EDITOR’S NOTE: Tennessee SB0250 is a bill that would declare federal violations of the 2nd Amendment to be illegal within the state. The bill also provides for criminal penalties for federal agents who attempt to carry out such violations. Earlier this week, the bill was up for a hearing in the Tennessee State Senate, where Brian Kelsey sits as chair. (you can view the entire hearing at this link)
The bill will be heard again on Wednesday, 02-27. Tennessee residents are urged to support the bill.
(urgent action items at this link)
The following is a detailed response to Kelsey’s many distortions, misstatements, and historical inaccuracies. Whether you live in Tennessee or not, this article will be extremely valuable to you. Virtually every state has a “Brian Kelsey” of their own – someone who holds a position of power, who speaks and acts authoritatively about a subject they know very little about.
During a Senate Judiciary Committee hearing on SB0250 earlier this week, Tennessee state Senator Brian Kelsey played the role of historian and constitutional expert. He lectured bill sponsor Sen. Mae Beavers, fellow committee members and the large crowd gathered in the chamber on the history of nullification and the structure of the Constitution itself.
Judging by his delivery, with his occasional condescending chuckles while “educating” people during the hearing, you’d think that Kelsey had spent years studying these important subjects and was some kind of expert. But based on the substance of his arguments and the endless litany of historical errors in his statements, it’s seems he might as well have learned about the Constitution in Chicago…from a certain lecturer named Obama.
I actually have to give the guy some credit for his ability to stuff so many misstatements and historical untruths into such a short amount of time.
JACKSON WASN’T A FOUNDING FATHER
To start, our expert chose President Andrew Jackson as his historical mouthpiece to imply that states cannot make determinations about the constitutionality of a federal act. Why he would choose Jackson over James Madison, the man considered “the father of the Constitution,” or Thomas Jefferson, the author of the Declaration of Independence, remains a mystery. Probably because both Jefferson and Madison insisted state legislatures DO have the authority to determine the constitutionality of a federal act, and that inconveniently undermines his position.
Or perhaps Kelsey simply doesn’t know what he’s talking about.
TRUTH 1. Brian Kelsey 0.
NULLIFICATION HAD A LONG HISTORY BEFORE 1832
Things start to clear up a bit the moment he opens his mouth and claims, “When this issue first came to a head in the United States…..in 1832 it was over the tariff.”
This represents a common viewpoint held by lawyers who simply never learned the history.
And it’s dead wrong.
The issue first came to head in 1798 when John Adams signed the Alien and Sedition Acts. Thomas Jefferson and James Madison responded by drafting resolutions that were passed by the Kentucky and Virginia legislatures respectively. Jefferson’s draft asserted that when the federal government exercises undelegated powers, a state has the right to “nullify of their own authority all assumptions of power.” Madison asserted that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the Constitution, states “have the right, and are in duty bound, to interpose for arresting the progress of the evil.”
Time limitations prevent me from covering in any detail the nullification efforts that resisted military conscription in the early 19th century, or the Ohio effort to use nullification against the Central Bank.
TRUTH 2. Brian Kelsey 0.
SOUTH CAROLINA NULLIFIED VIA A POPULAR CONVENTION
Kelsey pressed on and further demonstrated his loose grip on historical facts.
He claimed the South Carolina legislature passed a resolution nullifying the “tariff of abominations.” It did no such thing. A convention of special delegates of the people passed the Ordinance of Nullification. Sure, this is nitpicking a bit, but when you’re dealing with a guy who acts like an expert, he better expect to be hammered on every little error he makes.
TRUTH 3. Brian Kelsey 0.
THE SUPREME COURT NEVER RULED ON THE “TARIFF OF ABOMINATIONS”
Kelsey then asserted that the Supreme Court ruled the tariff constitutional. It did no such thing. There’s no such case. It never happened. Generally, lawyers are pretty good at citing cases. In fact, that’s all they do. Most lawyers never even study anything before 1803. They don’t know a thing about the framing of the Constitution or the state ratifying conventions which gave it legal force. They only know case law. So for Kelsey, a lawyer, to just make up a supreme court case like this is such a big error on his part that I’m going to dock him an extra point.
But if he’s got a case that I don’t know about, I’m happy to give him a point.
TRUTH 5. Brian Kelsey 0.
SOUTH CAROLINA DIDN’T SIMPLY BACK DOWN
Kelsey would have you believe that this is how the nullification crisis was resolved.
After South Carolina attempted to nullify, Andrew Jackson convinced congress to pass a force bill, threatening to attack South Carolina if they didn’t give in. Then, South Carolina caved.
This is so wrong that it’s hard to chalk it up as ignorance. It’s totally made up.
Here’s what really happened (the short version). After South Carolina passed the nullification ordinance, Jackson first responded by saying that existing laws would be enough to put down the nullification. But South Carolina did not relent. So then, Jackson wanted to turn it up a notch. Jackson did in fact work with congress to introduce a force bill regarding South Carolina. But that bill was stalling in DC, and South Carolina wasn’t backing down.
Influential people were helping create a negotiation between Jackson’s supporters and the Nullifiers. Congress finally passed the Force Bill, but a reduced tariff, the Compromise Tariff of 1833, which was acceptable to both South Carolina and the Federal Government, was also passed.
It was only after a reduced tariff was passed by congress, that South Carolina finally reconvened their convention and repealed the Nullification Ordinance. At the same time, though, the convention also nullified Jackson’s force bill – to make clear that they felt that the reduced tariff was caused by the resistance of a single state.
That sure doesn’t sound like Kelsey’s version – a scared people backing down under threat. Sounds to me like they were giving a little Molon Labe message of their own. That’s what most people would call victory for nullification.
Instead, Kelsey wants you to believe something completely different.
TRUTH 6. Brian Kelsey 0.
NULLIFICATION WAS USED PROMINENTLY TO RESIST FEDERAL SLAVE-CATCHING LAWS
Then Kelsey claimed, “The issue has not really been raised again since then, to my knowledge, to the extent of actually arresting federal officers and/or having confrontation between the federal and state officers…obviously other than the United States Civil War.”
Apparently our armchair historian has no knowledge of northern states passing Personal Liberty Laws to resist federal agents intent on capturing black people and shipping them back south into slavery during the 1840s and 1850s. In fact, many of these laws were passed in direct defiance of an actual Supreme Court ruling. He never learned that abolitionists used the arguments of South Carolina nullification architect John C. Calhoun to support their actions. And he has no clue that the Massachusetts Personal Liberty Act of 1855 did indeed include provisions for arresting federal officers.
Or, maybe he just doesn’t want you to know about it. Because if you did, he’d have a hard time arguing on the same side as the slave owners.
TRUTH 7. Brian Kelsey 0.
DANIEL WEBSTER SUPPORTED, THEN OPPOSED, THESE PRINCIPLES
The litany of errors continues. Kelsey said: “It was Daniel Webster who was leading the effort to nullify the tariff…you know one of the leading orators and members in United States Senate history who was pushing the issue at the time.”
Actually, Webster was a leading opponent of nullification. So, did Kelsey make an honest mistake and just get one word wrong? Who knows, but at this point he’s made so many errors; he doesn’t get any more gimmes.
TRUTH 8. Brian Kelsey 0.
While we’re on the subject of Webster, here’s another historical tidbit that Kelsey probably doesn’t know – or doesn’t want you to know. The revered Massachusetts senator supported states using interposition to resist unconstitutional acts when the feds tried to conscript soldiers during the War of 1812. (this is one of those times where nullification came up prominently prior to 1832)
“The operation of measures thus unconstitutional and illegal ought to be prevented by a resort to other measures which are both constitutional and legal. It will be the solemn duty of the State governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power. These are among the objects for which the State governments exist.” [emphasis added]
TRUTH 9. Brian Kelsey 0.
Having demonstrated Kelsey’s utter ineptitude as a historian, how can we depend on him to tell us whether Tennessee has the authority to nullify an unconstitutional federal act today? Well, you might argue, perhaps he has a tighter grasp on constitutional issues than he does history.
THE 10TH AMENDMENT IS A RULE OF CONSTRUCTION
Kelsey offered up one of the most bizarre and convoluted constitutional constructions ever. And I’ve heard some pretty weird ones.
“The Tenth Amendment does not apply to the supremacy clause. The supremacy clause overrides the Tenth Amendment.”
Clearly, Kelsey doesn’t have a clue. The Tenth Amendment doesn’t override any part of the Constitution, and no constitutional clause or provision overrides it either. The Tenth Amendment is actually a “rule of construction.” As a lawyer, you’d think that Kelsey would understand that. A legal rule of construction simply tells us how to view the document. The Tenth Amendment, along with the Ninth, defines the Constitution as in instrument delegating specific, enumerated powers to the federal government, leaving the bulk of authority to the people of the states, where it was already vested prior to ratification. It makes it clear that the federal government may not exercise powers it was not delegated.
On the other hand, the supremacy clause is a “conflict-of-laws rule,” specifying that a federal act in pursuance of the Constitution take priority over any state acts that conflict with it. Laws “in pursuance” of the Constitution constitute those enacted by the federal government within the scope of its enumerated powers. Acts claiming power outside of those delegated powers are not laws at all. They are usurpations of power, by definition unauthoritative and of no force. That would be the exact opposite of “supreme.”
During the hearing, Beavers pointed out that only those laws made in pursuance of the constitution stand supreme. It seemed to go right past Kelsey. Either he actually believes that the federal government can do whatever it wants, no matter what; no limitations, no questions asked, or he’s intentionally ignoring the truth.
TRUTH 10. Brian Kelsey 0.
SHALL NOT BE INFRINGED….UNLESS WE SAY SO?
Kelsey claims he supports the Second Amendment. But his comments in the hearing make it clear he does not. He said the supremacy clause “seems to override the particular issues that may or may not be brought up.”
Again our Obama-style expert doesn’t understand the most basic constitutional construction. The Bill of Rights was ratified to further limit the power of the federal government. The preamble to the Bill states clearly that it existed:
“in order to prevent misconstruction or abuse of [the federal government's] powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.”
The Bill of Rights further restricts federal powers. In essence, the Second Amendment says, “Hey federal government – even while exercising legitimate powers, such as regulating interstate commerce, you still may not infringe on the right to keep and bear arms.”
TRUTH 11. Brian Kelsey 0.
AN INTERESTING HISTORY AND CONCLUSION
Ironically, at one time Kelsey supported a bill defying federal power on firearms. In fact, he bragged about it during the hearing.
“I was a supporter of the bill, the original bill that you passed in here a couple of years ago that upheld the Second Amendment rights of Tennesseans for firearms and ammunition that were produced in the state of Tennessee and did not leave the borders of Tennessee. So I am on record as having supported that,” he said.
Yes indeed. And the 2009 Tennessee Firearms Freedom Act clearly defies the 2005 Gonzales v. Raich decision broadly defining federal power to “regulate commerce between the states,” certainly to the extent that it would allow for regulating firearms within the borders of Tennessee. So, doesn’t that mean Kelsey’s OK with the state conflicting with the feds? What’s his issue with SB0250?
When you boil it all down, it seems Kelsey simply wants an excuse to avoid moving forward with the bill. He said he wants to “receive an Attorney General opinion on that issue so we would have clarity, or perhaps not clarity, so that we could have a better idea as to what the law has been throughout the history of the United States regarding the interplay of the supremacy clause and any Second Amendment issues.”
Well, we already know that Attorney General Bob Cooper is the kind of guy that will omit three words from the Constitution when issuing a constitutional opinion, completely distorting the truth. He already did this in his opinion on the Tennessee Health Care Freedom Act. Which, by the way, the Tennessee legislature passed anyway.
Michael Maharrey, Lesley Swann and Kelli Sladick contributed research for this article.
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