Tuesday, September 24, 2013

A question for our elected representatives: Do you intend to live our lives for us?

I'd like to ask a few questions of my Missouri Senators, Roy Blunt & Claire McCaskill, similar to a short series of questions I asked a year ago.

"It's so much easier to pass judgment on a man than on an idea"
Sen. Cruz quoting from The Fountainhead
The questions start off simple enough: Do you expect to live your own life? It's a simple question. The answer to which determines whether or not you are an American, or are Anti-American

Too harsh? Too bad. Do you expect to be able to live your own life? Don't worry, there remains plenty of room within a 'yes' answer for us to find innumerable areas to disagree upon, but upon this one question, all further communication depends.

Do you expect to be able to live your own life?

If yes, then welcome to the club, the club which is populated with a subset of those living in America, who actually are Americans. Whether or not they were born here, or what their background was, or their skin color, religion, race is, I really don't give a damn about any of that. But how they answer that question, that is everything to me.

Now, if you do expect to be able to live your own life, doesn't that require that you be at liberty to make your own choices in and for your own life? Do you somehow also believe that you are able, capable, entitled, to make choices for how other people will have to live their own lives?... while still expecting to be free to live your own life?

s such a view compatible with equal Rights for all?
Is such a view compatible with equality under the law?
Is such a view compatible with any form of logical thought at all?

Have you considered this? Seriously, have you? Have you considered what it means to want to force others to comply with your wishes, while somehow being left free from their desire to force you to comply with their wishes?

They only way to do such a thing, is to abandon the Rule of Law, in favor of the turbulent Rule of Men using power to pursue their passions. The only way to do such a thing is to abandon Principles in general, and the principles that America was founded upon, in particular, trading what is Right and Wrong, for what some proclaim to be 'for the greater good!' - even yours, regardless of what you might choose as being good for you.

Don't bother criticizing me, try criticizing the idea behind it: Do you have the right to live your own life? Or not? Answer the question.

It is all well and good to want to see that every American has their health care needs met. Who doesn't? It is a laudable sentiment. One which, according to the left (and a great many willing accomplices on the Right), a majority of Americans agree with  (really?). But answer me this - is there any reason why you and your majority, can't associate together, to provide low cost health care to those who are in need of it?

Is there some level of efficiency which you feel 200+ new governmental bureaucracies, are going to contribute to providing your service, that you, focused upon your cause, couldn't provide yourself?

What is it? And why has Congress, the Unions and every corporation with any political power to speak of, sought an exemption from it?

You don't want to answer that, do you? What is it that the govt brings to the issue, other than the ability to compel, to force, through the IRS, everyone else to conform to your wishes, for living their life?

Do you really expect to be free to deprive others of their freedom? How long do you expect to remain one of the privileged 'others' and separate from the imposed upon 'we'?

Another question: Do you have such a low opinion of your fellow Americans, that you believe that the vast majority of them would not be favorable to your project, and would not contribute some measure of time, effort and money, towards your efforts to aid your fellow Americans?

Think of the unprecedented outpouring of donations to help victims of worldwide disasters in Japan, Indonesia, Haiti, Katrina, 911... why would you think your fellow Americans would be so stingy towards your efforts to help those in need right here, in your neighborhood?

What does that say about your allegedly 'good intentions'?

One last question, a rhetorical one borrowed from Thomas Sowell, how is it that you believe me greedy, mean spirited, etc, in wanting to remain free to make my own decisions and spend my money myself... and yet you don't find it greedy, mean spirited, etc, for you to want to take my money from me and deprive me of my liberty to make my own decisions about living my own life?

I would dearly love an answer to these questions.

And here's another question for our elected representatives, that I would dearly love an answer to:

Do you believe you were elected to represent people who wanted to live their own lives, or people who want you to live their lives for them? Do you believe that standing up for our right to live our own lives, is somehow a support for anarchy?

Sen. Blunt, Sen. McCaskill, do you intend to stand with Sen.'s Cruz, Lee, Paul & Rubio, to block the ObamaCare law which forces us to handle our healthcare according to how others insist we do? Or are you going to allow this law to deprive us all of our ability to live our own lives as we choose to?

To my fellow Americans, do you intend to sit back and allow your representatives to represent you as if you were their pets? Or will you, at the very least, call them, email them, Tweet them, that you expect something more American of their votes?

Really? Well I live in Missouri, so Show Me:

Lamar Alexander (R-TN) -- (202) 224-4944
Kelly Ayotte (R-NH) -- (202) 224-3324
John Barrasso (R-WY) -- (202) 224-6441
Roy Blunt (R-MO) -- (202) 224-5721
John Boozman (R-AR) -- (202) 224-4843
Richard Burr (R-NC) -- (202) 224-3154
Saxby Chambliss (R-GA) -- (202) 224-3521
Jeff Chiesa (R-NJ) -- (202) 224-3224
Dan Coats (R-IN) -- (202) 224-5623
Tom Coburn (R-OK) -- (202) 224-5754
Thad Cochran (R-MS) -- (202) 224-5054
Susan Collins (R-ME) -- (202) 224-2523
Bob Corker (R-TN) -- (202) 224-3344
John Cornyn (R-TX) -- (202) 224-2934
Mike Crapo (R-ID) -- (202) 224-6142
Mike Enzi (R-WY) -- (202) 224-3424
Deb Fischer (R-NE) -- (202) 224-6551
Jeff Flake (R-AZ) -- (202) 224-4521
Lindsey Graham (R-SC) -- (202) 224-5972
Chuck Grassley (R-IA) -- (202) 224-3744
Orrin Hatch (R-UT) -- (202) 224-5251
Dean Heller (R-NV) -- (202) 224-6244
John Hoeven (R-ND) -- (202) 224-2551
Jim Inhofe (R-OK) -- (202) 224-4721
Johnny Isakson (R-GA) -- (202) 224-3643
Mike Johanns (R-NE) -- (202) 224-4224
Ron Johnson (R-WI) -- (202) 224-5323
Mark Kirk (R-IL) -- (202) 224-2854
John McCain (R-AZ) -- (202) 224-2235
Mitch McConnell (R-KY) -- (202) 224-2541
Jerry Moran (R-KS) -- (202) 224-6521
Lisa Murkowski (R-AK) -- (202) 224-6665
Rand Paul (R-KY) -- (202) 224-4343
Rob Portman (R-OH) -- (202) 224-3353
Jim Risch (R-ID) -- (202) 224-2752
Pat Roberts (R-KS) -- (202) 224-4774
Marco Rubio (R-FL) -- (202) 224-3041
Tim Scott (R-SC) -- (202) 224-6121
Jeff Sessions (R-AL) -- (202) 224-4124
Richard Shelby (R-AL) -- (202) 224-5744
John Thune (R-SD) -- (202) 224-2321
Pat Toomey (R-PA) -- (202) 224-4254
David Vitter (R-LA) -- (202) 224-4623
Roger Wicker (R-MS) -- (202) 224-6253

Tuesday, September 17, 2013

Happy Birthday ya old Constitution! And many un-nullified returns! - Touching on Tyranny pt.5

Happy Birthday ya old Constitution! And many un-nullified returns! - Touching on Tyranny pt.5 
If you, as with some friends of mine, are wondering why I'm bothering with this nullification business, what with all the issues facing us today - Obamacare, budget bust, 2nd Amendment issues, Syria... - it is because very soon now, we are going to have to fight back against the cultural forces arrayed against our Liberty, and in that conflict simply defending our ground is not going to cut it. Our Rights and The Law whose purpose is to support them, must be thrust like daggers in the faces of those seeking to eliminate them, and if we want even a shred of a chance at succeeding, we are going to have to respond in some other way than politics as usual. We are going to have to wage a soundly pro-constitutional assault that will be able to strike our foes on several fronts at once, and if our side continues attempting to advance our position through faulty means, we will fail. In order to be able to effectively focus on the worthwhile measures, we've got to rid ourselves of the false cures that abound out there, distracting and sapping our strength, and the modern urge towards Nullification is one of the worst of them.

In the previous post in this series, I was looking into the first of Tom Woods' three summary points in support of his concept of nullification, interestingly, as you'll see, they are all variations on the theme of a state's unbreached sovereignty... which... was also one of the driving issues behind the creation and ratification of the Constitution, 226 years ago - Happy Birthday Constitution! - more on that in a few inches.

As with most of the modern day nullifiers, Woods asserts that our Constitution constituted what amounts to a confederacy of independent, wholly sovereign states, each populated with their own people, rather than a Union, and that while the Constitution affords these sovereign states the opportunity to share the burden in issues of defense & such, it can be opted out of whenever that alien-entity-which-states-have-no-responsibility-for:The-Federal-Govt, should intrude beyond what any state should decide is kosher. In the last post I pointed out how the first three words of the Constitution, 'We The People', effectively refutes this first assertion, as clearly today as it did 226 years ago (Happy Birthday Constitution!), and you are of course welcome to chime in on that aspect of the issue there.

Oddly enough though, most of the people who disagree with me on this, haven't felt up to stating their case, or challenging mine... but, as it appears they don't really have one, perhaps that's to be expected.

Better luck this time.

Woods' next summary point is that:
  • "2) In the American system no government is sovereign. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it."
The quick answer is: Yes to the first sentence, No to the second, and No to the implications of the third. Yes to the last two... but only after the preceding two have been corrected.

Betcha wish I could leave it at that... not gonna happen ;-)

A Sullied Sovereignty
As you can see, the wonder of sovereignty is appealed to again here, "The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government.", and again it is misrepresented and misapplied, and in more than one sense.

In the American system, 'We The People', note the singular, not plural, People not Peoples, are sovereign, again, singular, not plural, and in ratifying the constitution, in entering into a union of states, and the status, authority and sovereignty which those original thirteen states 'enjoyed' prior to the Constitution being ratified, was radically changed, and changed in part because people went from that of many particular peoples in many states, into one people, which, though retaining their several subdivisions of states, would from then on be one people, We The People.

Be clear on this: the sovereignty of the states as they stood before ratification of the constitution, was indisputably altered, intentionally so, by ratifying the Constitution as the Supreme Law of the Land. In the previous post I went over the revolutionary nature of those first three words of the Constitution, and the controversy they caused at the time. There are also other clauses as well in the Constitution, where that separate, unalloyed sovereignty, is clearly altered by the text of the Constitution which We The People debated and ratified. It was recognized to be altered by it, and as that alteration was controversial it was debated, and in the end it was ratified all the same, because it was judged to be superior to the state they were in as completely simple, single, solitary, sovereign states.

For those of you who harken to the siren song of unbreached sovereignty, you'd do well to read a letter circulated before the Constitutional Convention, by Madison, "Vices of the Political System of the United States", which makes very clear the dangerous nature of the then sovereign states. No fewer than 11 points,
1. Failure of the States to comply with the Constitutional requisitions
2. Encroachments by the States on the federal authority.
3. Violations of the law of nations and of treaties.
4. Trespasses of the States on the rights of each other.
5. want of concert in matters where common interest requires it.
6. want of guaranty to the States of their Constitutions & laws against internal violence.
7. want of sanction to the laws, and of coercion in the Government of the Confederacy
8. Want of ratification by the people of the articles of Confederation.
9. Multiplicity of laws in the several States.
10. mutability of the laws of the States.
11. Injustice of the laws of States.
Each of which he gives brief examples for, and he even goes on to identify a couple of their causes, which, not surprisingly, aren't very far from the same causes plaguing us today,
"These causes lie 1. in the Representative bodies. 2. in the people themselves."
If you've bought the lines of Woods & Co., that the Founders were singularly attached to the idea of unbreached sovereignty of independent states, and haven't even done so much homework as to look into why it was the Founders left the state of their states, for the state of our states under the Constitution - then look especially to the 2nd cause noted above.

Our Founders lived in states of unbreached sovereignty. They did not find it as appealing as our modern day nullifiers. They didn't however seek to replace that state for a National one, but of a mixture of the two, something wholly new upon the world stage, and it is imperative that you familiarize yourself with it.

One of those means of finding a new ground between confederacy of states and a national state, was one which touches upon #6 above, and it was one of those initial clauses of alarm for those who feared the Constitution was proposing a national government; it wasn't, but these clauses, such as Article IV section 4, needed to be examined and debated (and they were). It says:
"The United States shall guarrantee to every State a Republican form of government."
Take a moment and consider what that statement so clearly portends: it cannot be (honestly) denied that this places the Constitution in a position of authority over the very nature of the states constituted under it. No state could possibly be considered to retain an unalloyed independent sovereignty, when the form of government which that state might have otherwise expected to be able to choose for itself, has been so explicitly withheld and restricted to them, by another body. That is a radical alteration to the nature of sovereignty retained by any state entering into this union, be they of the original thirteen, or any of the thirty-seven states that have joined into the union, since then. And yes, this too was recognized to be an abridgment of their dear sovereignty, at the time.

Because it was seen by many to be alarming, it, as well as the other clauses, was argued over during ratification. One example of that, from the Massachusetts anti-Federalists:
"William Symmes to Capt. Peter Osgood, Jr.

15 Nov. 1787Storing 4.5.2
"The United States shall guarrantee to every State a Republican form of government."

Republics are either aristocratical or democratical: and the United States guarranty one of these forms to every State. But I disapprove of any guarranty in the matter. For though it is improbable, that any State will choose to alter the form of its government; yet it ought to be the privelege of every State to do as it will in this affair. If this regulation be admitted, it will be difficult to effect any important changes in State government. For the other States will have nearly as much to do with our government as we ourselves. And what Congress may see in our present constitution, or any future amendments, not strictly republican in their opinions, who can tell? Besides it is of no importance to any State how the government of any other State is administered, whether by a single magistrate or two, or by a king.

I therefore presume, that, as this clause meddles too much with the independence of the several States, so also it answers no valuable end to any or to the whole."
Fears such as these, and those expressed by Patrick Henry & others which I noted in the previous post, that the states would lose their accustomed sovereignty by ratifying the Constitution, were real fears, but they were fears which thorough discussion and debate ultimately concluded to be either wrongly perceived, or besides the point. It was gradually discovered that the Constitution did not mean only a National government, any more than it meant carrying forward with some form of an improved confederacy of distinctly sovereign ones - it meant something new and something more than either of those.

What ratifying the Constitution meant, was what it said, that the peoples of the several states were agreeing to unite, and that as We The People, would form a more perfect union, one which enabled them to retain their separate states, though in a manner that was reformed through the Constitution, strengthening the liberty and prosperity, of all.

An Ordered Union
It was unavoidable, and desirable, that some of the individual states traditional sovereign powers would be ceded to the union of states. Powers of war and treaty, such as in Article 1, Section 10, Clause 3, had to be relinquished. Even the power, as in the just noted Article IV section 4, to define themselves in any form other than a republican nature - had to be relinquished. In order to 'form a more perfect union - they did not do so lightly, and they did not do so without cause, and they did not do so without a great volume of debate. But the Constitution was formed so that a federal government would provide a reasonable means (and alternative to conflict and war) for all of the states to create, adhere, challenge and have recourse to, a common set of laws that could be trusted to be held supreme in all of the states of the union.

One of the many benefits of doing so, was that it enabled each state to share in the common defense and combined commerce, and Rights under law, and to do so while enjoying the support of their fellow states in securing these powers & rights for their citizenry, rather than having to fear the encroachment of those states (more on that later) upon the same.

While Woods and the nullifiers can't seem to grasp the concept of a Union of individual States, it really shouldn't be that difficult to understand. I went into this at some detail in the previous post, but if it's still hazy you might try looking at the same concept though in an entirely different context, such as that which is the basis for "Roberts Rules of Order". Seriously.

Anyone who has ever been part of a body of people which needed to organize themselves for effective discussion and action, has probably used this classic on enabling a body of people to do just that - as did the Framers in framing the Constitution - and as such you should already be familiar with it. If you read any narrative of the Federal Convention, you constantly read of how the convention " resolved itself into the Committee of the Whole", or into smaller Committees of Style, etc. Both the parts, and the whole, come from the union of all of the people involved, who then organize themselves as convenience and efficiency demand. It is possible, and common for many peoples to come together to form a single people, and then, without losing that singular nature, still resolve themselves into numerous distinct bodies, which interact, or return to one whole, as the needs of their purpose demands. It is almost commonplace to do so.

What was uncommon, was that our Founders realized that that same concept could be applied, not just to organizing a meeting, but to the organization of an entire nation, and they did just that,
"...in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity...".
Is that really that hard to grasp?

Unhand We...
It is an indisputable fact that prior to ratification, the thirteen original states were independent sovereign states, who had confederated under the Articles of Confederation, to associate with the other states. It is also an indisputable fact, that that confederacy, and the unalloyed sovereignty which made it so dangerously ineffective, was ultimately acknowledged to have failed - hence the Constitution being written and submitted for ratification to We The People.

When Woods speaks of "It is they who apportion powers ", he implies that his imagined several sovereigns have a direct hand in government, but both Madison and Hamilton noted that the distinctive feature of the Constitution, the feature that set it apart from all other ideas of governance in history, was the fact that neither "The People", nor the states, had any direct hand in the Constitution's govt, apportioning power or otherwise. From The Federalist Papers, papers written, it must be remembered, as a means of explaining, promoting and selling the Constitution to We The People during the ratification debates, Federalist #63:
"From these facts, to which many others might be added, it is clear that the principle of representation was neither unknown to the ancients nor wholly overlooked in their political constitutions. The true distinction between these and the American governments, lies IN THE TOTAL EXCLUSION OF THE PEOPLE, IN THEIR COLLECTIVE CAPACITY, from any share in the LATTER, and not in the TOTAL EXCLUSION OF THE REPRESENTATIVES OF THE PEOPLE from the administration of the FORMER. The distinction, however, thus qualified, must be admitted to leave a most advantageous superiority in favor of the United States...."
A central design feature of our Constitution, is that the Sovereign, what in Britain would be the King, and in America was to be We The People, were removed from active involvement in the machinery of power, for the same reason it was thought best to remove a king, as much as possible, from the hands on exercise of power - the lure to use it for your own satisfaction is too tempting. In our constitutional representative republican form of government, the actual sovereign doesn't exercise power, is instead to elect responsible, capable members to govern in their stead, because delegation and representation introduce a degree of separation from power, a buffer against impulse, so that cooler and more (hopefully) reasoned hands would be responsible for the exercise of governmental power, and who would themselves be answerable to a higher authority.

Not to the states, not to the peoples, but to the Sovereign, We The People.

Years later, in Madison's "Notes on Nullification", where he hotly opposed the entire notion of the then new twist on Nullification by the likes of John C. Calhoun, he pointed out a key flaw in the assumptions about Sovereignty which nullification rests upon:
"The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently that no portion of it can belong to the U.S ...."
This is an extremely important point, and applies to all of the points made by Woods & Co; they behave as if the states are in exactly the same state, in relation to We The People, as they were before the Constitution. That is simply not the case. Prior to We The People, when a legislator of one state or the other referred to 'The People', they were of course referring to only the people of their state, but after ratification, by means of the ratification of We The People, it referred to all of the people of the nation, whole, and within which, the States resided.

Madison's point continued:
"...But is not the Constn. itself necessarily the offspring of a sovn authy? What but the highest pol: authy. a sovereign authy, could make such a Constn.? a constn. wch. makes a Govt.; a Govt. which makes laws; laws which operate like the laws of all other govts.by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the Supreme law of the land; anything in the Constn or laws of the individual State notwithstanding.

And where does the sovy. which makes such a Constn reside. It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constn To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.

In like manner, the constns. of the States, made by the people as separated into States, were made by a sovereign authy by a sovereignty residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though shorn of so many of the essential attributes of sovereignty, the U. States by virtue of the sovereign attributes with wch they are endowed, may, to that extent, be sovereign, tho’ destitute of the attributes of which the States are not shorn.

Such is the political system of the U. S. de jure & de facto; and however it may be obscured by the ingenuity and technicalities of controversial commentators, its true character will be sustained by an appeal to the law and the testimony of the fundamental charter."
There is an unsettling implication of this nature of sovereignty in America, which Madison points out, and that is that it is not possible to blame the government, without first looking directly and deeply into the mirror at yourself. I've been coming to the opinion lately that this, more than anything else, illustrates why Nullification has gained such popularity in recent years, it enables us to blame someone else, whether the Federal Govt, or one political party or another, while giving ourselves a pass. But the truth is, that under our form of government, if you, a member of the true sovereign power, are unhappy with the direction of our government, to the extent that you have not yourself done your utmost to awaken, inform and move the opinions of your fellow Americans, then that is a measure of your own responsibility, or guilt, for the state of our union.

The attempt to make something, of nothing
Woods and his supporters, annoyed that an older and wiser James Madison attacked Calhoun's brand of Nullification as stingingly as he did, they attack Madison himself for being older and wiser, casting aspersions upon his age and some such supposed motivations they suspected him to have acquired in the 1830's, as opposed to his 'more legitimate' (in their eyes) opinions as expressed in the 'Kentucky Resolutions' as proposed in 1798. Here's an example:
"Madison’s later protests are feeble and incoherent. As Gutzman put it, “One of Madison’s most notable ‘tactical adjustments was his campaign, as a retired former president, to becloud the events of 1798 by denying they had meant what they plainly had meant.”"
What Woods & Co. do not do, that I have seen, is attempt to find fault with either Madison's logic in opposing the later interpretation of nullification or sovereignty - that of 1830, as opposed to 1798 - or his assessment of the nature of sovereignty, instead they attack his age and up hidden motivations he may have had in the 1830's, as opposed to 1798. But simply calling his later protests 'incoherent', without showing why, without pointing to or demonstrating the flaw in his argument, is nothing but an ad hominem, a logical fallacy, and is itself, incoherent.

Aside from the obvious motivations Madison surely did have, such as wishing to defend the Constitution which he and his fellow framers put such effort into creating and ratifying, the fact is that he does not, in 1830, contradict his positions of 1798... or of 1781 for that matter. Madison never supported the idea of a state countering or obstructing the laws of the union of states under the Constitution. He and Jefferson did feel that there needed to be action taken by the states in order to push back against the federal govt, yes, and so the Kentucky Resolutions were proposed, in hopes of stirring up matching sentiment in their sister states so that like-minded congressional action would follow from Congress!

Take a look at those words: The Kentucky Resolutions were proposed, there is a vital sense, and especially vital to Woods' reading of them, that is not contained in either of those words - Action. No nullifying actions , in the modern sense, meaning state laws passed to directly obstruct and confront federal laws, were taken against the Alien & Sedition laws!

What is even more interesting is that Woods never seems to consider the possibility that the nullification movement of the 1830's might just possibly have been the period which had actually lost the thread of understanding which the earlier period had a better grasp of, the modern nullifiers never seem to consider that it is their later interpretation which has been corrupted away from, the movement of 1798, which Jefferson & Madison led! For Woods & Co., it is simply 'self evident' that what they wish (need?) Jefferson & Madison  to have meant by Nullification, is better expressed by the later pro-slavers, such as Calhoun, of the 1830's, than by Jefferson & Madison themselves, in 1798. But this view can only be made by equivocating between what Madison and Jefferson clearly understood nullification to be, and which they spelled out quite clearly in the resolutions themselves, as having the same meaning and intent as what Woods & Co. cast it as today, which is deceptive at best.

Madison clearly meant what the Kentucky Resolutions said, to 'Protest the Federal Overreach'. What he & Jefferson had hoped to accomplish through the resolutions, was to stir up grassroots opinion throughout their sister states, in hopes that those states representatives would refrain from aiding in the execution of the objectionable federal laws, and to stir up, from the bottom up, a public outcry that would insist upon their representatives in congress effecting change, constitutionally, in congress, to repeal or replace those onerous federal laws.

Unlike the modern form being promoted by Woods & others, the Kentucky Resolutions did not mean, in any way shape or form, to obstruct or to pit state law against federal law. See how the harsher of the two pens, Jefferson's, made it abundantly clear that its purpose was only to protest them,
"... it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST."
[emphasis mine]
Wood's entire rebuttal to this, that I've seen (and while I've read several of his essays, I've not yet finished his book), is saying "What, do you think, that they went through all of that, JUST FOR A NON-BINDING RESOLUTION?!!!", and the answer to that silly question, found entirely in what they did say, and what they did not say, In Their Resolutions, is Yes, Tom, that is exactly what they did mean and intend, and had they intended something more by them, these two, Thomas Jefferson, author of the Declaration of Independence, and James Madison, Father of the Constitution, revolutionaries, masters of language, philosophy & politics that they were... do you actually think that they settled for a non-binding resolution when they secretly thought it was right to do more? How can you possibly believe that if they had believed more was required of them, that it was right to do more, or that if they had intended more, that they would not have said and stated so?

Do you really think that these two, that they would not have moved political mountains in order to do more, if they truly felt it was their duty to do so? Do you really think that if they thought it was right, proper and wise for individual states to counter, obstruct, and oppose the union... you really think that would not have done just that? Seriously?

Yes, they were alarmed, they were frustrated, and they deeply desired that the rest of We The People saw things as they did... but the fact was, they did not see things as they did, and Jefferson & Madison realized that fact was far more than an error to be brushed aside and nullified, they realized that that judgment, in error though it may have been, was the very basis of representative government, and it was only properly battled through persuasion - first by the Kentucky & Virginia Resolutions, and after those failed, by a political campaign which brought about the Jeffersonian Revolution (why do you suppose Washington, Jefferson & Lincoln... and that other guy... are on Mt. Rushmore?).

To be blunt, what it comes down to, is that Woods & Co. rely upon your ignorance of the Kentucky & Virginia Resolutions, in order to transform Jefferson & Madison's intentions, into legitimizing support for their own purposes. Read the resolutions and read Jefferson's own thoughts on the matter, and judge for yourself.

Signs from the times
What the nullifiers also rarely mention, is that that initial attempt at nullification (which was a resolution of two states, not a single one... a small point, but worth noting nonetheless, as 'single state nullification' is what is commonly being urged today), was itself nullified by the vocal opposition of their sister states who reminded them that a law had been constitutionally passed by the union, and that they felt that no individual state had any business opposing what had already been decided and voted upon by all of the states.

Jefferson & Madison's proposals were roundly condemned by their fellow 'sovereign' states, The Virginia & Kentucky resolutions being held up as successful examples of nullification, were not seen as being all that noble or successful by the other supposedly sovereign states of the union. The other states' responses were not too sympathetic at the thought of one or two 'sovereigns' attempting to impose their judgment over the issue decided by all of the other 'sovereign' states together, such as this from Massachusetts:
"That the people in that solemn compact, which is declared to be the supreme law of the land, have not constituted the state legislatures the judges of the acts or measures of the Federal Government, but have confided to them the power of proposing such amendments of the Constitution, as shall appear to them necessary to the interests, or conformable to the wishes of the people whom they represent."
One synopsis points out:
"The state responses to the Kentucky and Virginia resolutions disappointed the Republicans. For example, Delaware considered the Resolves an "unjustifiable interference with the General Government." Rhode Island declared the Alien and Sedition Acts to be constitutional insofar as they promoted the general welfare of the United States. Rhode Island, Massachusetts, Vermont, and New Hampshire asserted that the Supreme Court was the ultimate authority for deciding the constitutionality of acts of Congress. Massachusetts proclaimed that liberty of the press was not interfered with, because true freedom of the press forbade only prior restraints. To their chagrin, Madison and Jefferson received not one favorable answer from the seven states that responded. The legislatures of the Republican-dominated southern states did not answer at all. According to Jefferson scholar Dumas Malone, the replies from the North and lack of responses from the South were not accurate gauges of public opinion. In any event, Kentucky reaffirmed its resolution, and Madison delivered his report of 1800, which considered the responses of the states at length and remains one of the clearest expositions of the Constitution."
Jefferson & Madison's Resolutions, however well intended, were not very well received. George Washington was so furious over them, that in a letter to Patrick Henry, he described their efforts as:
"... systematically and pertinaciously pursued, which must eventually dissolve the Union or produce coercion..."
I'm of course not supporting the Alien & Sedition Acts, but I am pointing out that while the 'nullification' which was directed towards the law, a law which was debated, passed and signed into law, had a total of only two states supporting it, Kentucky & Virginia, which were roundly condemned by their sister states for having done so. After participating in lawful debate, these two states were seen as attempting to impose a legislative do-over, after the legislative process they participated in didn't turn out as they wished.

Whether or not Jefferson & Madison intended it that way, the takeaway is that they were perceived as attempting to act outside of the law (I don't think their actions were, but that's not the point here), and that was understood to be the greatest of threats to all of the states and to the Sovereign.

The Resolutions were not only not a great success, they weren't a success at all, at least not if successfully nullifying a federal law was what success is meant to mean. In Virginia itself, James Thomson Callender was tried, convicted, sentenced and fined under the Alien & Sedition acts which the nullifies claim that Jefferson & Madison nullified.

Hellooo... clue!

With the lack of support, and outright condemnation of the resolutions by their sister states, Jefferson & Madison dropped the idea of particular states attempting to rouse their fellow states into re-acting against the legislation of the union of states, and instead re-directed their actions towards the opinions of We The People. That particular approach was a much greater success, as the Alien & Sedition acts provided fuel for the next national election, which Jefferson won, providing him the opportunity to advance beyond fragmented protest, an onto a unified assault with a legislative meat-axe upon what he saw as Federalist Courts, see the Repeal Act, and The Judiciary Act of 1802, and that is a precedent which, IMHO, I'd like to see a whole lot more of (and which we may have just seen an echo of in Colorado)!

Again, I have no problem whatsoever with States making clear their protest of federal laws which they view as unconstitutional, as long as they are made in a constitutional manner. Examples of that can be found in several states recent measures that legalize marijuana, and withdraw state support for federal bans, or the California County Sheriff, John D’Agostini, who stripped agents of the U.S. Forest Service of their law-enforcement powers in his county. State agencies make up a significant portion of the Federal Govt's ability to act, and if those state agencies abstain from participating in objectionable federal programs, that is a protest which cannot help but have real results, and which would draw serious attention to, and be a legitimate and lawful exercise of state powers, in order to counter perceived federal overreach, without pitting the State's powers, against the Federal Govt's powers.

But that is not what the modern nullifiers have in mind when they promote 'Nullification', they, as in Missouri's bill (vetoed, and thankfully sustained (though that 'success' is nearly as disturbing as if it had been overridden - more later)), that would have had local police and federal agents pulling guns on each other to defend 'their' law, as if it were nothing more than a turf war between rival gangs.

Yes, bad laws must be dealt with, but we they must be dealt with lawfully, or the law itself is lost. We'd do well to learn from our history, as Madison did, and leave the attempt to pit power against power outside the structure of law, far, far, behind us.

And with that, I'll call 'Strike two!' against the nullifiers 2nd summary point (care to dispute my call? Comments are open), and if I want this post out on Constitution Day, I'm afraid the third point, and strike, will have to wait till the next post.

Wednesday, September 11, 2013

One shot across the bow, and two shots in the foot

Quite the 24hr period.

In Colorado, some few citizens, turned into grassroots activists when rightfully offended at the thought of their political representatives usurping their fundamental rights as human beings, initiated and carried out an historic political accomplishment. One of them was on Dana Loesch's radio show today, talking about how they managed the recall of two state senators, one the majority leader of the senate, and explained their historic political accomplishment in words to the effect of:
"None of us are political scientists or anything, just Plumbers, HVAC workers, guys who just identify a problem and solve it."
An amazing accomplishment, and a true strike for the 2nd Amendment in particular, and for all of our rights in general - a strike against the lawmakers, rather than The Law itself.

Then we have the Show-Me state of Missouri, where, with a Republican majority in BOTH the House and the Senate, failed to override the Dem. Gov's veto of a very much needed tax cut.

A tax cut. The signature issue of the GOP was presented to our state legislature; with the Speaker of the House and a majority in the House, the Leader in the Senate and a majority in the Senate, they were presented with a signature GOP solution to our problem, and they were still unable to identify the problem and solve it.

Every single one of them understand that cutting onerous taxes enables greater prosperity and rising revenue for the state. And yet they allowed their emotional reaction to baseless fears and threats ('If you cut taxes, we'll cut 'education'!) to sway them from doing what they, everyone of them, knew to be right.

Not only did they know the tax cut to be right, but they voted for it, before they voted against it! These 17 schmucks are the John Kerrys of Missouri!

On the other hand, those selfsame political 'wise men', allowed themselves to be swayed by what is popularly thought to be a defense of the 2nd Amdt, yet is not only flawed but provocatively unconstitutional and destructive to the very rights it purports to defend.

Imagine that. Quite the contrast, isn't it? Political neophytes accomplish a near political impossibility, and professional politicians equipped with rare double majority power, couldn't accomplish what should have been a very, very, simple task.

Imagine something else.

If you imagine that these craven sots you've put in elective office to represent you, who can't even represent what they believe, let alone what they ought to understand, if you think that they are going to restore anything but their own power, at your expense... well... Show Me the fool who believes that, and I'll show you your future.
I sent two tweets early in the day,
, and
Sadly these few at least couldn't manage to read the meaning even one way. If you would prefer to show yourself a brighter future, you'd do well to find replacements for these fifteen intelligent idiots who wouldn't even overturn the one veto of HB 253 that every political bone in their body should have screamed out to them to do.

IOW, these are the people that Primaries are made for:
You can reach those fifteen GOP legislators for further comment:
Paul Fitzwater- Mo. 144 https://twitter.com/rep_fitzh20
Sue Entlicher- Mo 133
Dennis Fowler- Mo 151
Lyndall Fraker- Mo 137 https://twitter.com/Fraker4Mo
http://www.house.mo.gov/member.aspx?district=137 http://lyndallfraker.com/
Elaine Gannon- Mo 115
https://www.facebook.com/votegannon.org http://www.house.mo.gov/member.aspx?district=115
Kent Hampton- Mo 163
Jeff Messenger- Mo 130
Donna Pfautsch- Mo 201 https://twitter.com/DonnaPfautsch
Lyle Rowland- Mo 155
http://www.house.mo.gov/member.aspx?district=155 http://www.lylerowland.com/
Don Phillips- Mo 062
Craig Redmon Mo 001 https://twitter.com/RepCraigRedmon
Mike Thomson Mo 004
David Wood Mo 058
Lynn Morris Mo 140
https://www.facebook.com/morrisfor140 http://www.house.mo.gov/member.aspx?district=140 http://lynnmorris.org/
Nate Walker Mo 003

It will be remembered, and realized... no matter how much you'd like to forget

It will be remembered, and realized... no matter how much you'd like to forget

September 11, 2001 will not be forgotten - the lives lost, the destruction, the changes wrought in our lives - they have indelibly marked our lives and our futures.

But, the lessons that could have been learned... that's another matter. Even as we successfully recast the event as the tragedy, the loss as the lesson, then the seeds of even deeper tragedy are unavoidably sown.

The lessons that could have been learned have not just been forgotten, but swept aside in hopes that they will be forgotten. Hillary Clinton, in response to questioning before the senate about the administration & her response to events of September 11, 2011, I think sum them up best:
"What difference can it make."
Which is not to say that Pat Buchanan praising President Putin's peaceful offer, or Sen.'s McCain & Graham & Rep. King's pressing for faux-war to 'Send a message!' are no less illustrative of the same eternal refrain. That, that desire, that urge, to ignore what is and what has been happening all around you, what is affecting and even taking lives, all around you, in favor of what you wish were relevant, is a natural trait of mankind and has been for as long as we have been distinguishable as mankind.

The ability to face what we would rather not, is not a natural trait of man, it is an ability whose importance has only been realized on a few occasions in all of history, in only the highest of civilizations, and rarely for an appreciably extended period of time.

But asking 'what difference can it make', and deciding 'not enough', so that you can continue with your preferred concerns, and hoping that what you'd rather didn't make a difference could just be forgotten....

It will be remembered, and it will be realized in fact, probably right about the time you really have forgotten about it.

That's exactly the point which the future will read the history of our time, and cite it as what we were doomed to repeat.

The lives lost, the destruction, the changes wrought in our lives, are horrors that we can never forget, and never should - I only wish the same could be said for what we should have learned, and put into practice every day since then.

Instead we will probably simply continue to ask 'what difference can it make' about something we'd all rather was seen as being unimportant.

Monday, September 09, 2013

The Nullity of Nullification and the Revolutionary Nature of 'We The People'- Touching on Tyranny pt.4

Yesterday I restated the case that the greatest threat facing our liberty - and our very selves - is not our government, or politicians or even regulatory law; those are the means, but not the source and cause of what threatens us; but that the greatest threat facing us is our ignorance of what our Rights are, and why this nation was founded in the first place. One result of our failure to acknowledge this very real and looming threat, is that the types of remedies put forward to defend us, and to defend our Constitution, are not only ineffectual, but are derived from, and necessarily deepen, that ignorance, and so despite the best of intentions, they enlarge the threat.

One such example, one that has gained quite a following in recent years, is the nullity of constitutional defense known as Nullification (Missouri has an example of this in the news). This strategy is put forward by well meaning would-be defenders of our Constitution, many of whom I have a great deal of respect for, and it proposes to counter the very real problem of federal overreach, but by advocating local overreach; proposing to pass laws on the state level, which will counter, or nullify, the laws of the entire nation.

To put it more clearly, to uphold the Constitution and counter those actions of the Federal Govt which effectively nullify the Constitution from the top down, these (typically, but not always) libertarians propose nullifying our Constitution from the bottom up, through laws written to override those laws written and passed under the authority of our Constitution, which delegitimizes the Constitution even further.

Apparently useful phrases such as "Two wrongs don't make a right" have fallen into severe disuse... no doubt no longer considered to be part of our 'Common Core Curriculum'.

Lets take a moment and note what Nullification is, what its modern proponents claim it to be, and just a few of what the implications of those claims are. The chief defender of nullification today is Tom Woods, who defines it here, as:
"State nullification is the idea that the states can and must refuse to enforce unconstitutional federal laws."
While that is the sense which Jefferson & Madison had in mind when they proposed the Kentucky Resolutions (more on those later), and those resolutions are what Woods and modern libertarians claim to base their ideas of nullification upon, that is not the sense in which its proponents use the word today; it is at best a sanitized statement which hides, rather than conveys, what they mean and intend by the term nullification today.

Let me emphasize something here: States absolutely do have the power, and their citizens do have the Right (see the 10th and the 9th amendments), to withhold or withdraw the aid of their states in administering and enforcing federal laws which they find objectionable - that is within the constitutional powers of a state. IMHO, a legitimate argument could be made that that is even an expression of the checks and balances our constitution depends so much upon.

But that is not how nullification is thought of, or promoted, today.

Nullification in its modern sense, is the idea that those laws which have been passed by the requisite representation of their fellow states of the union and signed into law by those means provided for in the constitution (which is not to comment upon those laws constitutionality, only that they were passed in a constitutional manner, and so must be addressed or opposed in kind), can actually be made illegal in their state. See Missouri's own recent attempt at nullification, in the "Second Amendment Preservation Act". Understand, proponents do not simply mean withholding their assistance in carrying out the law, or withdrawing their state's administrative support (a potentially devastating blow to the federal governments plans to enforce a law), or making a strong resolution against certain federal laws - I'd be behind them all the way on that. I would even go along with laws passed as test cases to challenge the constitutionality of federal overreach. For instance, I've no problem with these clauses:

  • 4. It shall be the duty of the courts and law enforcement agencies of this state to protect the rights of law-abiding citizens to keep and bear arms within the borders of this state and from the infringements in subsection 3 of this section.
  • 5. No public officer or employee of this state shall have any authority to enforce or attempt to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section.
, so far so good. And even this,
  • 7. Any Missouri citizen who has been subject to an effort to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section shall have a private cause of action for declaratory judgment and for damages against any person or entity attempting such enforcement.
, while a bit provocative, there's an argument to be made that it could prompt a test case, at the Supreme Court or Ballot Box level, which might lead to fully airing and resolving the question of the federal governments attempt to infringe upon those Rights of ours which are protected by the 2nd Amendment.

But where they lose me, where our 'Second Amendment Preservation Act' loses me, is where it steps beyond a state's legitimate bounds and powers. And Power, no matter how friendly or tamed you might think it is, is not something that is wisely let off the short leash of the law - and especially not 'for a good reason' - it is always 'for a good reason' that the turn towards tyranny is taken, and it is always ignored because the people at the time tell themselves "Oh, but we won't do that..."! The 'Second Amendment Preservation Act' not only lets itself off the leash, it flexes its power and strikes out with it, using our state law to not only to obstruct & countermand federal law, but to pit law against law, with this:
  • 6. Any official, agent, or employee of the United States government who enforces or attempts to enforce any of the infringements on the right to keep and bear arms included in subsection 3 of this section is guilty of a class A misdemeanor.
IOW, as the Volokh Conspiracy pointed out,
"it goes on to make it a misdemeanor for a federal official to enforce federal law within the state"
IOW this 'law' would use (misuse) the power of the state, to turn federal agents into criminals for following their, our, law. You don't need to be able to say "Fort Sumter" to realize that when the "Supreme Law of the land" is made illegal in one or more states... there is not only trouble brewing, but the very concept of Law, let alone a nation of laws, is what is in the process of being nullified.

This needs looking into.

Wooden Heads
Woods provides an argument for Nullification which he describes as an extremely basic summary in three points, and I'll give a brief (um, keep in mind who just typed that word) synopsis of his synopsis. His first point is:
  • "1)The states preceded the Union. The Declaration of Independence speaks of “free and independent states” that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of individual states, which they proceeded to list one by one. Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention."
There are a number of things to look at in this first point - not so much for the points made, as for the point that those points seem to avoid making.

In saying that "The states preceded the Union. The Declaration of Independence speaks of “free and independent states”..." it's hard to resist grunting out a loud "Duh!" - for except for those few who've never seen a calendar, it is a stupidly obvious point to make, and not said to indicate or lead to any other point - of course there was no Union prior to its being created, and of course we had separate independent states prior to being constituted as one nation.

As when with a magician who clearly has a silver dollar in his had, flourishes his arms and says "I have here in my hand, a silver dollar", what I want to know is what he was hoping to distract my attention away from with such a statement of the obvious, and in this case, what Wood's words seem to distract most from, is the nature of what was created when those several states came together and ratified the constitution; it distracts from what could only have been created through their agreement to leave behind their earlier state, through uniting into a more perfect union, and distracts from the fact that not only were they separate, independent, sovereign states, but that they framed and ratified the Constitution in order to move beyond that! Woods notes: " they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted.", true, obviously, but he doesn't followup on another obvious point, perhaps for fear of nullifying his argument for nullification, that while such states,
“...have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.”
, those are the powers that the Constitution explicitly prohibits the states from exercising in Article 1, Section 10, Clause 3 of the Constitution which the people of the time, We The People, adopted!

Obviously the traditional sense of being sovereign states was being altered by the states ratifying the Constitution, as the constitution of all of the laws, of all of the states. The original Articles of Confederation Woods refers so often to, were very protective of the idea of states acting as sovereign entities, it was a central feature of them... and the Constitution was designed to replace those Articles, because they failed. Over a century before the phrase was coined that "Those who don't learn from history are doomed to repeat it", the people of the Founders era knew the history of the ancient Greek republics, the "warring states of Greece" and they chose to constitute a union rather than give history a chance to repeat itself again. More importantly, this first point distracts from what, in the Founders view, it was that created those initial states, and how.

Did the British Govt. create their states? Did the Founders think that? Have you ever thought about that?

And while we're at it, it is also worth considering why it was that in the charges within the Declaration of Independence, it is stated that,
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation"
Constitution? What 'Constitution'? They're obviously not referring to the Constitution which would not be thought of, let alone written, for another decade, so what Constitution are they referring to? And why singular, rather than plural? Clearly they were not referring to those states constitutions which had been, or were being, written, neither were they referring to the British (unwritten) Constitution, but to something very different and yet something that was common to all of the people of all of the states ('constitution', not 'constitutions')... why refer to that, rather than to the thirteen colonies turned states, except that there must have existed in their minds, something that was common to all of the colonies, and not, or no longer, common to the British people and the means by which the British Crown claimed power over them.

Another key lays in these words from those charges of the Declaration's noted above, of 'pretended Legislation'. What did they mean by noting that the King had given "... his Assent to their Acts of pretended Legislation"? Obviously the Parliament didn't just pretend to pass legislation, they actually passed several acts of legislation and they were busily attempting to enforce them, so what was it that, in the Founders eyes, made those acts into "Acts of pretended Legislation"? We'll come back to that in just a bit.

Revolutionary Words: We The People
It is difficult to give very much respect to the argument the nullifiers are trying to advance, when the substance of that argument, unadulterated state sovereignty, was the very first issue identified, debated, and dealt with, during the ratification conventions that were held within the several states, not by those state's governments.

Woods' lazy assumptions to the contrary, the Constitution was not submitted to the state governments to be debated and ratified - if it was, they would have debated and ratified it in their legislatures. Instead, it was submitted to conventions of the people of the several states. There, the people, not their state governments, met, discussed, debated, and ratified their intent to act, leaving behind the idea of "We The Many Peoples", and becoming "We The People" - which was a central purpose and requirement of, the constitution they voted to ratify.

The first three words of the Constitution are,'We The People', and while we may toss them off very casually today, they were a very controversial choice of words in their day. No less a personage than Patrick Henry was very much alarmed by those three words, and he made much of it during Virginia's ratification, such as where he said:
"...I have the highest veneration for those gentlemen; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of, We, the people, instead of, We, the states? States are the characteristics and the soul of a confederation. If the states be not the agents of this compact, it must be one great, consolidated, national government, of the people of all the states..."[emphasis mine]
Patrick Henry immediately grasped the difference in meaning between "We The People" and "We The States", and though he was wrong in seeing a purely national government in what the Constitution meant, he was hardly the only one during the long process of ratifying the Constitution, to realize that "States are the characteristics and the soul of a confederation", and as the Constitution speaks of "We, the people, instead of, We, the states", then what was being proposed was not a compact of sovereign states, but a replacement for that very condition - a condition which had already been tried and judged to have failed, hence the Constitution they were debating upon whether or not to ratify.

Pauline Maier, in her book "Ratification!", notes instances of this in several of conventions, such as in Pennsylvania's,
"Whitehill also objected to the Constitution's opening words, "We the People," which he said showed that the Constitution destroyed "the old foundation of the Union" --- a confederation of states---and built on its ruins "a new unwieldly system of consolidated empire" that was "designed to abolish the independence and sovereignty of the states." Two days later, after another delegate moved that the convention proceed to Article II, Smilie objected. "In his opinion," he said, the convention "had not yet got over the first six words of the Preamble.""
Maier also notes that Patrick Henry summed his first impression up as,
"Here is a revolution as radical as that which separated us from Britain," Henry said, since it endangered "our rights and privileges" and relinquished the states' sovereignty. It was wrong to ask "how your trade may be increased" or "how you are to become a great and powerful people." The only appropriate question was "how your liberties can be secured; for liberty ought to be the direct end of your Government.... Liberty the greatest of all earthly blessings---give us that precious jewel, and you may take everything else."
The argument was made, it was debated, and it was eventually understood that state sovereignty, singular, whole and complete, had to be modified by each individual state entering into a true union of all of the states, or the United States would no longer remain united.

The issue was argued and debated, and that 'confederation' and 'union' were very different concepts was clearly understood, though not necessarily ever fully agreed upon. It is, except as shorthand, nearly always shaky to say "The Founders thought this" as a whole on any particular thing, but on this count, whether or not they all agreed, We The People of the Founders Era understood that "We The People" had a very different meaning from "We The States", and the concept of sovereignty of the states before ratification of the Constitution, was a very different one from what resulted from ratification of the Constitution by We The People.

How so? The Declaration of Independence points the way to understanding this. Note that the Declaration states that,
"...Governments are instituted among Men, deriving their just powers from the consent of the governed..."
It does not say that governments derive their just powers from their governments, or from their governors, does it? Or from their legislators? Their point is clear, unlike Woods when he makes his point that "The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.", here the point seems to be a point which is unclear, overlooks much and assumes even more... and the entire justification for nullification relies on just such a lack of clarity and subtle misdirection.

That governments derive their just powers from the consent of the governed, is a central understanding of our Founders Era, which is just as correct today as it was then. Neither the Constitution, nor the Declaration of Independence nor the British Govt., bestowed sovereignty upon the States; that sovereignty came from and remained with the people's nature as human beings, a power that was delegated from them, from We The People, to the states. The states themselves do not, and never did, have that power themselves, which is why the states weren't appealed to for ratification of the Constitution, but the people were. That is the reason behind why the Constitution was submitted to ratification by We The People, and not We The States.

Justice Joseph Story's comments on the Preamble, from his Commentaries on the Constitution, in small part, notes:
"...The language is, "We, the people of the United States," not, We, the states, "do ordain and establish;" not, do contract and enter into a treaty with each other; "this constitution for the United States of America," not this treaty between the several states. And it is, therefore, an unwarrantable assumption, not to call it a most extravagant stretch of interpretation, wholly at variance with the language, to substitute other words and other senses for the words and senses incorporated, in this solemn manner, into the substance of the instrument itself. We have the strongest assurances, that this preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government. The obvious object was to substitute a government of the people, for a confederacy of states; a constitution for a compact...."
"We the people of the United States, in Order to form a more perfect Union..." was, and still is, a very revolutionary phrase; it was a hot-point of contention, much argued over, debated, and ultimately ratified in the understanding that the singular union which the former PeopleS of America were entering into, together, not separately, to form a more perfect union, was to have little or nothing to do with the old understandings of compacts or confederations which preceded it, it changed the nature of the states as they had existed prior to it, and their future relations to each other, through Union, rather than confederation.

Union, the joining of once separate pieces into a single body, is a very different term from Compact, that of closely packing still separate pieces together, and had they intended compact, I think they would have used that word, which was very popular at the time; and though often used in explanation of Union, of what it was 'like', it was not the word 'compact' that was chosen to be used IN the Constitution, Union was.


Just Powers That Be
What a Union is, is a question that is often lost on Woods, who rarely examines it any closer than a wry comment about marriage, such as:
"After all, the compact theory rests on the crazy idea that the creators of something precede the thing created, logically and temporally. Thus compact theorists actually think the bride and groom come before the marriage; we are evidently instead supposed to believe that first there is a marriage, and the marriage in turn creates the bride and groom."
Well, sorry to say, but that which he presents as 'a funny' nearly is what actually happens. Of course a man and a woman precede marriage, and bring it about, as did the sovereign states precede their constitutional union through ratification, but the ceremony of marriage is what creates their status as Bride and Groom, and only through the completion of the ceremony, do they become Husband and Wife - that's not something they can achieve on their own, nor can they claim those titles while remaining only A man and A woman. But it's not as though they cease being individuals when they marry, but that they cease being only individuals, and begin being something more, 'of one flesh', and that something more, marital union, affects aspects of their individuality and discretionary powers, just as the constitutionally created union of states, in addition to increasing the scope of each individual state, increases its interrelation and obligations to its fellow states in a way that treaties, alliances and compacts simply do not. While the structure of the states remained, their purposes, powers and the source of their Just Powers, was altered from being several distinct peoples, to being One People, who inhabit many states.

That 'neither fish nor fowl' was part and parcel of how the Constitution was promoted, sold to, and ratified by We The People. Maybe the one point most worth making here, is that today we have a Constitution, and we either work within it or we don't, but we don't get to claim we're doing both.

Locke made an important point on this issue in CHAPTER XIX. - Of the dissolution of government:
"§ 212.
Besides this overturning from without, governments are dissolved from within.

First, When the legislative is altered. Civil society being a state of peace, amongst those who are of it, from whom the state of war is excluded by the umpirage, which they have provided in their legislative, for the ending all differences that may arise amongst any of them; it is in their legislative, that the members of a commonwealth are united, and combined together into one coherent living body. This is the soul that gives form, life, and unity to the commonwealth: from hence the several members have their mutual influence, sympathy, and connexion; and therefore, when the legislative is broken, or dissolved, dissolution and death follows: for, the essence and union of the society consisting in having one will, the legislative, when once established by the majority, has the declaring, and as it were keeping of that will. The constitution of the legislative is the first and fundamental act of society, whereby provision is made for the continuation of their union, under the direction of persons, and bonds of laws, made by persons authorized thereunto, by the consent and appointment of the people; without which no one man, or number of men, amongst them, can have authority of making laws that shall be binding to the rest...."
A society under law, is a society that recognizes one set of laws common to all, else they would not be "A" society, but numerous associated states. Union is a word that changes the nature of those entering into it, we individually enter into marital unions, not marital compacts, and once entered into, we do not, and rightfully should not, either declare our intention to ignore the other or stroll on out of that union with a casual "Oh, hey, burnt toast again?! See ya!"

There is of course such a thing as divorce, but that again is something very different from breaking up or abandonment. As with divorce, it is something to be entered into carefully and methodically, and ultimately with the agreement of all of the parties involved, and never to be rushed into - failing that, a bitter and contracted dispute will ensue. Locke, again, had something to say on the issue, and he too saw it as inseparable from legislative union, continuing from where the previous quotation left off, as Locke put it in CHAPTER XIX. - Of the dissolution of government:
"§ 212. "... When any one, or more, shall take upon them to make laws, whom the people have not appointed so to do, they make laws without authority, which the people are not therefore bound to obey; by which means they come again to be out of subjection, and may constitute to themselves a new legislative, as they think best, being in full liberty to resist the force of those, who without authority would impose any thing upon them. Every one is at the disposure of his own will, when those who had, by the delegation of the society, the declaring of the public will, are excluded from it, and others usurp the place, who have no such authority or delegation.""[emphasis mine]
When legislation is written by those "...whom the people have not appointed so to do...", you have 'legislation without representation!', and they may be acted against.

But when you are represented, you are not free to behave as if your are not!

To do so is to rebel against the Union you are a part of. When one or more states take it upon themselves to act outside of the sphere of laws rightfully belonging to the union of them, and apart from any explicit agreements which constituted their union, they act to negate and nullify the whole... and only disaster can follow.

As Lincoln might say: "Been there, done that." (Note: I'd be willing to listen to such an argument concerning regulatory law, I think it could be made that there we truly do have 'legislation without representation!', and constitutionally, with Congress's ability to delegate its powers being the issue there, but that is not the position that nullifiers are promoting).

And with that first strike, I'd better pause here for the moment, and return with strikes two & three against Woods' summary argument for nullification, tomorrow.

Sunday, September 08, 2013

The Nullity behind the modern day nullification movement - Touching on Tyranny pt3

The Nullity behind the modern day nullification movement
June... it was June that I last had a chance to really put two thoughts together, beyond a scribbled note or email... but now that my project deadline has passed (successfully, yay), I've been doing just that, and... there are a lot of scribbled notes.

Are they about current headlines? Syria? Obamacare? Budget battles? Nope, afraid not - just the stuff that allowed those issues to become issues in the first place. Yep, tyranny, the constitution, its abuse, the false cures presented for curing it (such as Nullification), and those cures which I think hold real promise. So if you're looking for current events, you'll need to come back in a week after I've had a chance to free the timeless issues that have been breeding like rabbits in my head & notes.

Back in June, we left off with "Setting Tyranny Free", looking at Tyranny and what it really was, and wasn't, and where that left off brings us back around to those misguided few who are seeking to defend liberty and the constitution by destroying it, via the modern interpretation of 'Nullification' (my own Missouri has an example in the news). Because this false cure holds so much in common with so much else that ails us, I'm going to use the next few posts to dig into it from a few different perspectives.

The Nullity behind the modern day nullification movement
A month or so ago, while I was in deep denial over my not having any time at all, I got involved in an online discussion over the libertarian darling tyrannical cure all of Nullification, and my position that Nullification is at best a destructive nullity, prompted a frustrated supporter of it to ask me:
"If you lived in the 1700s, would you have sided with Sam Adams and Company or with King George?"
My immediate sleep deprived reaction was to take offense (where none was intended), but not just to the idea that I would not have stood with Samuel Adams, but to the idea that we are in a situation today that is similar to what Adams faced all those years ago. That idea pains me because it makes it painfully clear that too few people actually understand the nature of the threat that our Founders faced back in their day, or the even greater threat that we ourselves are facing today. And please, don't recite to me the charges of the Declaration of Independence as proof that we are in the same position, unless you simply want to prove to me that you don't understand the first thing about either the charges made by the Declaration of Independence, or the very basis for the Declaration itself - Yes, the charges are similar, but no, the context is not similar, and context always rules the roost.

To be clear, the ideas and positions that Sam Adams supported then, I wholeheartedly support and stand with today, including the thesis he argued for in earning his masters degree from Harvard (!), In 1743 - note that date, more than three decades before the Declaration of Independence - and that was:
"Whether it be lawful to resist the supreme magistrate, if the commonwealth cannot be otherwise preserved?"
But we are most definitely not in the same situation today, in regards to our government, as they faced then, and there is one passage from the Declaration which points towards the key difference between then and now,
"He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation"[emphasis mine]
There is though, most definitely, at least one similarity between ourselves today, and the colonists which Adams found himself surrounded with in his day, a situation which the rest of the Founders realized only after Adams efforts over decades woke them up to it. But before we can consider what the similarities and differences were and are, between then and now, we need to get a bit clearer on what it is that we face here and now, today; only then can we benefit from considering what it was which they understood the purpose and requirements of Law to be, and understand why the words "pretended Legislation" are key to both of these times - it was the violation inherent in that, which they considered the basis for their rebellion, and is key to the very different actions we must take in our time, if we want to enjoy the liberty that they secured for us in their time.

Here and Now
As I pointed out in that last post, the actual mechanism of tyranny operating in our world today is not the tyrannical tendency of power mad politicians, or even their disregard for the Constitution of our laws, but We The People's ignorance of what our Rights are, and the understanding of them that is required, in order for liberty to be upheld and maintained. Jefferson summed it up well in this line::
"If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be. The functionaries of every government have propensities to command at will the liberty and property of their constituents. There is no safe deposit for these but with the people themselves; nor can they be safe with them without information. Where the press is free, and every man able to read, all is safe."
Note: In what would no doubt be a shocker to Common Core proponents, Reading is more than, and a very different thing from, 'decoding 'informational texts'', or reciting words from a teleprompter. See Richard Mitchell's excellent riff on this thought of Jefferson's)
That critical ignorance casts a shadow over our ability to identify the real threats arrayed against us here and now, and in such a state we're easily misled into chasing after false cures which only intensify the tyrannical disease sapping our defenses, transforming our reasonable desires for safety and security into ever tastier morsels for the tyrants gullet.

True, the current scandals of the NSA, IRS, TSA and other typical 1984-ish fears are what grab the headlines, but probably only because our media is every bit as ignorant of our Rights, and probably more so, as most of We The People are. Of course these threats shouldn't be discounted, as I pointed out in the first post, but the veiled hand of ignorance is what should concern us most, that unseen hand of tyranny is progressively at work consuming our privileges, property and Rights by means of laws turned against the rights they were originally meant to uphold and defend.

And all with rarely even a mention in any of those attention grabbing headlines.

The awful reality is that in such a situation as ours, there's no need for an invading army, or even the threat of one, to strip us of what is ours by virtue of being human - it is a true and present danger to liberty, which, concealed by our ignorance of it, is advancing upon us every moment of every day. Examples are everywhere, from the IRS to the FDA, usually in the guise of laudable aspirations, politically correct feel good issues, such as the Dept. of Interior's recent "National Blueway designation" effort; as good an example of this as any. This boondoggle offered the lure of 'saving the environment!' through preservation and conservation, while what went out of sight and unmentioned, was that it would consume nearly 2/3's of Missouri's & Arkansas's property - most of which was owned by private individuals - by means of the those regulations which such do-goodery requires.

On the bright side, proving what an effective disinfectant that sunshine can be to the darkness of ignorance, an email campaign by concerned citizens derailed that particular plan (for now): "Feds Rescind White River's Blueway Designation"
"Seeking to quell a public backlash, the U.S. Department of the Interior dropped the White River on Wednesday from a new federal program that recognizes conservation and recreation efforts along waterways."
But you cannot ever take your eyes off the other hand, not even for a moment. The administrative state is a new breed of hydra, it doesn't wait for you to cut its head off to grow two others, it preemptively grows three heads in darkness before you ever see the first one, plus two for every one you do manage to catch sight of, and even then you've got to actively look for them to find them,
"Another federal agency MOU (Memorandum of Understanding) has been uncovered that involves the National Blueways, and it names the White River/Cache River Watershed as a watershed demonstration pilot!

Please take a few minutes to read this newly-found MOU . Give it time to upload, and pay attention to the terminology and language used. We are VERY concerned about what this entails. "
And while you're feeling good about having caught that particular threat, there are others such as this one from Alabama, where the state school board is working on passing regulations that will effectively outlaw home and private school educations - not to mention the several other items I did not mention, and who knows what else I never even knew of to mention.

Get the picture?

That is the nature of the ProRegressive's Administrative State; its motive power is the very real urge of smart (though critically ignorant) people to 'do good' (without ever defining what Good is), and their talisman of Regulatory Law, operates unseen, never sleeps and most insidious of all, what it consumes can remain visible and seemingly intact, so that you won't even know it's gone until you try to exercise your right to it. Regulatory Laws don't have to physically take property from you, to effectively take it from you - to think they do is to mistake their nature - this beast feeds more upon your rights, than your possessions, and under cover of our perverted modern understanding of law, it does so right out in the open, while claiming to have taken nothing from you at all.

Tyrannical Tidbits
That little morsel is perfectly expressed in Justice Kagan's recent dissent against a rare Property Rights victory, in "Koontz v. St. Johns River Water Management District"
"a requirement that a person pay money to repair public wetlands is not a taking. Such an order does not affect a “specific and identified propert[y] or propertyright[]”; it simply “imposes an obligation to perform an act”
So... 'simply “imposes an obligation to perform an act” merely imposes an obligation, and if that obligation should impose a financial or practical hardship... well.. that's 'simply' a bummer? It's simply a matter of 'you lose', and bears no relation to your lessening or loss of property due to the govt imposed obligation? Really?

For example, there's very little in the Dept. of Interior 'memorandum of understanding' would even mean taking the current property owners title to their land - it would only take their right to exercise their right to it, under the cover of various regulations covering the use - and forbidden use - of watershed designations... and their ability to maintain it to the govt's expectations. And should the owner lose that property due to their inability to measure up?... well... that's not taking, that's merely losing.

How's that possible?

Here's a test for you: can you identify the principle separating the EPA's imposing an obligation of obtaining environmental impact reports and other fees before construction can begin upon your property, from that which might require getting something such as a 'toleration impact' report from an HCA (Hate Crime Agency...what? You think that seems far-fetched? Why?), before writing an article? No, I didn't ask how outlandish that (might) still sound, I said can you identify the principle which makes one acceptable, and the other not?

That's how that's possible.

There is no difference in principle between the two, both are an infringement upon your fundamental Rights, and it is only what is still fashionable at the moment, which makes the later one seem as far fetched as the former one once seemed.

Regulatory Law accomplishes this not by the outright seizure of property, as your typically unimaginative old school communist thug might have done, but by the more nuanced approach of our modern intellectuals, not by taking it from you, but by denying you some part of your ability to exercise your right to use it (Progress, right?). In principle, to forcibly deny you even the least bit of what is rightfully yours, is a full denial of the principle of ownership... but in a people who have been educated away from Principle, and into Pragmatism, it's just 'a little thing'... right? And so little by little regulatory laws deny us our ability to do this or that - for the greater good of course - either outright, or maybe without a permit (to start), but the end result is the same - the Right of an Individual to their private property is eliminated in favor of the public interests in it... and those interests determined by a handful of powerful and well intentioned self styled elites.

And it is genius.

Over and over again, knowingly or not, Regulatory Laws have shown themselves to be the practical and progressive means of achieving Karl Marx's otherwise fanciful communist dream, which he himself summarized as:
"In this sense, the theory of the Communists may be summed up in the single sentence: Abolition of private property."
What gave such tyranny an inroad into American governance, and the means which justified it, is what I focused upon in the last post, the error in John Locke's description of what tyranny is, from his The Two Treatises of Civil Government (Hollis ed.) > CHAP. XVIII. Of TYRANNY,
"...And this is making use of the power any one has in his hands, not for the good of those who are under it, but for his own private separate advantage ..."[emphasis mine]
, that supposed escape clause from tyranny; that as long as your actions are performed for the 'Greater Good' your use of power over others is not tyrannical. That was perhaps an understandable oversight in the 16th, 17th and perhaps even 18th centuries, certainly a forgivable error on Locke's part in his time, from one of the greatest defenders and definers of Liberty, he after-all lacked the historical evidence and undeniably bloody effects which such an error produced. But we, who possess the entirety of the 20th century, and more, possess no such excuse, and our ignorance of it and its implications, is typical of how tyranny has gained a foothold in America, through Americans' best intentions' - and that is neither understandable nor forgivable.

Once again, it is our ignorance of what our Rights are and what they require, that serves as the magical means of transforming the Rule of Law into laws written to carry out the rule of the Rulers.

Being Realistic
I cannot emphasize this enough - we cannot fight the Administrative State through measures directed at its laws and regulations.

We Cannot.

We will never be able to encompass all of its strategies and modes of attack, not on the Federal level of legislative or the regulatory law, not on the State, County or Township levels, and certainly not in the educational system or the culture at large. Cannot.. Its motive power is ignorance, and that is a boundless source of power for those who are guided by it, and/or of those who are in pursuit of exploiting it.

People accuse me of not being realistic enough when I insist that Education must be a core focus of our efforts... and then they turn around and propose one or two, or sometimes even three new laws or measures (or IDEAL Candidates (!) - hey, how's that Rubio working out for ya?) which they seriously expect to be able to counter what are, not simply one or two opposing laws, measures, or candidates, but a nearly numberless array of laws, agencies, regulations, NGO's, foundations, educational systems, media and culture... all of which are stridently arrayed against us... and they are serious... and it's all I can do not to laugh in their faces.... I'M being unrealistic?!

Please. The only way, and I mean the only practical way, to effectively fight the ProRegressive Leviathan arrayed against us on all sides, and to do so with a view to victory, is through dispelling the darkness it thrives and feeds upon. Only through an understanding of what Rights are, and of what the purpose of Government and Law are in relation to them, and to the nature of Man, can anything resembling victory ever even hope to be achieved.

That should not be a surprise - that was what was required to inspire the idea of America in the first place, nothing less is required for continuing or reviving it.

Anything less, will only further the aims of our common enemy. Which finally brings us around to what modern day 'Nullification' actually is... tomorrow.