding Fathers Knew This Day Would Come
“Tree Of Liberty Must Be Refreshed From Time to Time With The Blood Of Patriots & Tyrants.”
WASHINGTON DC - USA – As President Barack Hussein Obama vowed to put his full weight into banning and restricting gun ownership in the US in a landmark speech today, Americans across their great nation have an uneasy feeling inside of them. Their founding fathers warned them that this day would one day come.
America was built on the premise of Freedom, Liberty and Justice. The Founding Fathers of the United States of America fought so hard for their nation, for their people. They would be truly appalled at what is happening now in their cherished land, where Freedom is being choked, where Liberty is being smothered, and where Justice is being subverted.
George Washington, John Adams, Thomas Jefferson, James Madison, Benjamin Franklin, Samuel Adams, Thomas Paine, Alexander Hamilton, Gouverneur Morris, where are you now that your people need you so? Their spirits live only in the constitution of the United States but for how much longer?
How long can you, the people, stand by and watch the good decent American tenets that the Founding Fathers wrote, be torn up and thrown on the floor like a piece of trash? Are you going to stand there when they come to take away all of your freedom? Are you going to stand there when they tell you you are wrong to believe in Freedom, Justice and Liberty?
“Liberty, once lost, is lost forever” said John Adams.
And when they come for your guns remember these words from Thomas Paine: “It is the duty of the patriot to protect his country from its government.”
As the TSA worker touches your young daughter, quote these words from James Madison out to the people standing in the checkpoint: “If tyranny and oppression come to this land, it will be under the guise of fighting a foreign enemy.”
The Founding Fathers knew what was coming and they prepared the American people for this very outcome, they knew that some day the very government that was meant to govern the people would be the tyranny that terrorises the people. They knew that eventually things have to be treated to get better, just like an illness, America is sick and the only doctor that can cure it is YOU the people. Don’t let the corrupt tyranny put you in a FEMA camp. Don’t let the corrupt hypocrites and liars tell you that you are wrong to believe in the goodness that you believe in. Don’t let these pirates who have taken over change the laws anymore. YOU are the law. YOU the people are the law.
Thomas Jefferson knew what eventually happens in government when he said: “Experience hath shown that even under the best forms of government, those entrusted with power have, in time, and by slow operations, perverted it into tyranny.”
And to no end, he also meant it, when he said: “All tyranny needs to gain a foothold is for people of good conscience to remain silent.”
America is silent now but for how long can the silence last?
By Albert Spike 30/12/2012 20:00:00
Federal Nullification Efforts Mounting In States
JEFFERSON CITY, Mo. (AP) — Imagine the scenario: A federal agent attempts to arrest someone for illegally selling a machine gun. Instead, the federal agent is arrested — charged in a state court with the crime of enforcing federal gun laws.
Farfetched? Not as much as you might think. The scenario would become conceivable if legislation passed by Missouri’s Republican-led Legislature is signed into law by Democratic Gov. Jay Nixon. The Missouri legislation is perhaps the most extreme example of a states’ rights movement that has been spreading across the nation. States are increasingly adopting laws that purport to nullify federal laws — setting up intentional legal conflicts, directing local police not to enforce federal laws and, in rare cases, even threatening criminal charges for federal agents who dare to do their jobs.
An Associated Press analysis found that about four-fifths of the states now have enacted local laws that directly reject or ignore federal laws on marijuana use, gun control, health insurance requirements and identification standards for driver’s licenses. The recent trend began in Democratic leaning California with a 1996 medical marijuana law and has proliferated lately in Republican strongholds like Kansas, where Gov. Sam Brownback this spring became the first to sign a measure threatening felony charges against federal agents who enforce certain firearms laws in his state.
Some states, such as Montana and Arizona, have said “no” to the feds again and again — passing states’ rights measures on all four subjects examined by the AP — despite questions about whether their “no” carries any legal significance.
“It seems that there has been an uptick in nullification efforts from both the left and the right,” said Adam Winkler, a professor at the University of California at Los Angeles who specializes in constitutional law.
Yet “the law is clear — the supremacy clause (of the U.S. Constitution) says specifically that the federal laws are supreme over contrary state laws, even if the state doesn’t like those laws,” Winkler added.
The fact that U.S. courts have repeatedly upheld federal laws over conflicting state ones hasn’t stopped some states from flouting those federal laws — sometimes successfully. About 20 states now have medical marijuana laws allowing people to use pot to treat chronic pain and other ailments — despite a federal law that still criminalizes marijuana distribution and possession. Ceding ground to the states, President Barack Obama’s administration has made it known to federal prosecutors that it wasn’t worth their time to target those people.
Federal authorities have repeatedly delayed implementation of the 2005 Real ID Act, an anti-terrorism law that set stringent requirements for photo identification cards to be used to board commercial flights or enter federal buildings. The law has been stymied, in part, because about half the state legislatures have opposed its implementation, according to the National Conference of State Legislatures.
About 20 states have enacted measures challenging Obama’s 2010 health care laws, many of which specifically reject the provision mandating that most people have health insurance or face tax penalties beginning in 2014.
After Montana passed a 2009 law declaring that federal firearms regulations don’t apply to guns made and kept in that state, eight other states have enacted similar laws. Gun activist Gary Marbut said he crafted the Montana measure as a foundation for a legal challenge to the federal power to regulate interstate commerce under the U.S. Constitution. His lawsuit was dismissed by a trial judge but is now pending before the 9th U.S. Circuit Court of Appeals.
“The states created this federal monster, and so it’s time for the states to get their monster on a leash,” said Marbut, president of the Montana Shooting Sports Association. The Supreme Court ruled in 1997 that local police could not be compelled to carry out provisions of a federal gun control law. But some states are now attempting to take that a step further by asserting that certain federal laws can’t even be enforced by federal authorities.
A new Kansas law makes it a felony for a federal agent to attempt to enforce laws on guns made and owned in Kansas. A similar Wyoming law, passed in 2010, made it a misdemeanor. The Missouri bill also would declare it a misdemeanor crime but would apply more broadly to all federal gun laws and regulations — past, present, or future — that “infringe on the people’s right to keep and bear arms.
U.S. Attorney General Eric Holder sent a letter in late April to the Kansas governor warning that the federal government is willing to go to court over the new law. “Kansas may not prevent federal employees and officials from carrying out their official responsibilities,” Holder wrote.
Federal authorities in the western district of Missouri led the nation in prosecutions for federal weapons offenses through the first seven months of the 2013 fiscal year, with Kansas close behind, according to a data clearinghouse at Syracuse University.
Felons illegally possessing firearms is the most common charge nationally. But the Missouri measure sets it sights on nullifying federal firearms registrations and, among other things, a 1934 law that imposes a tax on transferring machine guns or silencers. Last year, the federal government prosecuted 83 people nationally for unlawful possession of machine guns.
So what would happen if a local prosecutor actually charges a federal agent for doing his or her job? “They’re going to have problems if they do it — there’s no doubt about it,” said Michael Boldin, executive director of the Tenth Amendment Center, a Los Angeles-based entity that promotes states’ rights. “There’s no federal court in the country that’s going to say that a state can pull this off.”
Yet states may never need to prosecute federal agents in order to make their point. If enough states resist, “it’s going to be very difficult for the federal government to force their laws down our throats,” Boldin said.
Missouri’s governor has not said whether he will sign or veto the bill nullifying federal gun laws. Meanwhile, thousands of people have sent online messages to the governor’s office about the legislation.
Signing the measure “will show other states how to resist the tyranny of federal bureaucrats who want to rob you of your right to self-defense,” said one message, signed by Jim and Arlena Sowash, who own a gun shop in rural Stover, Mo.
Others urged a veto. “Outlandish bills like this — completely flouting our federal system — make Missouri the laughingstock of the nation,” said a message written by Ann Havelka, of the Kansas City suburb of Gladstone.
June 21st 2013
Will America’s Bank War Again Realign Politics?
It can be said that the present day financial crisis and the broad and sweeping powers the U.S. Federal Reserve has assumed in its wake all share their origins in the very first debates Congress had over the creation of the national debt, the Fed’s precursor, the Bank of the United States, and over the implication of foreign ownership of these institutions.
With an economy addicted to credit expansion and a $16.7 trillion national debt set to rise rapidly in the coming years, and interest owed on the debt, much of it to foreigners, poised to eventually overwhelm taxpayers’ ability to repay it, these debates are no less vital today.
They can be instructive to the American people in deciding whether to continue on the path of increasing debt and dependency on foreign sources of credit and printed money to refinance our obligations.
The First Bank
When the first U.S. Treasury Secretary Alexander Hamilton’s Bank of the United States — the nation’s first central bank — came up for renewal in 1811, these very controversies caused Congress to allow its charter to lapse.
President James Madison had never supported the bank’s charter in 1791 as a member of the House of Representatives, along with Thomas Jefferson, who both had opposed the bank on constitutional grounds. In 1811, Madison had his vice president, George Clinton, cast the deciding vote against the bank’s renewal.
The fight over Hamilton’s bank back in 1791 in many ways had led to the advent of political parties in the United States. The Federalists, led by Hamilton, were in favor of the bank, and the Republicans, led by Madison and Jefferson, were against.
Of considerable concern at the time was the foreign ownership of the bank. In debate over the bank’s renewal, Sen. Henry Clay revealed that “seven-tenths [70 percent] of the stock belonged to British subjects, and that certain English noblemen, and a late Lord Chancellor, were among the very largest of the stockholders,” as noted in an 1830 House report on the bank’s history prepared by Rep. George McDuffie for the Andrew Jackson Administration.
As a result of the objections, the bank’s 1811 renewal was defeated — but not for long.
Within a year, the U.S. was again at war with Great Britain, a conflict that put the nation deeply into debt. Madison, who had famously opposed the creation of the national debt, when in power saw it rise from $45 million in 1812 to $127 million by 1816 to pay for his war.
Per the House report, within three years “the circulating medium became so disordered, the public finances so deranged, and the public credit so impaired, that the enlightened patriot, [Alexander] Dallas, who then presided over the Treasury Department, with the sanction of Mr. Madison, and, as it is believed, every member of the cabinet, recommended to Congress the establishment of a National Bank.”
Quite the turnaround. Opposition to the bank had been an article of faith for Jefferson and Madison’s Republican Party, but then in 1816, Madison signed into law the bill that created the Second Bank of the United States.
Similarly, Jefferson’s renowned opposition to the national debt had suddenly become forgotten when he took office in 1801, going deeply in debt with Baring Brothers & Co. (then Francis Baring and Company) of London to finance the 1803 Louisiana Purchase from Napoleonic France.
The Rise of ‘Old Hickory’
These apostasies led directly to the rise of Andrew Jackson and the splintering of the American political party system, once again over the bank issue and the debt.
It is a sinister joke that Andrew Jackson appears on the 20-dollar Federal Reserve Note, an institution he would have despised. Whoever came up with that idea must have had quite a laugh over the irony. As President, Jackson paid off the national debt and when the renewal of the Second Bank’s charter passed Congress, he vetoed it. The Jacksonians became the basis for the modern day Democrat Party. Those in favor of the national bank became the Whigs.
Besides the arguments against its constitutionality, assisting Jackson was again the specter of foreign ownership of the bank, which was his principal objection. In 1822, foreigners held $3.1 million or 9.1 percent of the bank’s $35 million capital, according to a report of its board of directors. In 1830, according to McDuffie’s report, that figure had risen to some $7 million, or 20 percent of the stock.
By 1832, that figure had again increased to $8.4 million, or 24 percent of the stock, “mostly of Great Britain,” Jackson noted in his veto of the bank’s recharter. Foreign ownership of the bank was indeed rising, quite rapidly. Even though foreigners were barred from serving on the central bank’s board of directors, Jackson perceived ownership as a threat to American sovereignty and independence, and the central bank was again shuttered.
“Should the stock of the bank principally pass into the hands of the subjects of a foreign country, and we should unfortunately become involved in a war with that country, what would be our condition?” Jackson asked, tacitly referring to the financial ruin that followed Madison’s war. Nearly reaching bankruptcy, the War of 1812 revealed what happens when a nation finds itself at war with its creditors.
Overall, the Republicans under Jefferson and Madison had accumulated a mountain of debt to foreign countries during their administrations. Their experiences changed their views and hence public policy about everything from the national debt to central banking, supporting Jackson’s essential point that foreign “investment” is actually influence, and can turn into subversion. When Madison could not secure financing for his ruinous war (even after it was over), he yielded into the pressure to create another central bank in 1816.
16 years later, Jackson would undo it, but the issues of currency, debt, and central banking would not go away forever.
The Revenge of the Fed
Although Jackson’s slaying what was called the central banking hydra liberated the American economy for the duration of the Civil War and the Industrial Revolution, advocates of a national bank and the power to engage in rapid credit expansion would eventually succeed, with formation of the Federal Reserve 100 years ago in 1913 under the guise of preventing bank panics.
Yes, there had been bank panics in the interim, but these did not stop the industrialization of the U.S. economy or the settling of the West. Nor did they lead to anything like what followed.
After all, the creation of the Fed did not stop bank panics. It worsened their severity as is readily evidenced by both the Great Depression and financial crisis of 2007 and 2008. Both crises followed massive credit expansions that were financed by the central bank.
Now, looking at where the Federal Reserve has brought us over the past century, with politicians as diverse as former Rep. Ron Paul (R-TX) and Sen. Bernie Sanders (I-VT) uniting around the issue of Fed transparency in the 2010 Dodd-Frank legislation, it appears that the most recent financial crisis has opened another salvo in the nation’s ongoing Bank War.
Foreign Influence — again
The Fed audit revealed that of the $1.25 trillion of mortgage-backed securities the central bank purchased after the housing bubble popped, some $442.7 billion were bought from foreign banks. These were not loans, but outright purchases, a direct bailout of foreign firms that had bet poorly on U.S. housing.
They included $127.5 billion given to MBS Credit Suisse (Switzerland), $117.8 billion to Deutsche Bank (Germany), $63.1 billion to Barclays Capital (UK), $55.5 billion to UBS Securities (Switzerland), $27 billion to BNP Paribas (France), $24.4 billion to the Royal Bank of Scotland (UK), and $22.2 billion to Nomura Securities (Japan). Another $4.2 billion was given to the Royal Bank of Canada, and $917 million to Mizuho Securities(Japan).
At the time of the bailouts, then-Sen. Jim DeMint (R-SC) supposed in an interview with radio host Mark Levin that foreign creditors threatened to stop lending the U.S. money unless we bought back the mortgage paper.
The whole episode vindicated the fears of Andrew Jackson, who essentially warned that a central bank and a government in debt to foreigners would first serve their interests before that of citizens. So, while Americans were suffering through high unemployment and resultant foreclosures on their homes, foreign banks were made whole with a printing press.
Jackson was proven right. Foreign ownership of U.S. debt in 2008 again had again changed public policy in favor of those interests.
No Other Way
All the while, the people are told that there is no alternative. That we must have a central bank that privatizes profits when times are good, and socializes losses when the banks screw up and extend credit too far. That the economy would fall apart without such an institution.
These were the same exact arguments that were put to Jackson when he questioned the central bank. The1830 McDuffie House report warned Jackson ominously, “it would be utterly impossible to produce so entire a change in the monetary system of the country, as to abolish the agency of banks of discount, usually attendant on great political revolutions, subverting the titles of private property.”
The report added, “The sudden withdrawal of some hundred millions of bank credit, would be equivalent, in its effects, to the arbitrary and despotic transfer of the property of one portion of the community to another.”
Yet without a central bank, none of those things happened. Instead, 1870 to 1913 is seen by many to have been a renaissance for the American economy. In fact, between 1836 and 1913, although there were bank panics, there were no economic crises of the magnitude seen in 1929, 1931, or 2008 when central banks had complete control over monetary policy.
The New Bank War
The bank war has been the fault line of American history. It has led to two of the three shakeups of the party system that have occurred over the past 224 years. It is no mistake that the same issue that divided the party of Jefferson and Madison in 1816 and 1832 divides both Democrats and Republicans today.
With the rise of the Tea Party on the right and Occupy Wall Street on the left in the U.S., or of the UK Independence Party in Britain, or of the Five-Star Movement in Italy and Syriza in Greece, one common thread tying these disparate political movements together is opposition to bank bailouts and the current regime of central banking.
When leftists and libertarians begin finding common ground on an issue as important as money, something is happening. This movement may be in its nascent stages, but it is sending shockwaves through the current political system all over the world.
The political success of central banking over the past century — all opposition had been nearly wiped out — means that when economic contractions brought on by excessive credit expansion occur, as it has today, there are no other institutions to blame for the misery that follows.
Central banks have had their time, but now the pendulum is swinging once again. Where it ends is anyone’s guess, perhaps a Rand Paul candidacy, but as in the past, this issue has the potency to transform and realign American politics.
Bill Wilson is the President of Americans for Limited Government. Robert Romano is the Senior Editor of Americans for Limited Government
January 4th, 2013
Americans – Like Nazi Germans – Don’t Notice that All of Our Rights Are Slipping Away
Americans Are Acting Like Slowly Boiling Frogs
In the classic history of Nazi Germany, They Thought They Were Free, Milton Mayer writes:
“What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it. “This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.
The German citizens were boiling frogs … the water heating up so gradually that they didn’t realize they had to jump out of the pot to safety.
By Anthony Freda www.AnthonyFreda.com
The 1st Amendment protects speech, religion, assembly and the press:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
However, the government is arresting those speaking out … and violently crushing peaceful assemblies which attempt to petition the government for redress.A federal judge found that the law allowing indefinite detention of Americans without due process has a “chilling effect” on free speech. And see this and this.There are also enacted laws allowing the secret service to arrest anyone protesting near the president or other designated folks (that might explain incidents like this).The threat of being labeled a terrorist for exercising our First Amendment rights certainly violates the First Amendment. The government is using laws to crush dissent, and it’s gotten so bad that even U.S. Supreme Court justices are saying that we are descending into tyranny.For example, the following actions may get an American citizen living on U.S. soil labeled as a “suspected terrorist” today:
- Criticizing the government’s targeting of innocent civilians with drones (although killing innocent civilians with drones is one of the main things which increases terrorism. And see this)
- Stocking up on more than 7 days of food (even though all Mormons are taught to stockpile food, and most Hawaiians store up on extra food)
- (Not having a Facebook account may soon be added)
And holding the following beliefs may also be considered grounds for suspected terrorism:
- Liking the Founding Fathers
- Being a Christian
- Being “anti-nuclear”
- Being “anti-abortion”
- Being “anti-Catholic”
- Being “anti-global”
Of course, Muslims are more or less subject to a separate system of justice in America.And 1st Amendment rights are especially chilled when power has become so concentrated that the same agency which spies on all Americans also decides who should be assassinated.
The 2nd Amendment states:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Gun control and gun rights advocates obviously have very different views about whether guns are a force for violence or for good.But even a top liberal Constitutional law expert reluctantly admits that the right to own a gun is as important a Constitutional right as freedom of speech or religion:
Like many academics, I was happy to blissfully ignore the Second Amendment. It did not fit neatly into my socially liberal agenda. It is hard to read the Second Amendment and not honestly conclude that the Framers intended gun ownership to be an individual right. It is true that the amendment begins with a reference to militias: “A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” Accordingly, it is argued, this amendment protects the right of the militia to bear arms, not the individual.Yet, if true, the Second Amendment would be effectively declared a defunct provision. The National Guard is not a true militia in the sense of the Second Amendment and, since the District and others believe governments can ban guns entirely, the Second Amendment would be read out of existence. More important, the mere reference to a purpose of the Second Amendment does not alter the fact that an individual right is created. The right of the people to keep and bear arms is stated in the same way as the right to free speech or free press. The statement of a purpose was intended to reaffirm the power of the states and the people against the central government. At the time, many feared the federal government and its national army. Gun ownership was viewed as a deterrent against abuse by the government, which would be less likely to mess with a well-armed populace.Considering the Framers and their own traditions of hunting and self-defense, it is clear that they would have viewed such ownership as an individual right — consistent with the plain meaning of the amendment.None of this is easy for someone raised to believe that the Second Amendment was the dividing line between the enlightenment and the dark ages of American culture. Yet, it is time to honestly reconsider this amendment and admit that … here’s the really hard part … the NRA may have been right. This does not mean that Charlton Heston is the new Rosa Parks or that no restrictions can be placed on gun ownership. But it does appear that gun ownership was made a protected right by the Framers and, while we might not celebrate it, it is time that we recognize it.
The gun control debate – including which weapons and magazines are banned – is still in flux …
The 3rd Amendment prohibits the government forcing people to house soldiers:
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
Hey … we’re still honoring one of the Amendments! Score one for We the People!
The 4th Amendment prevents unlawful search and seizure:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The domestic use of drones to spy on Americans clearly violates the Fourth Amendment and limits our rights to personal privacy.
Paul introduced a bill to “protect individual privacy against unwarranted governmental intrusion through the use of unmanned aerial vehicles commonly called drones.”Emptywheel notes in a post entitled “The OTHER Assault on the Fourth Amendment in the NDAA? Drones at Your Airport?”:
As the map above makes clear–taken from this 2010 report–DOD [the Department of Defense] plans to have drones all over the country by 2015.
Many police departments are also using drones to spy on us. As the Hill reported:
At least 13 state and local police agencies around the country have used drones in the field or in training, according to the Association for Unmanned Vehicle Systems International, an industry trade group. The Federal Aviation Administration has predicted that by the end of the decade, 30,000 commercial and government drones could be flying over U.S. skies. “Drones should only be used if subject to a powerful framework that regulates their use in order to avoid abuse and invasions of privacy,” Chris Calabrese, a legislative counsel for the American Civil Liberties Union, said during a congressional forum in Texas last month. He argued police should only fly drones over private property if they have a warrant, information collected with drones should be promptly destroyed when it’s no longer needed and domestic drones should not carry any weapons.He argued that drones pose a more serious threat to privacy than helicopters because they are cheaper to use and can hover in the sky for longer periods of time.A congressional report earlier this year predicted that drones could soon be equipped with technologies to identify faces or track people based on their height, age, gender and skin color.
Even without drones, Americans are the most spied on people in world history:
The American government is collecting and storing virtually every phone call, purchases, email, text message, internet searches, social media communications, health information, employment history, travel and student records, and virtually all other information of every American. [And see this.]Some also claim that the government is also using facial recognition software and surveillance cameras to track where everyone is going. Moreover, cell towers track where your phone is at any moment, and the major cell carriers, including Verizon and AT&T, responded to at least 1.3 million law enforcement requests for cell phone locations and other data in 2011. (And – given that your smartphone routinely sends your location information back to Apple or Google – it would be child’s play for the government to track your location that way.) Your iPhone, or other brand of smartphone is spying on virtually everything you do (ProPublica notes: “That’s No Phone. That’s My Tracker“).As the top spy chief at the U.S. National Security Agency explained this week, the American government is collecting some 100 billion 1,000-character emails per day, and 20 trillion communications of all types per year.He says that the government has collected all of the communications of congressional leaders, generals and everyone else in the U.S. for the last 10 years.He further explains that he set up the NSA’s system so that all of the information would automatically be encrypted, so that the government had to obtain a search warrant based upon probably cause before a particular suspect’s communications could be decrypted. [He specifically did this to comply with the Fourth Amendment's prohibition against unreasonable search and seizure.] But the NSA now collects all data in an unencrypted form, so that no probable cause is needed to view any citizen’s information. He says that it is actually cheaper and easier to store the data in an encrypted format: so the government’s current system is being done for political – not practical – purposes.He says that if anyone gets on the government’s “enemies list”, then the stored information will be used to target them. Specifically, he notes that if the government decides it doesn’t like someone, it analyzes all of the data it has collected on that person and his or her associates over the last 10 years to build a case against him.
Transit authorities in cities across the country are quietly installing microphone-enabled surveillance systems on public buses that would give them the ability to record and store private conversations….The systems are being installed in San Francisco, Baltimore, and other cities with funding from the Department of Homeland Security in some cases ….The IP audio-video systems can be accessed remotely via a built-in web server (.pdf), and can be combined with GPS data to track the movement of buses and passengers throughout the city. The systems use cables or WiFi to pair audio conversations with camera images in order to produce synchronous recordings. Audio and video can be monitored in real-time, but are also stored onboard in blackbox-like devices, generally for 30 days, for later retrieval. Four to six cameras with mics are generally installed throughout a bus, including one near the driver and one on the exterior of the bus. Privacy and security expert Ashkan Soltani told the Daily that the audio could easily be coupled with facial recognition systems or audio recognition technology to identify passengers caught on the recordings.
Street lights that can spy installed in some American citiesAmerica welcomes a new brand of smart street lightning systems: energy-efficient, long-lasting, complete with LED screens to show ads. They can also spy on citizens in a way George Orwell would not have imagined in his worst nightmare.With a price tag of $3,000+ apiece, according to an ABC report, the street lights are now being rolled out in Detroit, Chicago and Pittsburgh, and may soon mushroom all across the country.Part of the Intellistreets systems made by the company Illuminating Concepts, they have a number of “homeland security applications” attached.Each has a microprocessor “essentially similar to an iPhone,” capable of wireless communication. Each can capture images and count people for the police through a digital camera, record conversations of passers-by and even give voice commands thanks to a built-in speaker.Ron Harwood, president and founder of Illuminating Concepts, says he eyed the creation of such a system after the 9/11 terrorist attacks and the Hurricane Katrina disaster. He is “working with Homeland Security” to deliver his dream of making people “more informed and safer.”
Fox news notes that the government is insisting that “black boxes” be installed in cars to track your location.The TSA has moved way past airports, trains and sports stadiums, and is deploying mobile scanners to spy on people all over the place. This means that traveling within the United States is no longer a private affair. (And they’re probably bluffing, but the Department of Homeland Security claims they will soon be able to know your adrenaline level, what you ate for breakfast and what you’re thinking … from 164 feet away.)And Verizon has applied for a patent that would allow your television to track what you are doing, who you are with, what objects you’re holding, and what type of mood you’re in. Given Verizon and other major carriers responded to at least 1.3 million law enforcement requests for cell phone locations and other data in 2011, such information would not be kept private. (And some folks could be spying on you through your tv using existing technology.)Of course, widespread spying on Americans began before 9/11 (confirmed here and here. And see this). So the whole “post-9/11 reality” argument falls flat.And the spying isn’t being done to keep us safe … but to crush dissent and to smear people who uncover unflattering this about the government … and to help the too big to fail businesses compete against smaller businesses (and here).In addition, the ACLU published a map in 2006 showing that nearly two-thirds of the American public – 197.4 million people – live within a “constitution-free zone” within 100 miles of land and coastal borders:
The ACLU explained:
- Normally under the Fourth Amendment of the U.S. Constitution, the American people are not generally subject to random and arbitrary stops and searches.
- The border, however, has always been an exception. There, the longstanding view is that the normal rules do not apply. For example the authorities do not need a warrant or probable cause to conduct a “routine search.”
- But what is “the border”? According to the government, it is a 100-mile wide strip that wraps around the “external boundary” of the United States.
- As a result of this claimed authority, individuals who are far away from the border, American citizens traveling from one place in America to another, are being stopped and harassed in ways that our Constitution does not permit.
- Border Patrol has been setting up checkpoints inland — on highways in states such as California, Texas and Arizona, and at ferry terminals in Washington State. Typically, the agents ask drivers and passengers about their citizenship. Unfortunately, our courts so far have permitted these kinds of checkpoints – legally speaking, they are “administrative” stops that are permitted only for the specific purpose of protecting the nation’s borders. They cannot become general drug-search or other law enforcement efforts.
- However, these stops by Border Patrol agents are not remaining confined to that border security purpose. On the roads of California and elsewhere in the nation – places far removed from the actual border – agents are stopping, interrogating, and searching Americans on an everyday basis with absolutely no suspicion of wrongdoing.
- The bottom line is that the extraordinary authorities that the government possesses at the border are spilling into regular American streets.
Computer World reports today:
Border agents don’t need probable cause and they don’t need a stinking warrant since they don’t need to prove any reasonable suspicion first. Nor, sadly, do two out of three people have First Amendment protection; it is as if DHS has voided those Constitutional amendments and protections they provide to nearly 200 million Americans. Don’t be silly by thinking this means only if you are physically trying to cross the international border. As we saw when discussing the DEA using license plate readers and data-mining to track Americans movements, the U.S. “border” stretches out 100 miles beyond the true border. Godfather Politics added:
But wait, it gets even better! If you live anywhere in Connecticut, Delaware, Florida, Hawaii, Maine, Massachusetts, Michigan, New Hampshire, New Jersey or Rhode Island, DHS says the search zones encompass the entire state.
Immigrations and Customs Enforcement (ICE) and Customs and Border Protection (CBP) have a “longstanding constitutional and statutory authority permitting suspicionless and warrantless searches of merchandise at the border and its functional equivalent.” This applies to electronic devices, according to the recent CLCR “Border Searches of Electronic Devices” executive summary [PDF]:
Fourth Amendment – The overall authority to conduct border searches without suspicion or warrant is clear and longstanding, and courts have not treated searches of electronic devices any differently than searches of other objects. We conclude that CBP’s and ICE’s current border search policies comply with the Fourth Amendment. We also conclude that imposing a requirement that officers have reasonable suspicion in order to conduct a border search of an electronic device would be operationally harmful without concomitant civil rights/civil liberties benefits. However, we do think that recording more information about why searches are performed would help managers and leadership supervise the use of border search authority, and this is what we recommended; CBP has agreed and has implemented this change beginning in FY2012. First Amendment – Some critics argue that a heightened level of suspicion should be required before officers search laptop computers in order to avoid chilling First Amendment rights. However, we conclude that the laptop border searches allowed under the ICE and CBP Directives do not violate travelers’ First Amendment rights.
The ACLU said, Wait one darn minute! Hello, what happened to the Constitution? Where is the rest of CLCR report on the “policy of combing through and sometimes confiscating travelers’ laptops, cell phones, and other electronic devices—even when there is no suspicion of wrongdoing?” DHS maintains it is not violating our constitutional rights, so the ACLU said:
If it’s true that our rights are safe and that DHS is doing all the things it needs to do to safeguard them, then why won’t it show us the results of its assessment? And why would it be legitimate to keep a report about the impact of a policy on the public’s rights hidden from the very public being affected?
As ChristianPost wrote, “Your constitutional rights have been repealed in ten states. No, this isn’t a joke. It is not exaggeration or hyperbole. If you are in ten states in the United States, your some of your rights guaranteed by the Bill of Rights have been made null and void.”The ACLU filed a Freedom of Information Act request for the entire DHS report about suspicionless and warrantless “border” searches of electronic devices. ACLU attorney Catherine Crump said “We hope to establish that the Department of Homeland Security can’t simply assert that its practices are legitimate without showing us the evidence, and to make it clear that the government’s own analyses of how our fundamental rights apply to new technologies should be openly accessible to the public for review and debate.”Meanwhile, the EFF has tips to protect yourself and your devices against border searches. If you think you know all about it, then you might try testing your knowledge with a defending privacy at the U.S. border quiz.
Wired pointed out in 2008 that the courts have routinely upheld such constitution-free zones:
Federal agents at the border do not need any reason to search through travelers’ laptops, cell phones or digital cameras for evidence of crimes, a federal appeals court ruled Monday, extending the government’s power to look through belongings like suitcases at the border to electronics. The 9th U.S. Circuit Court of Appeals sided with the government, finding that the so-called border exception to the Fourth Amendment’s prohibition on unreasonable searches applied not just to suitcases and papers, but also to electronics. Travelers should be aware that anything on their mobile devices can be searched by government agents, who may also seize the devices and keep them for weeks or months. When in doubt, think about whether online storage or encryption might be tools you should use to prevent the feds from rummaging through your journal, your company’s confidential business plans or naked pictures of you and your-of-age partner in adult fun.
Paintings by Anthony Freda: www.AnthonyFreda.com.
The 5th Amendment addresses due process of law, eminent domain, double jeopardy and grand jury:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
But the American government has shredded the 5th Amendment by subjecting us to indefinite detention and taking away our due process rights.The government claims the right to assassinate or indefinitely detain any American citizen on U.S. citizen without any due process. And see this.As such, the government is certainly depriving people of life, liberty, or property, without due process of law.There are additional corruptions of 5th Amendment rights – such as property being taken for private purposes.The percentage of prosecutions in which a defendant is denied a grand jury is difficult to gauge, as there is so much secrecy surrounding many terrorism trials.Protection against being tried twice for the same crime after being found innocent (“double jeopardy”) seems to be intact.
Image by William Banzai
The 6th Amendment guarantees the right to hear the criminal charges levied against us and to be able to confront the witnesses who have testified against us, as well as speedy criminal trials, and a public defender for those who cannot hire an attorney:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Subjecting people to indefinite detention or assassination obviously violates the 6th Amendment right to a jury trial. In both cases, the defendants is “disposed of” without ever receiving a trial … and often without ever hearing the charges against them.More and more commonly, the government prosecutes cases based upon “secret evidence” that they don’t show to the defendant … or sometimes even the judge hearing the case.The government uses “secret evidence” to spy on Americans, prosecute leaking or terrorism charges (even against U.S. soldiers) and even assassinate people. And see this and this.Secret witnesses are being used in some cases. And sometimes lawyers are not even allowed to read their own briefs.Indeed, even the laws themselves are now starting to be kept secret. And it’s about to get a lot worse.True – when defendants are afforded a jury trial – they are provided with assistance of counsel. However, the austerity caused by redistribution of wealth to the super-elite is causing severe budget cuts to the courts and the public defenders’ offices nationwide.Moreover, there are two systems of justice in America … one for the big banks and other fatcats, and one for everyone else. The government made it official policy not to prosecute fraud, even though fraud is the main business model adopted by Wall Street. Indeed, the largest insider trading scandal of all time, illegal raiding of customer accounts and blatant financing of drug cartels and terrorists have all been committed recently without any real criminal prosecution or jail time.On the other hand, government prosecutors are using the legal system to crush dissent and to silence whistleblowers.And some of the nation’s most powerful judges have lost their independence … and are in bed with the powers-that-be.
The 7th Amendment guarantees trial by jury in federal court for civil cases:
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
As far as we know, this right is still being respected. However – as noted above – the austerity caused by redistribution of wealth to the super-elite is causing severe budget cuts to the courts, resulting in the wheels of justice slowing down considerably.
The 8th Amendment prohibits cruel and unusual punishment:
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
Indefinite detention and assassination are obviously cruel and unusual punishment.The widespread system of torture carried out in the last 10 years – with the help of other countries – violates the 8th Amendment. Many want to bring it back … or at least justify its past use.While Justice Scalia disingenuously argues that torture does not constitute cruel and unusual punishment because it is meant to produce information – not punish – he’s wrong. It’s not only cruel and unusual … it is technically a form of terrorism.And government whistleblowers are being cruelly and unusually punished with unduly harsh sentences meant to intimidate anyone else from speaking out. They are literally being treated as terrorists.
The 9th Amendment provides that people have other rights, even if they aren’t specifically listed in the Constitution:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
We can debate what our inherent rights as human beings are. I believe they include the right to a level playing field, and access to safe food and water. You may disagree.But everyone agrees that the government should not actively encourage fraud and manipulation. However, the government – through its malignant, symbiotic relation with big corporations – is interfering with our aspirations for economic freedom, safe food and water (instead of arsenic-laden, genetically engineered junk), freedom from undue health hazards such as irradiation due to government support of archaic nuclear power designs, and a level playing field (as opposed to our crony capitalist system in which the little guy has no shot due to redistribution of wealth from the middle class to the super-elite, and government support of white collar criminals).By working hand-in-glove with giant corporations to defraud us into paying for a lower quality of life, the government is trampling our basic rights as human beings.
The 10th Amendment provides that powers not specifically given to the Federal government are reserved to the states or individual:
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.
Two of the central principles of America’s Founding Fathers are:
(1) The government is created and empowered with the consent of the people and(2) Separation of powers
Today, most Americans believe that the government is threatening – rather than protecting – freedom … and that it is no longer acting with the “consent of the governed”.And the federal government is trampling the separation of powers by stepping on the toes of the states and the people. For example, former head S&L prosecutor Bill Black – now a professor of law and economics – notes:
The Federal Reserve Bank of New York and the resident examiners and regional staff of the Office of the Comptroller of the Currency [both] competed to weaken federal regulation and aggressively used the preemption doctrine to try to prevent state investigations of and actions against fraudulent mortgage lenders.
Indeed, the federal government is doing everything it can to stick its nose into every aspect of our lives … and act like Big Brother.
March 3rd 2013
Who’s Supreme? The Supremacy Clause Smackdown
When Idaho Governor C.L. “Butch” Otter signed HO391 into law on 17 March 2010, the “national” news media circled the wagons and began another assault on State sovereignty. The bill required the Idaho attorney general to sue the federal government over insurance mandates in the event national healthcare legislation passed. The lead AP reporter on the story, John Miller, quoted constitutional “scholar” David Freeman Engstrom of Stanford Law School as stating that the Idaho law would be irrelevant because of the “supremacy clause” of the United States Constitution.
In his words, “That language is clear that federal law is supreme over state law, so it really doesn’t matter what a state legislature says on this.”Now that Barack Obama has signed healthcare legislation into law, almost a dozen States have filed suit against the federal government, with Idaho in the lead. Battle lines have been drawn. Unfortunately, the question of State sovereignty and the true meaning of the “supremacy clause” may be swallowed up in the ensuing debate.
Engstrom’s opinion is held by a majority of constitutional law “scholars,” but he is far from correct, and Idaho and the thirty seven other States considering similar legislation have a strong case based on the original intent of the powers of the federal government vis-Ã -vis the States.
The so-called “supremacy clause” of the Constitution, found in Article 6, states, “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 [emphasis added].”
The key, of course, is the italicized phrase. All laws made in pursuance of the Constitution, or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the document.
A quick reading of the Constitution illustrates that national healthcare is not one of the enumerated powers of the federal government, so obviously Engstrom’s blanket and simplistic statement is blatantly incorrect, but his distortion of the supremacy clause goes further.
The inclusion of such a clause in the Constitution was first debated at the Constitutional Convention on 31 May 1787. In Edmund Randolph’s initial proposal, called the Virginia Plan, the “national” legislature had the ability to “legislate in all cases to which the separate states are incompetent” and “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union.” John Rutledge, Pierce Butler, and Charles Pinckney of South Carolina challenged the word “incompetent” and demanded that Randolph define the term. Butler thought that the delegates “were running into an extreme, in taking away the powers of the states” through such language.
Randolph replied that he “disclaimed any intention to give indefinite powers to the national legislature, declaring that he was entirely opposed to such an inroad on the state jurisdictions, and that he did not think any considerations whatever could ever change his determination [emphasis added].” James Madison, the author of the Virginia Plan, was not as forthcoming as to his sentiment. Ultimately, Madison preferred a negative over State law and wished the national legislature to be supreme in call cases. But he was not in the majority.
The Convention again broached a federal negative on State law on 8 June 1787. Charles Pinckney, who presented a draft of a constitution shortly after Randolph offered the Virginia Plan, believed a national negative necessary to the security of the Union, and Madison, using imagery from the solar system and equating the sun to the national government, argued that without a national negative, the States “will continually fly out of their proper orbits, and destroy the order and harmony of the political system.” Such symbolism made for a beautiful picture, but it belied reality.
To most of the assembled delegates, the national government was not the center of the political universe and the States retained their sovereignty. Hugh Williamson of North Carolina emphatically stated he “was against giving a power that might restrain the states from regulating their internal police.”
Elbridge Gerry of Massachusetts was against an unlimited negative, and Gunning Bedford of Delaware believed a national negative was simply intended “to strip the small states of their equal right of suffrage.” He asked, “Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views?”
When the negative power was put to a vote, seven States voted against it and three for it, with Delaware divided (and Virginia only in the affirmative by one vote). Roger Sherman of Connecticut summarized the sentiment of the majority when he stated he “thought the cases in which the negative ought to be exercised might be defined.” Since the negative did not pass, such a definition was unnecessary.
Thus, the federal government was supreme only in its enumerated powers and it did not have a negative over State law. Supremacy had limits.
By the time the Constitution was debated in the several State ratifying conventions in 1787 and 1788, the “supremacy clause” galvanized opponents of the document. The Constitution, they said, would destroy the States and render them impotent in their internal affairs. The response from proponents of ratification illuminates the true intent of the clause. William Davie, a delegate to the Constitutional Convention from North Carolina and proponent of the Constitution, responded to attacks levied on the “supremacy clause” by stating that:
This Constitution, as to the powers therein granted, is constantly to be the supreme law of the land. Every power ceded by it must be executed without being counteracted by the laws or constitutions of the individual states. Gentlemen should distinguish that it is not the supreme law in the exercise of power not granted. It can be supreme only in cases consistent with the powers specially granted, and not in usurpations [emphasis added].
Davie wasn’t alone in this opinion. Future Supreme Court justice James Iredell of North Carolina argued that, “This clause [the supremacy clause] is supposed to give too much power, when, in fact, it only provides for the execution of those powers which are already given in the foregoing articles.If Congress, under pretence of executing one power, should, in fact, usurp another, they will violate the Constitution [emphasis added].”
Furthermore, in a foreshadowing of nullification, Iredell argued that, “It appears to me merely a general clause, the amount of which is that, when they [Congress] pass an act, if it be in the execution of a power given by the Constitution, it shall be binding on the people, otherwise not [emphasis added]. Other ratifying conventions had similar debates, and proponents of the Constitution continually reassured wavering supporters that the Constitution would only be supreme within its delegated authority.
Most bought their assurances, though to staunch opponents, the Constitution still vested too much power in the central authority. The States would lose their sovereignty, they argued, and as a result, these men demanded an amendment to the Constitution that expressly maintained the sovereignty of the States and placed limits on federal power. Even several moderate supporters of the Constitution embraced this idea.
Ultimately, the three most powerful States in the Union, New York, Massachusetts, and Virginia, demanded that a bill of rights be immediately added to the Constitution; near the top of those recommended amendments on every list, a State sovereignty resolution. These ultimately became the Tenth Amendment to the Constitution, which reads, “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.”
Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States.
Several other constitutional “scholars” have weighed in on the debate in the last week, and each has invoked the “supremacy clause” to defend their opposition to State action against healthcare. Duke Law Professor Neil Siegel went so far as to suggest that the States are not reading the Tenth Amendment correctly. In perhaps the most outlandish statement of the debate, he also said, “Any talk of nullification bothers me because it’s talk of lawlessness.”
I guess Mr. Siegel has failed to consider that Idaho bill HO391 was passed by a legitimate legislative body elected by the people of the State. That would make it lawful.
Of course, this debate ultimately boils down to loose interpretation verses strict construction. Thomas Jefferson had the best line on this issue. When asked to read between the lines to “find” implied powers, Jefferson responded that he had done that, and he “found only blank space.”
The original intent of both the “supremacy clause” and the Tenth Amendment indicate that Idaho and the other States challenging Obamacare are justified and correct and that the legal profession is either in the tank for the federal government or has not read either the debates of the Constitutional Convention and/or the State ratifying debates. This should make people like Engstrom and Siegel, rather than legitimate State law directed at unconstitutional authority, irrelevant.
Brion McClanahan holds a Ph.D. in American History from the University of South Carolina and a faculty member at Tom Woods’ Liberty Classroom. He is the author or co-author of four books, The Founding Fathers Guide to the Constitution, Forgotten Conservatives in American History (with Clyde Wilson), The Politically Incorrect Guide to the Founding Fathers, and The Politically Incorrect Guide to Real American Heroes (forthcoming, November 2012). Find him on Facebook and YouTube.