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 :: Posted by Limited Government on 08-21-2017

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The Supremacy Clause Does Not Make The Federal Government Supreme

 :: Posted by Limited Government on 03-15-2013

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. by

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.

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The Astonishing Ron Paul

 :: Posted by Limited Government on 12-23-2012

As 2012 draws to a close, it’s hard not to be reminded that 2013 will begin with Ron Paul retired from Congress. For all those years he was a fearless truth-teller, who exposed and denounced the horrors, domestic or foreign, of the regime. His farewell address – something practically unheard of for a congressman in the first place – will continue to be read years from now, as future Americans look back with astonishment that such a man actually served in the US Congress.

For most of his career, those speeches were delivered to a largely empty chamber and to audiences of modest size around the country. A man of Ron’s intelligence could have grown in stature and influence in no time at all had he been willing to play the game. He wasn’t. And he was perfectly at peace with the result: although he wasn’t a major political celebrity, he had done his moral duty.

Little did he know that those thankless years of pointing out the State’s lies and refusing to be absorbed into the Blob would in fact make him a hero one day. To see Ron speaking to many thousands of cheering kids, when all the while respectable opinion had been warning them to stay far away from this dangerous man, is more gratifying and encouraging than I can say. I was especially thrilled when a tempestuous Ron, responding to the Establishment’s description of his campaign as “dangerous,” said, you’re darn right – I am dangerous, to them.


Some people used to tell Ron that if only he’d stop talking about foreign policy he might win more supporters. He knew it was all nonsense. Foreign policy was the issue that made Ron into a phenomenon. There would have been no Ron Paul movement in the first place had Ron not distinguished himself from the pack by refusing to accept the cartoonish narrative, peddled not only by Rudy Giuliani but also by the luminaries of both major political parties, accounting for the origins of 9/11.

How many bills did he pass, right-wing scoffers demand to know. A successful Republican politician, in between his usual activity of expanding government power, is supposed to have rearranged the deck chairs on the Titanic five or six times, by means of bills with his name on them. At best, the bills these politicos boast about amounted to marginal changes of momentary significance, if even that. More commonly, even the bills they trumpeted turned out to be ambiguous or actually negative from a libertarian standpoint.

What is Ron’s legacy? Not some phony bill, of zero significance in the general avalanche of statism. For his legacy, look around you.

The Federal Reserve, an issue not discussed in American politics in a hundred years, is under greater scrutiny now than ever before. Austrian economics is enjoying a rebirth that dwarfs the attention it received when F.A. Hayek won the Nobel Prize in 1974 – and when you ask people how they heard about the Austrian School, the universal answer is Ron Paul. One man brought about this intellectual revolution. How’s that for a legacy?


And that’s not to mention how many people Ron introduced to libertarian thought in general, or how many hawks reconsidered their position on war because of Ron’s arguments and example.

Even the mainstream media has to acknowledge the existence of a whole new category of thinker: one that is antiwar, anti-Fed, anti-police state, and pro-market. The libertarian view is even on the map of those who despise it. That, too, is Ron’s doing.

Young people are reading major treatises in economics and philosophy because Ron Paul recommended them. Who else in public life can come close to saying that?

How many bills did he get passed? Talk about missing the point.

Where are the hordes of students dying to learn from Herman Cain, Michele Bachmann, Rick Santorum, Newt Gingrich, Tim Pawlenty, or Mitt Romney?

Remember, too, that in politics there’s always some excuse for why the message of liberty can’t be delivered. I have to satisfy the party leadership. I have to keep the media off my back. The moment is inopportune. My constituents aren’t ready to hear it – so instead of explaining myself and persuading them, I’ll just keep my mouth shut, or minimize my position to the point where I sound like any old politician, except ten percent better.

And all the while, would-be donors are assured that this is all a facade, that the politician is really one of us and not what he appears to be. For the time being, you understand, he has to contradict his core beliefs in order to ingratiate himself into the favor of those whose support he will one day need.

Once elected, he still cannot really say what he thinks. Don’t you want him to get re-elected?


Ron never acted this way. At times he would explain the libertarian position in ways likely to resonate with a particular audience, but he never compromised or backed away.

It’s been said that if you ask Ron Paul a question, he gives you a straight answer. That’s an understatement. All through his presidential campaigns he sent the guardians of opinion into hysterics. Why, he can’t say that! That wasn’t even one of the choices! To the gatekeepers’ astonishment, his numbers kept on growing.

No politician is going to trick the public into embracing liberty, even if liberty were his true goal and not just a word he uses in fundraising letters. For liberty to advance, a critical mass of the public has to understand and support it. That doesn’t have to mean a majority, or even anywhere near it. But some baseline of support has to exist.

That is why Ron Paul’s work is so important and so lasting.

Ten years from now, no one will remember the men who opposed Ron in the GOP primaries. Half of them are forgotten already. But fifty years from now (and longer), young kids will still be learning from Ron: reading his books, following his recommendations for further study, and taking inspiration from his courage and principle.

With Ron’s Congressional career drawing to a close, we should remember that we have witnessed something highly unusual, and exceedingly unlikely to be repeated. And we should also remember Ron’s parting advice: the real revolution is not in Washington, DC. It’s in the world of ideas.

That’s what Ron is devoting the rest of his life to, and it’s one more thing he has to teach us. So watch for news of his institutionalized work for peace, his homeschooling curriculum, his homepage, and his TV network. Far from retiring, Ron Paul is stepping up his work for liberty. And in this work, there is a place for all of us.

December 21, 2012
By Llewellyn H. Rockwell, Jr. –

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Why Does Congress Willingly Give Up Its Powers To The Executive Branch?

 :: Posted by Limited Government on 12-09-2012

Why Does Congress Willingly Give Up Its Prerogatives To The Executive Branch?

The growth in power that the Executive Branch has experienced cannot be blamed upon a single individual, institution, or group. Responsibility for the vast power the President wields in US politics can be equally attributed to congress, each President, the Judicial Branch, the media, and the people of the United States. Blame should be assigned to Congress for ceding their legislative authority and also to the Presidents that have abused their power through use of executive privelege, executive orders, and waging of war without a Congressional declaration. The Supreme Court is at fault for affirming the power of these powers ceded to the Executive Branch. The media has aided the growth in power by creating a national narrative which depicts the Executive Branch as the originator and executor of legislation. Lastly, the people have allowed the balance of power to be distorted beyond recognition by not holding our electing official accountable to the Constitution.

The authors of the Constitution intended the Executive Branch to be the executor of policies legislated by Congress. The Constitution assigned certain prerogatives to each branch for a reason and did not define the role of the Executive Branch to include competition with the Legislative Branch in molding policy. This becomes especially relevant when discussing the Executive Branch’s abuse of power when claiming the power of executive privilege.

In an article published on this website in June of this year, President Obama’s use of executive privilege to protect Attorney General Eric Holder from being held in contempt was scrutinized. Holder withheld documents associated with the Fast and Furious scandal and Obama had his back.

Executive privilege basically gives the POTUS the power to protect himself and other members of the Executive Branch, under the guise of National Security, by way of resisting certain subpoenas and other information inquiries from the Judicial or Legislative Branches of government. Although the Supreme Court legitimized the use of executive privilege in United States v. Nixon, the abuse of executive privilege has further distorted the supposed balance of powers between the three branches of government. Throughout history, the power has been claimed to prevent a President from being forced to release potentially criminal or embarrassing information tied to the Executive Branch and then the claim has been followed by producing a partial release including only uncontroversial documents that were requested.

In addition to executive privilege, the powers of the Executive Branch have grown with the use of executive orders. Executive orders are supposedly based on preexisting laws. Once signed, an executive order has the force of law and is able to serve as the basis for challenging in court. Bill Anderson, in an article posted on in 2007, describes the dangers associated with the use of executive orders.

The Constitution of the United States is a marvelous document that carefully attempts to lay a balance of power from the central government to the states and also within the central government itself. As Jacob Hornberger and others have noted in this publication, the original decentralist principle of spreading political power among the states has been steadily replaced by the centralization of power in Washington, D.C.

“While we have dealt often with the fact that power has moved from the states to the central government, another power shift has gone on within the central government itself, as power has shifted from both the legislative branches and the courts to the executive branch. Furthermore, there is an element of the executive branch that is almost impervious to change, that being the established bureaucracies, where policies are made by employees who, in effect, are tenured and who have managed to accumulate powers for which there is no antidote.

The ultimate problem comes when the White House and the bureaucracies effectively join forces in order to impose various political orders that almost are impossible to overturn once they come into force. Thus, any real balance of power has long been abandoned, as the executive branch has accumulated powers that no other branch can — or is willing — to dislodge.

The Framers, who understood that concentration of power ultimately would mean that those people who held political authority could exercise their powers in tyrannical fashion, clearly did not wish for such a thing to happen. The genius of the Constitution was found not simply in the Bill of Rights (which was a recognition of the rights that people already held and which prohibited the central government from infringing those rights), but also in the way that the powers of the various political entities were separated. The idea was simple but profound: divide the powers that the state and federal governmental bodies are permitted to exercise.

In the last 30 years the “small government” President Ronald Reagan signed the most executive orders. Reagan slightly edged out Bill Clinton by a very small margin. In the last 100 years the greatest abuser of executive orders is not even close. Franklin Roosevelt signed more than 3 times more than any President in that time frame. Roosevelt clearly acted more as a King then a President during his time in office and he certainly did not respect the balance of powers assigned by the Constitution.

Why does Congress willingly give up its prerogatives to the Executive Branch?

The transformation of our federal government that has occurred since the Constitution was ratified is truly remarkable. What are even more troubling are the changes to the structure of the United States government and transfer of prerogatives that have occurred with almost no objection from Congress. The reasons these changes have met little resistance can be attributed to members of Congress being mindful of their own self interests, rather than the future of this nation. Executive orders and privilege were mentioned above, but equally troubling is the fumbling of the power to declare war to the Executive Branch.

People are drawn to power and desire all of the benefits that accompany it once accomplished. Gaining the appearance of power, without risking the catastrophic failures that can result when powerful people hurt or mislead the people they rule, is also an appetizing situation for many. This is the situation that many in Congress have embraced. By ceding more and more of their legislative power to the Executive Branch, they reduced the risk of ending up on the wrong side of an issue and not getting reelected. A great example of this was when Congress voted to authorize military force against Iraq in 2002. By authorizing the use of force and not declaring war, Congress supplied themselves an excuse if the war did not go well. The war did not go well, and the same politicians that voted to authorize force, would later claim they did not authorize President George W. Bush to use force in the manner he chose. Of course, our current President Barack Obama did not even go to Congress to ask for an authorization of force before starting a war with Libya. It is not hard to see the direction the destructive power to declare war is trending.

The founders had good reason to assign the power to write laws and declare war to the legislative branch. There is a calculated reason why members of congress are elected every two years. This duration gives the people the opportunity for a quick response at the ballot box if Congress passed legislation or entered this nation into a conflict that the populace did not favor. It is a shame that our elected officials chose to be unaccountable to the American people and focus on advancing their careers, rather than defending the Constitution from enemies foreign AND domestic.

{Editor’s Note: This is the 14th installment of a series of articles attempting to address the 32 questions posed by Ron Paul in his recent farewell speech given in front of Congress. Check out the previous installment, Why do we sacrifice so much getting needlessly involved in border disputes and civil strife around the world and ignore the root cause of the most deadly border in the world-the one between Mexico and the US?”}

Published on December 3, 2012 by in The Constitution

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Federal Appeals Court Orders DOJ Specifically Detail President Obama’s “Judicial Activism” Comments Regarding the Supreme Court

 :: Posted by Limited Government on 04-03-2012

ABA Journal: In response to a “judicial activism” comment by President Barack Obama, since clarified, about the health care law currently being reviewed for constitutionality by the U.S. Supreme Court, a federal appeals court judge overseeing a different health-care case has called for the Department of Justice immediately to provide a three-page single-spaced memo.

It should detail both the DOJ’s position and the views of U.S. Attorney General Eric Holder “in regard to the recent statements by the president, stating specifically and in detail in reference to those statements what the authority is of the federal courts in this regard in terms of judicial review,” said Judge Jerry Smith of the New Orleans-based 5th U.S. Circuit Court of Appeals during a Tuesday hearing, the Wall Street Journal Law Blog reports.
By On the Net
April 3rd, 2012

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Obama to Approve Indefinite Detention & Torture of Americans

 :: Posted by Limited Government on 12-14-2011

Published: 15 December, 2011, 02:28 – RT.COM

Less than a month after he threatened to veto terrifying legislation that would cease constitutional rights as we know it, Obama has revoked his warning and plans to authorize a bill allowing indefinite detention and torture of Americans.

After passing in the House of Representatives earlier this year, the National Defense Authorization Act for Fiscal Year 2012 went before the US Senate last week, where it was met with overwhelming approval. In the days before, the Obama administration issued a policy statement on November 17 saying explicitly that the president would veto the bill, as it would challenge “the president’s critical authorities to collect intelligence incapacitate dangerous terrorists and protect the nation.”

Opposition from the White House seemed all but rampant until RT revealed earlier this week that Senator Carl Levin told lawmakers that the legislation was altered because “the administration asked us to remove the language which says that US citizens and lawful residents would not be subject to this section.”

On Wednesday, White House Press Secretary Jay Carney said that those last minute changes yielded legislation that would “not challenge the president’s ability to collect intelligence, incapacitate dangerous terrorists and protect the American people,” and therefore “the president’s senior advisers will not recommend a veto.”

Originally the White House said that the administration objected to matters in the bill that applied to detainees. Under the act, Americans could be arrested and held indefinitely in military-run prisons and tortured without charges ever being brought forth, essentially making Guantanamo Bay a threat for every American citizen.

Under the legislation, a literal police state will be installed over the United States. Republican Congressman Ron Paul said earlier this week that “this should be the biggest news going right now,” as the legislation would allow mean “literally legalizing martial law.”

“This step where they can literally arrest American citizens and put them away without trial….is arrogant and bold and dangerous,” said the congressman and potential Republican Party nominee for president.

In its threat of a veto last month, the White House said it had similar sentiments, writing in an official statement from Washington that “The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects.”

“This unnecessary, untested and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals,” added the White House. “Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

Despite Obama’s promise from last month, a veto seemed questionable after it was revealed that the bill, which approves the budget for the Department of Defense, came at a price tag much lower than the president had asked for.

It is expected to be in Obama’s hands anytime this week.

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State Nullification v. Judicial Supremacy

 :: Posted by Limited Government on 02-09-2011

There was a time, in the early days of our Constitutional Republic, that the forces of monarchy and tyranny ran deeper than perhaps even today. In 1798, our would-be King John Adams and his Federalist henchmen in Congress trumped up war fever, a tyrant’s best friend, to pass a Sedition Law that made criticism of the President and Congress, interestingly the very ones who enacted this law, a jailable offense.

Vice President Thomas Jefferson, an opponent of the Federalists, who was inconveniently omitted from the protection of this law, jumped into action, but secretly for fear of the Federalists and prison where many of his colleagues in government and the press had been sent under this nefarious law.

Jefferson and James Madison drafted Resolutions that were passed by the Kentucky and Virginia legislatures respectively, whose principles can be summarized by this statement from Jefferson’s pen appearing in the Kentucky version:

“The principle and construction contended for 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 color of that instrument, is the rightful remedy.”

Many would assert the Constitution’s Supremacy Clause against the above, which provides that the Constitution and federal laws made pursuant to it are the supreme law of the land. But that clause instead unequivocally proves the validity of the Virginia and Kentucky Resolutions: if a federal law is not made pursuant to the Constitution, but is rather an invalid unconstitutional law, then it is not the supreme law of the land; it is not a law at all, and is therefore null and void.

What happened in the last 212 years that has kept these Principles of ’98 out of our consciousness? One of the key answers to this question contains the means by which to make the nullification movement far more effective going forward.

Over the past decades, every attorney and judge learns “Constitutional law” in our Law Schools, the bastions of nationalists and judicial supremacists. When we show up for our first day of class, we are not given the Constitution, even though it consists of about 7,500 words and we are otherwise expected to read tens of thousands of words nightly. Instead, we receive a very thick textbook, loaded with Opinions issued by the United States Supreme Court. We are told by our Professor that the Constitution is a living document, one that the Supreme Court breathes life into by interpreting, constructing and discerning the true meaning through consulting whatever they deem appropriate in their discretion, including changing societal trends, studies by Sociologists, international law and the like.

And to prove that this is the correct, valid, procedure for “making” Constitutional law, the very first case assigned is the one termed the most important in our history, the landmark 1803 case of Marbury v. Madison. Many Americans have heard of this celebrated case. Why?

Because in that case, Chief Justice John Marshall stated that the Supreme Court was duty bound, under the oath each Justice takes to support the Constitution, to treat unconstitutional laws of Congress as void, and of no force or effect.

Of course, Marshall’s ruling is an exact repeat of the very same principle found in those principles of ’98. Every judge, every Congressperson, every President, Governor and state legislator, in both levels of government, take that oath to support the Constitution.

The Marbury v. Madison ruling confirmed the same principle as the Virginia and Kentucky Resolutions: any federal or state government official is duty-bound under his or her oath, required by Article VI of the Constitution, to uphold the Constitution, and therefore must treat any unconstitutional law, action, or ruling of another branch of either level of government as void, and of no force or effect.

In other words, the very bedrock of the Supreme Court’s assertion of the power to nullify federal or state laws is identical to the one found in the Virginia and Kentucky Resolutions.

So how did the legal and judicial profession, and correspondingly most Americans, become conditioned to believe that his duty of nullification was exclusively reserved to the Supreme Court alone? Because the same essential principle, contained in the Virginia and Kentucky Resolutions, was lambasted by Federalists, desiring absolute national supremacy, as dangerous and wrong in the hands of the state legislatures as representatives of the sovereign people. But the same assertion was magically labeled “judicial review” when announced by the Chief Justice Marshall just five years later, implying a special supreme exclusive power carved out solely for those un-elected, life-tenured, completely unaccountable oracles on the Supreme Court.

Soon after Marbury v. Madison, the concept of judicial review was applied to the review of state laws, with the result that over the past two hundred years a small handful of federal laws have been invalidated by the Supreme Court while scores of state laws and rulings have been overturned.

Of course, when lawyers and judges complete law school without even reading the Constitution, instead learning from the vaunted faculty that the Constitution makes the Supreme Court the exclusive arbiter of that document, you are conditioned to believe it. And if lawyers and judges are so conditioned, then so will everyone, taking their cue from the respected legal and judicial profession allegedly charged with guarding our sacred Constitution. Of course, beyond the conditioning, there is a tremendous incentive for those in the legal field, particularly aspiring judges and Constitutional lawyers, to accept this alleged principle because it transfers power from the Constitution and sovereign people of the United States to them!

In fact, however, there is nothing in Marbury v. Madison to warrant such a supremacy, merely a statement that the Supreme Court, like any other branch of federal or state government, has the authority and duty of Constitutional review in determining whether another branch of its level, or the other level, of government has acted beyond the scope of its powers and infringed on the powers of the other.

In fact, it was not until 1958 that the Supreme Court finally found the audacity to boldly assert that it was, in fact, the sole, exclusive authority on the Constitution. In Cooper v. Aaron, the Court stated that Marbury v. Madison “declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution” and claimed that this alleged principle of judicial supremacy “has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.” And like sheep, we all believed this fraud – one that had been implicitly building for decades. But now, with this so-called “principle” clearly and authoritatively stated by the Court, a wave of even more overreaching violations of our sovereign right of republican self-government came down from on high.

Judicial supremacy has also created the toxic notion of judicial infallibility. In Planned Parenthood of Southeastern Pennsylvania v. Casey (1992), the Supreme Court refused to overturn its precedent regarding the right to abortion in Roe v. Wade on the basis that doing so would damage the rule of law and correspondingly undermine the Court’s legitimacy. The Court also cited the fact that people had come to rely on Roe. Thus, in the Court’s view, the correctness of Roe was not as important as the source, the Court itself, and the people’s reliance on the Court as if it were the Constitution itself. Only a supreme authority such as a monarch or British parliament, rejected by the American Revolution and Declaration of Independence, would assert that its credibility and unquestioned supremacy is paramount to the correctness of its edicts.

Meanwhile, and of equal importance, the Supreme Court, in its alleged role of neutral supreme arbiter of the Constitution, while striking down countless state laws, has rubber stamped the other two branches of its own federal government, the President and Congress, giving them carte blanche to do whatever they please, as we have so clearly witnessed increasingly over our own lifetimes.

So much activity to restore liberty and restrain the federal government has been misallocated toward obtaining the right Justices on the Supreme Court, and petitioning the Court to make the right decisions. We are playing the wrong game with the wrong chips, based on the erroneous concept that the Supreme Court, a branch of the federal government, is the exclusive arbiter of the Constitution and the scope of the powers it delegates to the federal government on the one hand, and reserves to the states and their people on the other.

We must topple this fiction, so deeply ingrained in the legal profession, our history books, and the collective mind of We the People, that Marbury v. Madison vested supremacy over the Constitution in the Supreme Court, when in reality it merely repeated the same principle declared five years earlier in the Virginia and Kentucky Resolutions of 1798: an unconstitutional law, action or ruling of the federal government is null and void, and the duty of every state governor, legislature, and court, under the oath they have taken to support the Constitution, is to so nullify it.

By Marty Babitz, New Jersey Tenth Amendment Center

Copyright © 2010 by Permission to reprint in whole or in part is gladly granted, provided full credit is given

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The Federal Government’s Enumerated Powers

 :: Posted by Limited Government on 12-14-2010

The Enumerated Powers are a list of items found in Article I, section 8 of the US Constitution that set forth the authoritative capacity of the United States Congress. In summary, Congress may exercise only those powers that are granted to it by the Constitution, and subject to explicit restrictions in the Bill of Rights and other protections found in the Constitutional text. The 10th Amendment states that all prerogatives not vested in the federal government nor prohibited of the states are reserved to the states and to the people, which means that the only prerogatives of the Congress (as well as the Executive Branch and the Judicial Branch) are limited to those explicitly stated in the Constitution.

Historically these powers have often been expanded to include other matters through broad interpretation of the enumerated powers by Congress and the Supreme Court of the United States.

Article I, section 8 of the US Constitution

  • The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [Altered by Amendment XVI "Income tax".]
  • To borrow money on the credit of the United States;
  • To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
  • To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
  • To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
  • To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
  • To establish Post Offices and Post Roads;
  • To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
  • To constitute Tribunals inferior to the supreme Court;
  • To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
  • To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
  • To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
  • To provide and maintain a Navy;
  • To make Rules for the Government and Regulation of the land and naval Forces;
  • To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
  • To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
  • To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And
  • To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

(From Wikipedia, the free encyclopedia)

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