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The Balance of Powers Act – How People Are Destroyed For Lack of knowledge

publius-HuldahBy Publius Huldah

Our own Ignorance is destroying us.  Mark Twain wrote in his autobiography:

“In religion and politics people’s beliefs and convictions are in almost every case gotten at second-hand, and without examination, from authorities who have not themselves examined the questions at issue but have taken them at second-hand from other non-examiners, whose opinions about them were not worth a brass farthing.”

That is what has been going on in our Country for a very long time. Our “intellectuals” can’t think; our “scholars” parrot each other; the self-educated fixate on idiotic theories; no one studies original source writings; and The People jump on every bandwagon that rolls by.

In order to write intelligently on our Constitution, one needs to have studied and understood the original source writings of our Framers.  No matter what your educational level, if you don’t know what is in our Declaration of Independence and federal Constitution; and if you are not familiar from personal study with The Federalist Papers, The Kentucky and Virginia Resolutions of 1798, Madison’s Report on the Virginia Resolutions (1799-1800), and Madison’s Notes on Nullification (1834), among other original source writings, then you have no business writing about these issues.

But we are flooded with rubbish about the Constitution put out by law professors, history professors, Ph.Ds. of this or that, Heritage Foundation, those with no academic qualifications, and politicians. And none of them know what they are talking about!

And The People read their rubbish and believe it.

One of many such writings which plague us is the Balance of Powers Act  (“BOPA”). 1

The BOPA reflects a justified frustration with the innumerable usurpations by the federal government during the last 100 years.

But it also reflects such fundamental misunderstandings of our Founding Principles that it misstates or ignores them.  Accordingly, it undermines our Constitution.

There are 6 major problems with the BOPA:

1. It wrongly presents the federal government as a party to the U.S. Constitution.

Throughout the BOPA, the following refrain is recited:

 “The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]

That refrain elevates the federal government (“the United States”) 2 to the status of a “party” to the compact (Constitution)!

But the federal government is not a party to the Constitution! WE THE PEOPLE created the federal government when we ordained and established The Constitution. The federal government didn’t even exist until the Constitution was ratified.

Accordingly, our Framers understood that the federal government is merely our “creature”, and is not a “party” to anything. In Federalist No. 33 (5th para), Alexander Hamilton writes:

“… If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard [Constitution] they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” [boldface mine]

Thomas Jefferson writes in his Draft of the Kentucky Resolutions, 8th Resolution:

“… they [The States] alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, …” [emphasis mine]

James Madison writes in his Report on the Virginia Resolutions (1799-1800) under the 3rd resolution:

“It…[is]…a plain principle, founded in common sense…and essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. … The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; … ” [boldface mine]

Hamilton, Jefferson, and Madison are saying that because the States alone are “the parties” to the compact, they are the final authority to decide whether their “creature”, the  federal government, has violated the compact.   THIS is why States have the natural right of nullification!

But by asserting that States and the federal government are in a “compact” together, the BOPA elevates our “creature” to the status of a sovereign party right up there with The States!  Thus, it undermines the “plain principle” that the States alone, as the parties to the compact, have the right to decide, in the last resort, whether the federal government has violated the compact! 3

2. It wrongly suggests that each State (after the original 13) has a different Constitution

Here is another wrongheaded aspect of the same refrain in BOPA:

“The guarantee of those powers is a matter of compact between the state and people of _[state]__ and the United States as of the time that _[state]____ was admitted to statehood in _[year of admission]_.” [boldface mine]

The BOPA makes the absurd suggestion (which is piled on top of the untrue assertion that the federal government is a party to the compact) that every State admitted after the original 13, has a different “compact” with the federal government, depending on the year of admission.

So instead of one Constitution applicable to all States, we have (according to the BOPA) some 37 “compacts” (Constitutions) [50-13= 37].   Not only is this absurd, it perpetuates the lie spewed by progressives that the meaning of the Constitution evolves.

When Tennessee was admitted to statehood on June 1, 1796, she was admitted “on an equal footing with the original states, in all respects whatsoever”.  The U.S. Constitution has the same force in Tennessee and in the same manner as if Tennessee had been one of the original 13 States.  See, “An Act for the admission of the State of Tennessee into the Union”.

3. It misstates the original intent of the “interstate commerce” clause.

 Section 2 (3) of the BOPA asserts that the interstate commerce clause (Art. I, Sec. 8, cl. 3):

“…was meant to empower Congress to regulate the buying and selling of products made by others (and sometimes land), associated finance and financial instruments, and navigation and other carriage, across state jurisdictional lines…”

That is demonstrably false, and no authorities are cited.

We look to The Federalist Papers to learn the original intent of the clause. Federalist No. 22 (4th para), Federalist No. 42 (9th &10th paras), Federalist No. 44 (at 2.), and Federalist No. 56  (4th & 5th paras), explain the two purposes of the “interstate commerce” clause:

♣To prohibit the States from imposing tolls and tariffs on articles of import and export – goods & commodities – merchandize – as they are transported through the States for purposes of buying and selling; and

To permit the federal government to impose duties on articles of commerce and imports.4

 

4. It doesn’t properly set forth the original intent of the “necessary and proper” clause.

Section 2 (4) of the BOPA asserts that the necessary and proper clause (Art. I, Sec. 8, last cl.), was:

“… a limitation of power under the common-law doctrine of “principals and incidents,” which restricts the power of Congress to exercise incidental powers. There are two (2) main conditions required for something to be incidental, and therefore, “necessary and proper.” The law or power exercised must be 1) directly applicable to the main, enumerated power, and 2) it must be “lesser” than the main power.”

That is neither helpful nor authoritative.

The Federalist Papers explain the original intent of this clause. It merely delegates to Congress the power to pass laws necessary and proper to execute its declared powers (Federalist No. 29, 4th para); a power to do something must be a power to pass all laws necessary and proper for the execution of that power (Federalist No. 33, 3rd para); “the constitutional operation of the intended government would be precisely the same if [this clause] were entirely obliterated as if [it] were repeated in every article” (No. 33, 2nd para); and thus the clause is “perfectly harmless”, a  “tautology or redundancy” (No. 33, 3rd para).  Madison says the same in Federalist No. 44, at 1 (under his discussion of the SIXTH class).

In plain English, the clause merely permits Congress to make laws to carry out the enumerated powers of the three branches of the federal government.

For example: The duty of some of the federal courts created by Art. I, Sec. 8, cl. 9 is to conduct trials (in the types of cases Art. III, Sec. 2, cl. 1 permits them to hear).  Trials involve parties and witnesses. They must be required to tell the Truth! So, it would be necessary and proper for Congress to make laws against perjury in federal court.

 

5. It misstates the original intent of the “general welfare” clause.

Section 2 (5) of the BOPA asserts that the general welfare clause (Art. I, Sec. 8, cl. 1) requires:

“… that congress only enact laws which serve all citizens well and equally. When James Madison was asked if this clause were a grant of power, he replied “If not only the means but the objects are unlimited, the parchment [the Constitution] should be thrown into the fire at once.” Thus, we re-establish that this clause is a limitation on the power of the federal government to act in the welfare of all when passing laws in pursuance of the powers delegated to the United States, showing no favor to any race, creed, color or socio-economic class.”

That is not true, and no authorities are cited in support of the assertion that the general welfare clause means that Congress must treat all social classes the same.

The limitation imposed by the Constitution on Congress’ powers is that laws made by Congress must fall within the scope of the enumerated powers delegated to Congress. 

The term, “general welfare”, as used in our Constitution, has nothing to do with treating people of all races, creeds, and social classes the same.

Our Framers understood the “general welfare” (as applied to States) to refer to:

“Exemption from any unusual evil or calamity; the enjoyment of peace and prosperity, or the ordinary blessings of society and civil government.” (Webster’s 1828 Dictionary)

They saw that this condition could be brought about by the federal government we created in our Constitution:  A federal government divided into three parts, with each part having checks on the other parts; and with only enumerated powers delegated to each of the three parts.

Accordingly, the Preamble to our Constitution says:

“WE THE PEOPLE of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.” [boldface mine]

And that portion of our Constitution which introduces the list of most of the enumerated powers delegated to Congress over the Country at Large (Art. I, Sec. 8, cl 1) says:

“The Congress shall have Power … to … provide for the common defense and general Welfare of the United States…” [boldface mine]

Immediately thereafter follows the enumeration of 15 specific powers delegated to Congress over the Country at Large. In essence, these 15 powers authorize Congress to:

♣Provide for military defense and international relations and commerce;

♣Establish a uniform commercial system (bankruptcy laws, a money system based on gold & silver, weights & measures,  mail delivery & some road building, patents & copyrights); and

♣Make laws for naturalization of new citizens.

Our Framers understood that the “general Welfare” – the enjoyment of peace and prosperity, and the enjoyment of the ordinary blessings of society and civil government – would prevail with the federal government of narrowly defined and enumerated powers created by our Constitution! 5

Section (6) (A) of the BOPA then goes on to assert that the commerce clause, general welfare clause, and necessary & proper clause were amended and limited by the 2nd, 9th, and 10th Amendments!

Rubbish! Not only is no authority cited for this bizarre assertion, it is because the author lacks understanding of the original intents of the three clauses that he believes they needed to be “fixed” by amendments!

6. It ignores the Essential Characteristic of our Federal Constitution.

The essence of our federal Constitution is that it created a federal government of three branches, with each branch having checks on the other two branches. Furthermore, it delegated only specific, narrowly defined powers to each branch.

James Madison writes in Federalist No. 45 (3rd para from end) of the “few and defined” powers delegated to the federal government:

“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” [boldface mine]

What We have lost is the knowledge that Our Constitution delegated only “few and defined” – enumerated – powers to each branch of the federal government. For complete lists and explanations of the powers our Constitution delegated to each branch, see:

♣Congress’ enumerated powers [Art. I, Sec. 8, cl. 1-16 is not the complete list]

♣The president’s enumerated powers

♣The federal court’s enumerated powers

Any American of common sense and ordinary understanding is capable of fully understanding the scope of the powers delegated by our Constitution to Congress and to the President. 6

This is one of the keys to Restoration of our Constitutional Republic.

The BOPA contains a number of other statements which are confused and erroneous.

Conclusion

Our Framers were exquisitely educated in Logic, Judeo-Christian values, political philosophy, and statecraft. The American People of our Founding Era had the Wisdom and Humility to listen to our Framers.

Let us once again show that same Wisdom and Humility.  Listen to Our Framers.

Endnotes:

1 The BOPA is the product of The Constitutional Justice Division of the North American law Center.  As grand as those titles do sound, the BOPA does not reflect the light cast by minds schooled in law or statecraft. Furthermore, the writing is confused and some of the sentences undiagrammable.

2 Throughout our Constitution, the “federal government” is referred to as “the United States”.

3 Parties to compacts have mutual rights and obligations. The federal government has no “rights” – it has only those few delegated powers WE enumerated in the Constitution. The People pre-existed the Constitution. The States pre-existed the Constitution. Since the federal government didn’t exist until the Constitution was ratified, it can’t be a “party” to it! It is impossible to understand our Constitution unless one understands that the federal government is merely a “creature” of the Constitution – and as such, is completely subject to its terms.

4 For additional proof of the original intent of the “interstate commerce” clause see: Does the Interstate Commerce Clause Authorize Congress to Force us to buy Health Insurance?

5 The progressives say the general welfare clause gives Congress power to pass any law they say promotes the “general welfare”.

James Madison refutes that misconstruction in Federalist No. 41 (last 4 paras).  See also: Does the general welfare clause of the U.S. Constitution authorize Congress to force us to buy health insurance?

The BOPA’s erroneous assertion that the clause means that laws passed by Congress must “serve all citizens well and equally”, could easily morph into the perversion that Congress may do whatever it likes as long as its laws are fair to all races, creeds, and classes.

But the constitutional standard is that acts of Congress must fall within the scope of the enumerated powers delegated to Congress. We must not blur that clear line with our own fabricated feel-good theories.  READ the last 4 paras of Federalist No. 41!

6 Some knowledge of law and litigation is necessary to fully understand the enumerated powers of the federal courts. But if our People would make the modest effort necessary to learn the enumerated powers of Congress and the President, they would become

a people enlightened enough to distinguish between a legal exercise and an illegal usurpation of authority.” (Federalist No. 16   [Hamilton] next to last para)

Then they would be able to distinguish between constitutional and unconstitutional acts of Congress and the Executive Branch. PH

March 25, 2013

Gun Control, the Dick Act of 1902, Bills of Attainder & Ex Post Facto Laws

publius-HuldahBy Publius Huldah

The latest round of rubbish flooding our in boxes is an ignorant rant claiming that the Dick Act of 1902 (which respects our Right to be armed) can’t be repealed because to do so would “violate bills of attainder and ex post facto laws”.

Who dreams up this stuff? Does anyone check it out before they spread it around?

Of course we have the God-given right to keep and bear arms, to self-defense, etc., etc.  Our Declaration of Independence (2nd para) recognizes that our Rights come from God and are unalienable.

The 2nd Amendment to our federal Constitution recognizes that this God-given right to keep and bear arms is to be free from any interference WHATSOEVER from the federal government.

Our Framers were all for an armed American People – they understood that arms are our ultimate defense in the event the federal government oversteps its bounds.  See, e.g., what James Madison, Father of Our Constitution, writes in the second half of Federalist Paper No. 46!  The reason the Citizens – the Militia – are armed is to defend ourselves, our families, our neighborhoods, communities, and States from an overreaching, tyrannical federal government.

Accordingly, the federal government is nowhere in the Constitution granted authority to restrict, in any fashion whatsoever, guns, ammunition, etc. Thus, ALL laws made by Congress, and ALL regulations made by the Bureau of Alcohol, Firearms, and Tobacco (ATF), are unconstitutional as outside the scope of the powers granted to Congress and to the Executive Branch by our Constitution. Regulation of arms and ammunition is NOT one of the “enumerated powers” delegated to Congress or the Executive Branch.

Furthermore, all pretended regulations made by the ATF are also unconstitutional as in violation of Art. I, Sec. 1, U.S. Constitution, which vests ALL legislative powers granted by the Constitution in CONGRESS.   Executive agencies have no lawful authority whatsoever to make rules or regulations of general application to The People!

In addition, the President and the Senate may not lawfully by treaty do anything the Constitution does not authorize them to do directly.   Since the Constitution does not authorize the federal government to disarm us, the federal government may not lawfully do it by Treaty.   See, http://publiushuldah.wordpress.com/2009/09/19/the-treaty-making-power-of-the-united-states/

But the assertion that one Congress may not repeal acts of a previous Congress is idiotic.

And the assertion that Congress can’t repeal the Dick Act because a repeal would “violate bills of attainder and ex post facto laws” shows that whoever wrote that doesn’t know what he is talking about. He obviously has no idea what a “bill of attainder” is, and no idea what an “ex post facto law” is.

This accurately explains what a “bill of attainder” is: http://www.historylearningsite.co.uk/Bill-of-Attainder.htm

An “ex post facto” law RETROACTIVELY criminalizes conduct which was not criminal when it was done.

Say you barbequed outside last Sunday. That was lawful when you did it. Next month, Congress makes a pretended law which purports to retroactively criminalize barbequing outdoors. So, now, what you did is a crime (for which you are subject to criminal prosecution); even thou when you did it, it wasn’t a crime. That is an ex post facto law.

Now, say Congress passes a pretended law making possession of firearms a crime and ordering everyone to turn in their guns. Only if you do not turn in your guns will you have committed a “crime”.  That is not an ex post facto law because if you turn in your guns, you won’t be criminally prosecuted. The “crime” is the failure to turn in your guns – not the prior possession of guns.

Such a law would be totally UNCONSTITUTIONAL, because gun control is not one of the enumerated powers of Congress. Thus, the law would be outside the scope of the powers delegated to Congress.

It would also be unconstitutional as in violation of the 2nd Amendment.

But it would not be an ex post facto law.

People shouldn’t sling around terms, the meanings of which, they do not understand. It is immoral.

If TRUTH spread as rapidly as lies, our problems would have been resolved long ago.  But if People can come to love TRUTH more than they love the ignorant rubbish they circulate, perhaps it is not too late to restore our Constitutional Republic. PH

Endnote:

In Federalist Paper No. 84 (4th para), Alexander Hamilton says re ex post facto laws (and of the importance of the writ of habeas corpus):

“…The creation of crimes after the commission of the fact, or, in other words, the subjecting of men to punishment for things which, when they were done, were breaches of no law, and the practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny…” PH

How the Left uses the First Amendment to destroy our liberty and our culture

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” U.S. Constitution, Amendment I

When the Constitution was presented to the states in 1787 for ratification, it was quickly noted that while it only delegated certain limited powers to the Federal Government, there was no clear language preventing it from exercising powers beyond those delegated. Some states demanded the addition of a Bill of Rights as a condition of ratification. After a long public debate carried out in the newspapers of the day —the eighteenth century equivalent of the Blogosphere— it was agreed that a Bill of Rights would be presented to the states for ratification by the first Congress. The result was the first ten amendments to the Constitution.

In the post-constitution America we live in today, both the Constitution and the Bill of Rights are routinely ignored by the Federal government. To add insult to injury, it is not enough that they are ignored by the progressive politicians populating Washington today, over the past century, activists have increasingly learned how to use the Amendments to the Constitution to undermine the historical American Culture and silence opposition. The most egregious distortion of the Constitution is the progressive’s use of the First Amendment to stifle religious liberty and promote its own religious doctrines through legislation, coercion and psychological manipulation. The ultimate purpose is to destroy the Biblical values that are the foundation of the American culture and replace them with the humanistic values that are the foundation of progressivism (American socialism) and other left-wing “-isms”.

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The Governor of Tennessee Must Obey Tennessee Law: No State Insurance Exchange!

publius-HuldahBy Publius Huldah

According to an article posted by Lesley Swann of the Tennessee Tenth Amendment Center, the federal obamacare Act doesn’t actually require The People to submit to obamacare.1

Accordingly, HHS Secretary Kathleen Sibelius is demanding that The States set up State Insurance Exchanges, by means of which The States will force The People into obamacare.

While 20 States have already given notice that they will not implement obamacare by setting up the State Exchanges; Tennessee’s RINO Governor, Bill Haslam, is “undecided” as to whether he will force Tennesseans to submit to obamacare.

But Haslam has no lawful authority to force The People of Tennessee into State Exchanges. If he does it anyway, he will commit the following five (5) violations of Tennessee Law:

1. The Tennessee Health Freedom Act

The Tennessee Legislature enacted in 2011 the Tennessee Health Freedom Act, codified at Tenn. Code Ann. Sec. 56-7-1016. 2

Under this Act, no public official, employee, or agent of Tennessee may force The People of Tennessee to purchase health insurance or impose any penalty for not purchasing such insurance.

So if Haslam attempts to force The People of Tennessee to participate in a State Insurance Exchange, he will violate the Tennessee Health Freedom Act.

2. The State Legislature makes the Laws – not the Governor

The Constitution of the State of Tennessee says at Article II:

“Section 1: The powers of the government shall be divided into three distinct departments: legislative, executive, and judicial.

Section 2: No person or persons belonging to one of these departments shall exercise any of the powers properly belonging to either of the others, except in the cases herein directed or permitted. [boldface mine]

Section 3: The legislative authority of this state shall be vested in a General Assembly, which shall consist of a Senate and House of Representatives….”

If Haslam attempts to force Tennesseans into a State Insurance Exchange, he will violate the Separation of Powers Principle enshrined at Art. II, Sections 1 – 3.

3. The Governor’s Powers are Enumerated, Defined, and Strictly Limited.

Here is a complete list of the enumerated powers and duties of the Governor of Tennessee. Article III provides that:

Section 1: The executive power of the state is vested in a governor [See Sec. 10 below].

Section 5: The governor is commander-in-chief of the State Militia

Section 6: The governor may grant reprieves and pardons.

Section 8: The governor may require written information from officers in the executive department, about their duties.

Section 9: The governor may, on extraordinary occasions, convene the General Assembly.

Section 10: The governor shall take care that the laws be faithfully executed.

Section 11: The governor is to give the Legislature information on the state of the government, and recommend matters for their consideration.

Section 14: The governor may temporarily fill vacancies in office.

Section 15: The governor is to be keeper of the Seal of the State of Tennessee.

Section 16: The governor is to sign and seal all grants and commissions of the State.

Section 18: The governor is to sign, or veto, or allow to become law without his signature, every Bill, Joint Resolution or Order passed by the Legislature. He may reduce or disapprove sums of money appropriated for specific items.

Article VI, Section 11: When any judge of the State Supreme Court is disqualified from presiding over a case, the governor is to specially commission another person to serve as judge on that case.

Article VIII, Section 2: The governor is to appoint certain officers of the State Militia.

That’s it! That’s all the governor of the State of Tennessee has lawful authority to do. He has no lawful authority to make laws. He has no lawful authority to force Tennesseans into a Health Insurance Exchange. If Haslam attempts to do this anyway, he will usurp powers not delegated to him by the Tennessee Constitution.

4. The Governor’s Duty is to Enforce the Laws the Legislature Makes!

Note that Art. III, Sec. 10 requires the governor to “take care that the laws be faithfully executed”. As long as the laws made by the Legislature are constitutional, the governor is obligated to enforce them! This means that Haslam must refuse to implement the State Exchange. If he doesn’t refuse to implement the State Exchange, he will be guilty of dereliction of his Constitutional Duty.

5. The Governor is Required by his Oath to Obey the Tennessee Constitution

Article X, Section 1, of the Tennessee Constitution requires the governor to take an Oath to support the Tennessee Constitution.

If he takes his orders from Kathleen Sibelius instead of from the Tennessee Constitution and the Tennessee Legislature, he will violate his Oath to support the State Constitution.

Article X, Sec. 1 of the Tennessee Constitution, and Art. VI, clause 3 of the federal Constitution, also require Haslam to support the federal Constitution. Obamacare is altogether unconstitutional as outside the scope of the legislative powers delegated to Congress. This is plain and clearly proven. 3 Thus, Haslam is required by Oath to refuse to enforce obamacare because obamacare is unconstitutional.

If Haslam Violates the State Constitution and State Law, he must be Impeached and Removed.

Article V, Sec. 4 of the Tennessee Constitution provides that the governor shall be liable to impeachment whenever, in the opinion of the Tennessee House of Representatives, he commits any crime in his official capacity which requires disqualification.

Webster’s 1828 Dictionary (1828 definition) defines “Crime” as

“1. An act which violates a law, divine or human; an act which violates a rule of moral duty; an offense against the laws of right, prescribed by God or man, or against any rule of duty plainly implied in those laws. A crime may consist in omission or neglect, as well as in commission, or positive transgression…”

Any governor who ignores the State Constitution, ignores State law, violates his Oath of Office, and usurps power must be removed from office. 4

End Notes:

1I haven’t read the obamacare Act. It is over 2000 pages long, and is being implemented right now by thousands of more pages of HHS & IRS Rules. Our Framers warned us of laws which were

“… so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is to-day, can guess what it will be to-morrow…”(Federalist Paper No. 62, 4th para from end)

2 The hyperlinks at lexus nexus don’t work. To find the text of the Tennessee Health Freedom Act, click on http://www.lexisnexis.com/hottopics/tncode/ then type in the search term, “Tennessee Health Freedom Act”, jump thru the hoops, and you will find the Act. It is short and worth reading.

3 See, e.g. these model Nullification Resolutions for obamacare

4 Impeachment and removal from office for usurpations of power is expressly authorized by our federal Constitution: See, as to removing a President who usurps power: Federalist Paper No. 66, 2nd para, and No. 77, last para. As to removing federal judges who usurp power, see Federalist Paper No. 81, 8th    

December 12, 2012

 

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Why Congress May Lawfully Require Citizens to Buy Guns & Ammunition, But Not To Submit To Obamacare.

By Publius Huldah.

Harvard Law School was embarrassed recently when one of its graduates, the putative President of the United States, demonstrated that he was unaware that the supreme Court has constitutional authority to declare an act of Congress unconstitutional.1

And after reading a recent paper by Harvard law professor Einer Elhauge, one wonders whether the academic standards (or is it the moral standards?) of that once great school have collapsed.

Professor Elhauge says in “If Health Insurance Mandates Are Unconstitutional, Why Did the Founding Fathers Back Them?” (The New Republic, April 13, 2012), that Congress may force us to buy health insurance   because in 1792, our Framers required all male citizens to buy guns; and in 1798 required ship owners using U.S. ports (dock-Yards) to pay a fee to the federal government in order to fund hospitals for sick or disabled seamen at the U.S. ports.

Oh! What tangled webs are woven when law professors write about Our Constitution!

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Publius-Huldah's Blog

By Publius Huldah.

A little knowledge is a dangerous thing; and no one illustrates this Principle better than Forbes’ writer Rick Unger in his article, “Congress Passes Socialized Medicine and Mandates Health Insurance – In 1798”,  Washington Post writer Greg Sargent and Georgetown University history professor Adam Rothman.

In 1798, Congress passed An Act for the relief of sick and disabled Seamen which required the master of every American ship arriving from foreign ports to any port of the United States, and American ships engaged in the coastal trade using those ports, to pay a small fee to the federal government for every seaman employed on his ship. The funds so raised were used to care for sick and disabled seamen in the marine hospitals established in the ports of the United States.

So!  Unger cited this 1798 Act and chortled with glee that our Framers supported “socialized…

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Romney’s Repeal and Replace Plan Will Not Solve our Problems

They say “a picture is worth a thousand words”. That being the case, this picture is worth volumes in explaining what is wrong with America’s political system and why we find ourselves on the very brink of economic collapse and facing the prospect of losing the individual liberty we have enjoyed since the founding of our Republic.

America did not become the most successful and  prosperous nation in the history of the world because of the wisdom and skills of our political leaders. Instead, it was because our Founders, knowledgeable in both political philosophy and history, understood that democracies always lead inevitably to some form of socialism and ultimately to despotic tyranny. To guard against this political probability and still allow the people to remain sovereign over their government, the Founders established a Constitutional Republic consisting of four co-equal parts designed to protect our liberty and our God-given inalienable rights. The four parts are the national Legislature, the national Executive branch, the national Judiciary, and the state governments, all operating within their sphere of authority with carefully limited powers under the watchful eye of the citizenry.

The bedrock on which this system was based is the Constitution. It worked well until the beginning of the Progressive era at the end of the nineteenth century. The progressive movement used deception, misdirection, and man’s weaknesses to appeal to the basest of human passions, greed, envy and jealousy to gain a prominent foothold in American politics. Progressives in both the Democrat and Republican Parties set the political agenda for the twentieth century. Although most republicans were opposed to the ideas of progressives (American socialists) as a basic principle, in the spirit of political expediency, they accepted many of the progressive’s policies, appealing to their constituencies with the implied motto, “we can do it better”.

On virtually every important issue during the twentieth century, the Republican Party accepted the premises put forth by progressive democrats, even though they may not agree with the policy based on the premise. It became a habitual strategy for the Republican Party to propose policies in opposition to the democrats that accepted the progressive premise but altered the pursuant policy just enough to make it palatable to their constituents. This practice gave rise to the “moderate” republicans so valued by both parties and the national progressive media of today.

The core principles on which the progressive movement is based are the polar opposites of the core principles on which the Declaration of Independence, Constitution and Bill of Rights are based. A hundred years of compromise and accommodation of these principles by the Republican party and its elected officials has led to a steady erosion of the Constitution, leading to the lawless state of our national government, as well as a growing part of American society that we have today. (The Constitution is the Supreme Law of government.)

On Monday, the Supreme Court began hearing arguments on whether or not parts of the Obamacare law is unconstitutional. Already the trial is being played in the press as a sporting event between the four progressives on the court and the four constitutional conservatives, with Justice Stevens, the “moderate”, being the unknown factor. The outcome is far from certain and the results will probably not be known until June, more than likely after the Republican candidate for President has already been decided on.

There is a slim chance that the Court will put aside its law books, consideration of prior Court decisions, and International law and focus their deliberations on the Constitution itself using the debates in the 1787 Philadelphia Convention and the Federalist Papers, to determine the intent of the Framers. In which case, they will rule the Affordable Health Care Act as unconstitutional in its entirety. A more likely scenario, however, is that they will strike down parts of the law, leaving the basic premise intact; that the “commerce clause” gives the Congress, and through it, the bureaucracies in the Legislative Branch, authority to legislate in this, and other matters that are not among the enumerated powers of Congress. If that happens we will have made very little progress in returning America to its Constitutional foundation.

Romney’s “Repeal and Replace” plan simply carries on the Republican tradition of compromise and accommodation, accepting the premise that Congress has the power under the commerce clause to regulate health care in America. Regardless of how many remnants of Obamacare the Supreme Court leaves in place, the entire law must be repealed and eradicated from any possibility of being revived, if we are to salvage what is left of our Republic and the liberties it provides. A concise outline of Romney’s Repeal and Replace plan is found on Romney’s website. Following are the highlights and why they should be unacceptable to the American People.

“On his first day in office, Mitt Romney will issue an executive order that paves the way for the federal government to issue Obamacare waivers to all fifty states. He will then work with Congress to repeal the full legislation as quickly as possible.”  ~mittromney.com

Article I, Section 1, “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” The President does not have the Constitutional power to, in effect, make law or alter laws passed by Congress. Neither does he have the power to waive by Executive Order, laws passed and signed into law under prior Presidents. One of the few direct responsibilities given to the President by the Constitution is the enforcement of laws passed by Congress.

Article II, Section 3, at the end of the last paragraph we read: “he [the President] shall take Care that the Laws be faithfully executed”. The President does not have the prerogative of deciding which laws his Justice Department will or will not enforce. Once a law has passed Congress and been signed into law it becomes a part of the Constitution until it is determined to be unconstitutional by the appropriate courts; (Article VI, paragraph two.) If a new law is passed by Congress that the President considers unconstitutional, it is his duty to veto it and return it to Congress along with an explanation for his veto. (Article I, Section 7)

Romney also promises to:

  • Block grant Medicaid and other payments to states
  • Limit federal standards and requirements on both private insurance and Medicaid coverage
  • Ensure flexibility to help the uninsured, including public-private partnerships, exchanges, and subsidies
  • Ensure flexibility to help the chronically ill, including high-risk pools, reinsurance, and risk adjustment
  • Offer innovation grants to explore non-litigation alternatives to dispute resolution ~mittromney.com

Here again, Romney is playing fast and loose with the Constitution. Block grants should be considered as what they are; bribes to the states in an effort to bend them to the will of the federal government. Withholding them from states that refuse or neglect to comply with federal requirements is primarily a pecuniary method for enforcing compliance with the bureaucratic rules of the Executive branch. At best, they represent an application of the socialist principle of redistribution of wealth, as tax money is taken from wealthier states and redistributed to those less wealthy.

His promise to “limit federal standards and requirements on …private insurance” is clearly a violation of Article I, Section 10: “No State shall … pass any … Law impairing the Obligation of Contracts…”. Contract law provides the underpinning of market capitalism. The founders assumed the federal government would not have the power to impair contract law because it was not given as one of the enumerated powers. At the same time, they considered the matter of protecting the integrity of private contracts so important that they also prohibited the states from passing laws that would impair them. Insurance policies are private contracts between the insurer and the policy holder. Neither the President, Congress or the state legislatures have the power to interfere with that relationship. These same arguments apply to the last three promises in Romney’s list as well.

In fact, the same argument is valid against all fifteen points of Romney’s plan listed on his website. They all impair, to a greater or lesser degree, private contracts between private insurance companies and policyholders or between health care providers and their patients. However there is one ironic exception: “Allow consumers to purchase insurance across state lines”. Here, Romney inadvertently discloses the original purpose of the interstate commerce clause, which he evidently does not adequately understand himself. Its original purpose was to insure free and fair trade between the states, breaking down the protective barriers put in place by various states during the former government’s existence under the  Articles of Confederation.

It is important for voters in states that have not yet held their primaries to keep this in mind when they vote. Substituting a revised version of Romneycare for Obamacare does not solve the problem of Washington’s failure to follow the dictates of the Constitution every member of government is sworn to uphold and defend.