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Before the Tennessee State Senate Judiciary Committee in support of SB0250 on February 27, 2013
Hello, my name is Michael Maharrey. I’m the national communications director for the Tenth Amendment Center. I’m honored to be here.
As you know, in the opinion of Attorney Gen. Robert Cooper, SB 250 violates the supremacy clause of the Constitution. I’ve read the opinion, and his basic reasoning is solid.
Never-the-less, he came up with the wrong answer.
I’m sure you all remember working long quadratic equations in your high school algebra class. You know that you can work each step in precisely the right sequence, but if you insert 2×2=6 in the first step, you will come up with the wrong answer at the end. Why? Because you worked the entire problem operating on a false premise.
Cooper spends the bulk of his opinion correctly arguing that constitutional federal law trumps state law where it conflicts. Quite frankly, that was a waste of time. Nobody disputes that. The problem is that he incorrectly assumes that every federal act is a constitutional law and he builds his opinion on that fallacious premise.
Fact: Only laws made in pursuance of the Constitution are truly supreme.
All the founding fathers agreed – and I mean ALL of them – any federal act that violates the Constitution is no law at all. Alexander Hamilton summed it up in Federalist 78
“Every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid.”
Cooper apparently wants the People of Tennessee to believe the following federal acts mentioned in Section 5b are constitutional, and supreme.
-a Ban on firearms.
-tracking of ammunition
-federal taxes on firearm accessories
Where exactly does the Constitution delegate the federal government the power to regulate firearms? It doesn’t. Some will argue that the federal government has some regulatory authority under the Commerce Clause. But, we have the Second Amendment, which puts further restrictions on the federal government. Note the most important phrase in the 2nd Amendment – “shall not be infringed.” Infringe means to interfere with. That doesn’t leave any wiggle room.
Cooper mentions the possible unconstitutionality of such acts almost as an afterthought. He writes near the end of his opinion, “While the bills themselves declare that certain federal firearms regulations are unconstitutional…the responsibility for that determination rests with the judiciary, not a state legislature.”
The attorney general rests his argument on Marbury v. Madison.
But Cooper is misconstruing Marshall’s ruling. The Chief Justice was merely asserting that the Court CAN in fact NULLIFY an act of Congress by ruling it unconstitutional. Nowhere does Marshall assert the Court has exclusive authority to rule on constitutionality. In fact, quite the opposite. Justice Marshall wrote:
The particular phraseology of the Constitution…confirms and strengthens the principle…that a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
The attorney general also cites Cooper v. Aaron to assert the supremacy of the federal judiciary and that its rulings cannot be challenged.That case rests on the same bastardized interpretation of Marbury.
Such a notion obliterates the constitutional system, making the Court the de facto sovereign. I shouldn’t even have to point out the absurdity of the Court making itself supreme. It’s like King Arthur claiming “supreme executive authority” because, in the words of Dennis in Monty Python and the Holy Grail, “some watery tart threw a sword at him.”
Ronald Reagan’s Attorney General Edwin Meese said this:
The “logic of Cooper v Aaron .. is at war with the Constitution… at war with the very meaning of the rule of law.”
We need look only to the Dred Scott case, which denied even free blacks citizenship and went on to proclaim black people inferior, to see the inherent flaw in this idea of judicial supremacy. Do you really accept that Dred Scott was legitimately the law of the land – even for one minute? Abraham Lincoln sure didn’t. In response to the ruling, he said:
“If the policy of government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having, to that extent, practically resigned their government into the hands of that eminent tribunal.”
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Fact: The Tennessee Attorney General tells us that only the federal court can determine constitutionality.
Fact: Ronald Reagan’s attorney general, plus Abraham Lincoln, James Madison and Thomas Jefferson all disagree.
Jefferson said the states “are not united on the principle of unlimited submission to their general government.” And that the “government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself.”
Simply put, the people of the states delegated the federal government its power in the first place. As James Madison said
“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; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
@RonPaul_2012 #CNN?
At the end of the day we both offer words, theirs are backed by the force of Washington, ours by the reasons of great political minds and the logic of self-government.
If the leglsator should decide that it is better that we turn our backs upon the concept of the Federal Constitutions being a limit upon the federal Government then they should embrace the Federal Government’s self-empowering definition of its own power.
If on the other-hand the they regard themselves as either party to a Constitutional compact or Constitutional officers bound to uphold that law then they must by necessity appose the notion of that power being held exclusively in the hands of the very party the document was designed to restrain.
I would on the matter of school books hold a serises of General votes of the leglsator to express the opinion of the State on such matters of grave importance, and that such opinion should be transmuted to our posterity in the State schools.
Such an act might not only help to clearly define the nature of American Government to our children(something that is obviously in great need). But might also help to clearly define the nature of the PUBLIC school system to our people(by method of the ensuring controversy).
ANY law enacted by a Government that clearly defies the supreme law of the land (The Constitution) is null and void to me, it doesn’t exist. I ONLY follow the Constitution and i will ONLY follow the Constitution until my last breath.
We need urgent action – Call your House Rep and urge them to vote NO on the S.47 Violence Against Womens Act – I haven’t read all 387 pages, they of course have written it in the same fashion as the Patriot Act. But Domestic Violence is not w/in the enumerated powers clause – they have no authority on this matter.
Ultimately it is the people who will decide constitutionality. I do not leave this in the hands of 9 unelected persons. Neither does our constitution.
1
: the act of subverting : the state of being subverted; especially: a systematic attempt to overthrow or undermine a government or political system by persons working secretly from within
2
obsolete: a cause of overthrow or destruction
Yes it is. Based on that alone we could shred 75% of the US Code
From the article:
Fact: The Tennessee Attorney General tells us that only the federal court can determine constitutionality.
Fact: Ronald Reagan’s attorney general, plus Abraham Lincoln, James Madison and Thomas Jefferson all disagree.
Jefferson said the states “are not united on the principle of unlimited submission to their general government.” And that the “government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself.”
Simply put, the people of the states delegated the federal government its power in the first place. As James Madison said
“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; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
@RonPaul_2012 @TwistedPolitics that would be the supreme court.
http://www.floridabankerswhorehousebill87.com
We all know john roberts wont stand up for us. He’s a complete bitch
which leaves the fight to stem off mob rule at the STATE level. The Federal which has over stepped it’s bounds to fund crony projects and create protectionist laws has a “compact” with the states… the states have a “compact” with the individual. Know your state constitution
Repeal the 17th Amendment. Give the Senate back to the states.
@RonPaul_2012 #WeThePeople do!
@maverick49er @ronpaul_2012 do the people know the definition of constitution?
So, when is the Tenth Amendment Center going to come out in opposition to a new Constitutional Convention? Since there has NEVER been a convention in recent history that did not bring a fundamental change in government don’t you think it might be wise to avoid this trap, especially in the current political climate?
Publius Huldah brought up the fact that the reason Madison opposed SC’s nullification in the Jackson years is because what SC was trying to do was nullify CONSTITUTIONAL laws. Chairman Kelsey jumped at that opportunity to say that state’s are therefore not good judges of what is and is not constitutional.In a federal system where states were freely permitted to nullify unconstitutional acts, what would be the just consequences for a state that nullified constitutional laws?
@CSA1861It’s legitimately debatable whether the tariff was constitutional. Madison definitely thought it was. But the argument against it was that it did not fit the definition of “general welfare” because the benefits accrued to northern manufacturing states and harmed the south. At any rate, I think you would see what happened to S.C. happen in any dubious attempt to nullify – there would be very little support for other states and it would likely fail. Organizations like ours would oppose it. It just wouldn’t fly. I don’t see anything in today’s nullification movements that are even close to the line. Federal power is SO out of control.
<p>But I grant, there is always the risk of unwarranted nullification. But I’ll take that risk to the risk of an unchecked, all-powerful federal government.
IMPEACHMENT
It’s ironic that the author quoted Federalist 78, which unequivocally states that it’s the judiciary that is to determine the constitutionality of laws:
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.”
The author also cites the Dred Scott case to bolster his argument against the idea that the judiciary is to be the exclusive judge of constitutionality:
“We need look only to the Dred Scott case, which denied even free blacks citizenship and went on to proclaim black people inferior, to see the inherent flaw in this idea of judicial supremacy. Do you really accept that Dred Scott was legitimately the law of the land – even for one minute?”
Unfortunately, the decision was the law of the land, but thankfully only for a short time. It was overturned by the people by way of a constitutional amendment. The fact that the Court’s decisions may be overturned, that the Court cannot enforce its own rulings but must rely on the executive department to do so, and that its appellate jurisdiction is within the control of Congress should make it clear that the notion of “judicial supremacy” is just a rhetorical bogeyman that has no real existence.
@cptbanjo Hamilton didn’t say it was the EXCLUSIVE authority of the courts to decide constitutionality. no one disputes that it is their role. But no one can cite one thing from the founders which puts that role exclusively and finally in the hands of the court. Anything else is just a lie.
@cptbanjo Hamilton was addressing the structure of the federal government. He was not addressing the relationship between the principle – the people of the states – and their agent – the federal government they created. The agent doesn’t dictate to the principle the terms of its existence. That’s nonsensical.
As Madison pointed out:
“Dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.”
It’s high time that the BILL OF RIGHTS are enforced.
If we had judges that review the laws instead of creating them some of this wouldn’t happen at all.
If we could get all citizens to just stop abiding by unconstitutional “laws” we would win. Unconstitutional laws are not laws. EVERY gun law on the books is unconstitutional because they infringe on “keeping” or “bearing” a weapon. Infringe: Act so as to limit or undermine (something). They cannot limit what type of weapon or ammo, where, when, or how I carry them.
All written legislated laws are enacted under the authority of the United States in Congress assembled for the United States which is the territory owned by and under the exclusive jurisdiction of the United States of America if you understand this then all these laws are limited to territory owned by and under the exclusive jurisdiction of the United States of America, therefore, not repugnant to the Constitution of the United States. The question is do these laws apply to YOU?
The States!
My wife and I are reading the book now. I think Nullification provides the way to protect our liberty without bloodshed. The alternatives are submission to tyranny or revolution. LIBERY AND PEACE, BUT LIBERTY IN ANY CASE!
@Battleforce3327 loved that piece. Well done and dead on assessment.
@ADIOCHAIN I thought you would, seeing that that is one of your biggest issues at this time.
@Battleforce3327 exactly what I’ve been trying to get across on Supremacy. The whole US seems utterly confused on its principle purpose.
@ADIOCHAIN This is just a thought, but do u think th@ the Act of 1871 & the 14th Amndmnt has something 2 do w/the Feds usage of the Sup.Cls
@Battleforce3327 a more appropriate question would be “has the act of 1871 made Washington DC any more habitable?”
)
@Battleforce3327 yes.
@ADIOCHAIN ok, just thought I would see if others out there are/were thinking along the same lines.
@Battleforce3327 also, tax policy has long been seen as a way to bend the will of the people, long before the conception of the US (1/2)
@Battleforce3327 (2/2) the primary failure of the people, accepting the misrepresentation of the interstate clause, corrupting the Sup.Cls
@ADIOCHAIN The Tax policies didn’t happen until the 20th Cen. The other happened just B4,During & after the Civil War. But agreed
@Battleforce3327 many people blame the 14th and Abraham Lincoln for the destruction of States rights. I however think he enforced them (1/2)
@Battleforce3327 (2/2) imo the Sup. Cls was far better written in the Constitution than ratified in the 14th A
@Battleforce3327 yes, I’m saying for the most part the true purpose of the Sup. Cls remained mostly in tack until the 20th century.
@ADIOCHAIN This, Your thoughts http://t.co/O66okXtPyp
@Battleforce3327 Article IV in the USC clearly gave Lincoln all the authority he needed to punish/eradicate slavery http://t.co/iKFz2Uiw2H
Rome, Britain, etc…every known tyranny in history has attempted to achieve this @Battleforce3327: @ADIOCHAIN http://t.co/ojMB8dOQV8
@Battleforce3327 freemarket and its propagation of liberty is and always will be in the hands of the people. Gov has only been its nemesis
@ADIOCHAIN Do you think that the U.S. has succeeded in doing this?
@Battleforce3327 in full. Much like the Roman Catholics subjected their sheep thru forced ignorance so has the US edu sys enslaved theirs…
@Battleforce3327 a simple way to judge this is to review our last election: the primary focus of both sides, jobs. The last hope of a slave.
@Battleforce3327 most people forget the majority of slaves, including the Irish, sold themselves for food and shelter. #jobs
@ADIOCHAIN I believe that there is a slight difference in Voluntary Servitude and Deceptive Involuntary Slavery brought on by “Legislation”
@ADIOCHAIN I believe that there is a slight difference in Voluntary Servitude & Deceptive “voluntary” Slavery brought on by “Legislation”
@Battleforce3327 who allows anti liberty legislation to be written and enforced? culpability is liberty.
@Battleforce3327 also, don’t get me wrong when I say #jobs. Seeking employment is not belittling, but if that is our end game…what a waste
@ADIOCHAIN Granted, We The People allowed it, but it was done through deception & collusion. The worst of it was done early in the 20th Cen
@ADIOCHAIN No, I didn’t misunderstand you on that, I fully agree with what happened concerning being a bond servant and the need to survive
@Battleforce3327 I’ve never been deceived on any of these issues. I have a feeling not many others have either. Willful ignorance?
@Battleforce3327 it had been played out, meandering through or system for a 100+ years. To many looking for scape goats.
@ADIOCHAIN Willful Ignorance, more than likely. Ppl tend to be lazy in thinking. But more are waking up to what is going on.
@Battleforce3327 my buddies dad just got told to turn his weapons by the VA. They’re wide awake now.
@ADIOCHAIN Hopefully he said a few choice words that aren’t very kind to them. Like Go F*** Yourself
@Battleforce3327 the last thing I want is help from country that hates me for defending its liberty.
@DollyDextra Excellent article &reminder of supremacy of the Constitution, & from the Founders, that laws in violation are no laws at all.
@rmack2x Amen! It’s an excellent read!