Yes they are.

This is a complicated area, and there has been a lot of word-fudging in spinning this subject. So bear with me as we take things step by step.

*    The U.S. Constitution generally guarantees the “Privilege of the Writ of Habeas Corpus.” The writ of habeas corpus is a court order a prisoner can obtain requiring the jailer to come into court and justify his detention of the prisoner. It is a traditional way in which those held can demand a fair trial by jury in a civilian court. The writ of habeas corpus is a treasured part of our traditional liberty. Belief that the British were infringing it was one cause of the American Revolution.  (The writ is called a “privilege” rather than a “right” because it is a creation of the legal system rather than a natural right, like the right to free speech.)

*    By the Constitution’s original meaning, the privilege of habeas corpus is guaranteed to all those in “allegiance” to the United States. “Allegiance” is an old technical legal term that includes both citizens and aliens legally in the country.

*    By successfully convincing a judge to issue a writ of habeas corpus, citizens, foreign visitors, and legal residents may obtain a hearing that may induce the judge to order a civilian trial. It matters not how heinous the crimes they are accused of. For example, a person charged with trying to blow up a building on behalf of a foreign power can be charged with treason. But while still merely accused, he is entitled to all the protections of due process, including a fair, public trial before a jury of his peers.

*    By the Constitution’s original meaning, habeas corpus does NOT apply if the Congress, as an incident to its war power, “suspends” the writ for a particular time and place. However, the Constitution says that Congress may “suspend” the writ only “when in cases of rebellion or invasion the public safety may require it.” Congress has not suspended the writ, and it is doubtful that occasional acts of terrorism constitute a sufficient “rebellion or invasion” to justify doing so. Even if Congress could suspend the writ, a Bill of Suspension would be a serious, much-debated measure for which Congress would have to assume direct political accountability. Political accountability is not a big priority with Congress right now.

*    Members of all belligerent armed forces (both sides) are subject to military, not civilian, law.

*    Thus, by the law of war, the executive (and the military officers under him) may incarcerate for the duration of the conflict any enemy combatants captured in the theater of war.

*    By the Constitution’s original meaning the executive has no constitutional power (without formal congressional suspension of the writ) to lock up citizens or lawful aliens apprehended outside the war theater. If accused of crime, the accused has the privilege of a jury trial in a civilian court. By the Constitution’s original meaning, this constitutional right does not apply to enemy aliens, wherever apprehended.

*    In 2008, the U.S. Supreme Court (erroneously, in my view) held that alien Guantanamo detainees have the right to habeas corpus to determine if they are really enemy combatants. Still, under this case if they are found to be enemy combatants they can go back to prison indefinitely.

Now, with that background, let’s look at the critical language of the Act, again step by step:

§1021: (a) Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force . . . includes the authority for the Armed Forces of the United States to detain covered persons . . . pending disposition under the law of war.

Comment: The Authorization for the Use of Military Force (AUMF) is the resolution passed in the wake of 9/11 authorizing the President to fight terrorism. The National Defense Authorization Act is sometimes justified as mere clarification of the AUMF.

(b) . . A covered person under this section is any person as follows:

Comment: This provision includes people accused of certain terror-related crimes. Fine— but it does not exempt U.S. citizens or legal aliens with U.S. territory. Thus, far, it appears they can be “detain[ed] . . . pending disposition under the law of war.” But what does that mean?

c) . .  The disposition of a person under the law of war . .  may include the following:
(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force. . .

Comment: This clarifies that the government may detain anyone so charged “without trial until the end of the hostilities.” Apologists for the law point out that it permits other dispositions “under the law of war,” including civilian trial. But the point is that the law does not require those other dispositions. The administration can simply decide to detain you “without trial until the end of hostilities.”

(d) . . . Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force.

Comment: This is a basis for the argument that all Congress is really doing is clarifying the AUMF. But this is cold comfort, because the position of the Obama administration is that the AUMF always authorized rounding up citizen-suspects and holding them without trial!

(e) . . . Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States.

Comment: This provision is sometimes touted as protecting citizens because it preserves existing Supreme Court decisions. The problem is that, as yet, there are no Supreme Court decisions that squarely provide the full measure of habeas corpus protection to citizens or legal aliens accused within our borders. This is true because neither the Bush nor the Obama administration has had the audacity to round up U.S. citizens without our borders and hold them indefinitely without trial.

Here are the principal Supreme Court decisions the law preserves:

(1) A post-Civil War case (Ex Parte Milligan) saying a citizen non-combatant  incarcerated outside the theater of war is entitled to habeas corpus. (This holding doesn’t help those accused of being combatants.)

(2) The World War II-era Quirin decision that permitted President Roosevelt to detain, try in a secret military hearing, and execute a U.S. citizen captured on U.S. territory and accused of being a German spy. Obviously, this decision—which is widely acknowledged to be egregious—offers no protection against the National Defense Authorization Act.

(3) The 2004 Hamdi case, which says that a U.S. citizen captured bearing arms in the war theater is NOT entitled to habeas corpus. He is entitled only to a minimal military hearing without a jury and without many of the traditional due process protections.. (Some apologists for the National Defense Authorization Act are claiming the Hamdi case granted a right of habeas corpus; this claim is flatly wrong.)

(4) The 2008 Boumedienne decision, which held that alien Guantanamo detainees are entitled to habeas corpus and a civilian hearing to show that they were non-combatants.

Obviously, none of these prior holdings addresses the habeas corpus rights of a U.S. citizen or legal alien apprehended within the U.S. and charged with being an enemy combatant. So there is no Supreme Court case providing the necessary protection preserved by the law’s provision that “existing law or authorities” are preserved.

§ 1022: (b) (1) . . . The requirement to detain a person in military custody under this section does not extend to citizens of the United States.
(2) . . . The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.

Comment: This section says that the administration is not REQUIRED to keep a U.S. citizen or legal resident alien in indefinite military custody. But it does not prevent the administration from doing so.

* * * *

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When you look at sections 1021 and 1022 of the National Defense Authorization Act objectively, they become scary in their potential. If the administration does try to use it to lock up American citizens without habeas corpus, the Supreme Court probably will void the incarceration and require a civilian trial. But in the normal course of events, vindicating one’s rights could take years.

Of course, in America, we traditionally don’t lock up citizens on mere suspicion. . . .

Or is that is now changing?

NDAA is the National Defense Authorization Act. Two sections of the bill permit the Kidnapping (arrest and indefinite detention without due process) of both citizens and non-citizens, charged with being tangentially related to terrorist groups or activities.

Members of Congress keep misleading constituents about what the bill actually does.

DownsizeDC.org already addressed the lie, “Don’t Worry, the NDAA exempts Americans” back on January 17. We consider that to be Part 1 in our responding to lies series.

The Latest Lie

A DC Downsizer writes, “Senator (blank)’s office is claiming that the NDAA gives the executive no new authority and only codifies a 2001 Supreme Court decision.”

This is supposed to make us feel better?

It doesn’t matter whether the office making this claim realizes they are prevaricating or they’re just ignorant and repeating a fable they’ve been told. Neither explanation of their behavior reflects well on them.

Let’s strip the cleverness. What are they’re ACTUALLY saying? 

“For years, the Executive Branch has usurped and used very similar powers. We, in Congress, have come along and brought the code of law in compliance with these acts. We have merely provided our endorsement and cover to them.”

Now, there’s actually a grain of truth in that statement, when it’s rendered that accurately. The Executive branch was outside the law. So what the Senator’s office is really saying is, “Two wrongs make a right.” 

But this answer is still misleading because this bill does NEW things . . . 

1) For the first time, America was declared part of the “battlefield” in the war on terrorism.

* Sen. Lindsey Graham (R-S.C.), who backed the bill, indicated that the bill “basically say(s) in law for the first time that the homeland is part of the battlefield,” and that people can be imprisoned without charge or trial “American citizen or not.”
* Another supporter, Sen. Kelly Ayotte (R-N.H.) also declared that the bill is needed because “America is part of the battlefield.”

2) Indefinite detention for American citizens was also novel.

Consider the following exchange between him and Senator Rand Paul from the Senate floor . . . 

MR. PAUL: My question would be, under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?

MR. McCAIN: I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.

3) As of yet, no bill calls for total repeal of BOTH offending sections, 1021 and 1022. But there are bills by Senator Diane Feinstein, Ron Paul, and others, calling for modification or repeal of various aspects.

Why would such bills be necessary, and even more important, why are they being resisted, IF, no new power is represented here?

• Repeal 1021? Well, we don’t really need it because the power already existed, right? 
• Declare that America is not part of the battlefield, continuing with Posse Comitatus? Why not, since there’s nothing new here?
• Exempt Americans? Why object, if there’s nothing novel about this law?

By the way, since there’s an office saying that there’s a Supreme Court case, and they are merely “ratifying,” then I’m curious about two more things . . . 

1) What is the decision to which they are referring?

2) What clause in the Constitution permitted either the Executive Branch or the Supreme Court to create a law, and the Congress to come along and “ratify” it? Isn’t this EXPRESSLY the opposite of the Constitutional design, whereby the elected representatives of the people legislate?

I hate to name names because this “Don’t Worry” lying campaign is widespread amongst Congress-criminals. Call your Reps and Senators to find out if they are among the guilty.

*******

EDITOR’S NOTE – This post originally appeared at DownsizeDC.org

CLICK HERE – for state and local model legislation to stop the NDAA in your area.

How the New Indefinite Detention Provisions can be used on Americans

Congress just passed, and the President just signed, a bill that gives legal authority to the President to kidnap and perpetually imprison persons, including American citizens, without the benefit of due process.

Members of Congress, in the days leading up to the vote, tried to assure their constituents that they have nothing to fear — that the bill doesn’t apply to Americans.

Some were lying. Most were deceived.

Now, I don’t want to imply that Barack Obama plans to sweep up every one of his critics (or even a select few) because of statements they’ve uttered publicly. That is overstatement. The law doesn’t permit that. But consider the following scenario…

You object to the way the Federal Leviathan State is run. You gather, every other Tuesday, with others who share your values. We’ll call your fictional group the Constitution League (CL).

One night, a new fellow shows up. He’s frustrated and outspoken. He complains that the time for meetings is over. Something must be done — something that will “get their attention.” You’re uncomfortable with his remarks but unsure how to respond.

You hope he never returns, and he doesn’t.

What you don’t know, until months later, is that one of our CL colleagues, the chapter Vice President, followed the vocal man out to the parking lot. The two exchanged email addresses and phone numbers. Then, your local VP reached out to a third man, a member of a CL chapter in the nearest big city. The three met regularly. They plotted and executed their own terrorist plot on a U.S. Government facility.

Now, your group meeting was the place they met. The Vice President used his CL email account. CL is all over the news. CL is now, for all intents and purposes, a terrorist group.

And you? Well, you’ve donated to the terrorist organization. You’ve participated in its meetings. The night this angry man walked in, you didn’t call the authorities.

* Can the President have the military come and arrest you? Yes!
* Can he (or she) send you to a military tribunal for trial or just hold you indefinitely in a military facility, without charges? Yes!

Even the bill co-sponsor, Senator McCain, appears to agree with this assessment. Senator Rand Paul asked John McCain, on the Senate floor, “…under the provisions, would it be possible that an American citizen could be declared an ‘enemy combatant’ and sent to Guantanamo Bay, and detained indefinitely?” McCain responded, “I think that as long as that individual, NO MATTER WHO THEY ARE, if they POSE A THREAT to the security of the United States of America, should not be allowed to continue the threat.” {Emphasis Added}

Wait a minute. Wasn’t there a provision in this bill that exempted Americans?

Despite what your Congressional office may have told you (if you called during the debate over this bill) the answer to that question is an emphatic NO!

The relevant sections of the bill are 1021 and 1022.

* Section 1021 asserts the President’s authority to arrest suspected (not convicted) terrorists and gives him the option to choose whether or not they even get a trial, and if so, what kind of trial.

* Section 1022 requires that a certain class of terrorist get no trial. Instead they must be held in military prisons, for as long as this President, or any future President desires.

SECTION 1021

Section 1021 is very expansive in its reach. It “includ[es] any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.”

* Who is “any person?”
* What is a “belligerent act?”
* What is “direct support?”

One could be safe in assuming these words mean whatever a creatively-minded prosecutor, a flexible judge, and an ignorant jury define them to mean — EXCEPT THAT, UNDER THIS ACT, ONE MIGHT NEVER GET AS FAR AS A COURT HEARING.

These terms will be defined by the bureaucrats in power.

They could be used against political opponents.

1021 has NO exceptions. There’s not even a hint of an exception. Remember, that section gave the President the authority to arrest you and a set of options on how you were to be handled. These choices are completely divorced from the 4th, 5th, 6th, and 8th Amendments, as well as the Treason provisions of Article III. The President’s new alternatives are…

1. Detention without trial by the military
2. Trial by a military commission
3. Trial by some other court of the President’s choosing
4. Shipping you off to a foreign jurisdiction (info here)

SECTION 1022

1022 is a REQUIREMENT — a binding mandate upon the President. President Obama threatened to veto the bill, but only because he feared 1022 would restrict his power too much. http://gawker.com/5866210/jon-stewart-bashes-obama-for-backing-indefinite-detention-bill

This section is for your fellow CL members/plotters. Whereas, you got snatched up for “support” or “aid” to the plot, they actually carried out an attack, or as the section itself indicates…

“…participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.”

Section 1022 requires the President to go with option #1 above — the other three options are off the table. In other words, no trial, either in a civilian court or military tribunal.

In the final version of the bill, after a public storm started to erupt, the title of the section was changed to indicate that it only applied to “foreign al-Qaeda terrorists.” However, titles are not normally considered part of the law but merely summary descriptions to the reader of a bill.

But this title is especially IRONIC, because it’s this section that includes the so-called exemption for American citizens. Why would you need to exempt American citizens from a section of law that applies to “foreign al-Qaeda terrorists?”

The answer is because the section applies to any kind of “terrorist,” domestic or foreign, no matter what the title says.

And here’s the so-called exemption, with the key word highlighted…

The REQUIREMENT to detain a person in military custody under this section does not extend to citizens of the United States.

That means that military custody, without a trial, is mandated by law, but that the President, at his discretion or by written policy, may issue a waiver on the basis that a person is an American citizen.

If this provision was a true safeguard for American citizens, then the line would’ve been written like this…

Military custody of citizens of the United States is still prohibited under this act.

See the difference? It’s a requirement that can be waived at discretion, as opposed to a prohibition.

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Now, do you realize Congress has given the Federal State the power to use military detention on its own citizens? And that they’ve made it possible to wage a war on peaceful activists, if they can just incite someone in your group to attempt something violent?

Don’t worry. It’s not like the FBI is busy infiltrating meetings, entrapping some dullard into a plot, equipping and financing his efforts, and then claiming credit for stopping another terrorist attack! Oh wait, that’s happened about 40 times since 9/11.

Thus, to complete our story, the angry man who showed up at the CL meeting might’ve work for the FBI. And he duped two idiots in your group, who put you and your fellow members in legal jeopardy.

This new law is that serious. President Obama has claimed he won’t use this power. All that needs to happen now is a provocative incident. Then, all bets are off. Since these nearly unlimited, un-constitutional powers are now law, this President, or a future one, will be able to kidnap and disappear Americans. It could very easily be open season for the police state.

—–

Jim Babka is the President of Downsize DC Foundation and DownsizeDC.org, Inc.. DownsizeDC.org will soon launch a campaign to repeal these sections from the law.

Copyright © 2012 by Jim Babka. Permission to reprint in whole or in part is gladly granted, provided full credit to the author, DownsizeDC.org and TenthAmendmentCenter.com is given.

Attorneys with NORML have filed suit against the federal government over its crackdown on medical marijuana distribution and cultivation in California. In lawsuits filed last week in the four US Attorney districts in the state, the NORML attorneys bring a number of legal and constitutional arguments to bear in asserting that the federal government has overstepped its boundaries in interfering with the state’s medical marijuana business.

Leading the legal charge are San Francisco attorneys Matt Kumin, David Michael, and Alan Silber.

The lawsuits seek a temporary injunction to block the state’s four US Attorneys, as well as Attorney General Eric Holder and DEA administrator Michele Leonhardt, “from arresting or prosecuting Plaintiffs or those similarly situated, seizing their medical cannabis, forfeiting their property or the property of their landlords or threatening to seize property, or seeking civil or administrative sanctions against them or parties whose property is used to assist them” while the case is being heard.

The plaintiffs in the case are California medical marijuana dispensaries, cultivators, and patients. Some targeted dispensaries have already been forced to shut down by a deadline last Friday to avoid possible federal reprisals if the temporary injunction is not granted.

The lawsuits also seek a permanent injunction barring further federal action against lawful (under state law) medical marijuana operators and patients. And they ask the courts to declare the federal Controlled Substances Act unconstitutional to the extent that it blocks California residents from obtaining marijuana as medicine as is legal under state law.

The lawsuits are a response to a federal offensive against medical marijuana in California unleashed last month, when the Justice Department sent dozens of letters to California landlords and dispensaries ordering them to close down or face possible seizure of their properties and criminal prosecution. Dozens of dispensaries have already closed in response to the threats.

The federal offensive has also included SWAT-style DEA raids on medical marijuana operations, including some that are among the most closely regulated under state law. In Mendocino County, for example, the DEA raided Northstone Organics, a cultivation operation so regulated by local authorities that every plant had a sheriff’s tag on it.

The lawsuits claim the federal government “entrapped” medical marijuana suppliers by seeming to give the okay to their operations in an October 2009 Justice Department memo. They also claim that the federal actions violate the 9th, 10th, and 14th Amendments to the US Constitution.

The 9th Amendment says that merely because some rights are enshrined in the Constitution does not mean the federal government can “deny or disparage others retained by the people.” The NORML attorneys argue that threatening seizure of property and criminal sanctions violates the rights of the people to “consult with their doctors about their bodies and health.”

The 10th Amendment gives powers not delegated to the federal government “to the States respectively, or to the people.” The NORML attorneys argue that the States have the “primary plenary power to protect the health of its citizens,” and since the government has recognized and not attempted to stop Colorado’s state-run medical marijuana dispensary program, it cannot suggest Colorado has a state’s right that California does not.

A lawsuit challenging the federal crackdown filed last month by Americans for Safe Access also makes a 10th Amendment argument. The feds have “instituted a policy to dismantle the medical marijuana laws of the state of California and to coerce its municipalities to pass bans on medical marijuana dispensaries,” the advocacy group complained.

“Although the Obama Administration is entitled to enforce federal marijuana laws, the 10th Amendment forbids it from using coercive tactics to commandeer the law-making functions of the State,” said ASA Chief Counsel Joe Elford, who filed the lawsuit in San Francisco. “This case is aimed at restoring California’s sovereign and constitutional right to establish its own public health laws based on this country’s federalist principles.”

The 14th Amendment provides all citizens equal protection under the law. The NORML attorneys argue that because the federal government allows a handful of people access to marijuana through the Investigational New Drug program, allows a state-licensed medical marijuana system in Colorado to go unharassed, and blocks scientific research into medical marijuana, it is effectively denying equal protection to California residents.

The NORML attorneys also take issue with the US Supreme Court decision in Raich v. Gonzalez, which upheld the use of the Constitution’s interstate commerce clause to stop California patients from legally growing their own medicine.

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While acknowledging the Raich decision, they wrote that “it is still difficult to imagine that marijuana grown only in California, pursuant to California state law, and distributed only within California, only to California residents holding state-issued cards, and only for medical purposes, can be subject to federal regulation pursuant to the Commerce Clause. For that reason, Plaintiffs preserve the issue for further Supreme Court review, if necessary and deemed appropriate.”

The courts are going to be busy with this matter for awhile, but a preliminary injunction would allow the California medical marijuana industry to go about its business unmolested while the matter gets sorted out.

Phillip S. Smith is a writer and editor with StoptheDrugWar.org. He is a graduate of the University of South Dakota (BA Political Science, 1979) and the University of Texas at Austin (MA Latin American Studies, 1989), and served as writer and Associate Editor at the magazine Covert Action Quarterly from 1993-1996. Phil has done freelance reporting on Central American and Mexico since the 1980s, and has had articles published in In These Times, Guardian (now defunct), New Politics and many other publications. He is also a long time drug policy activist, having helped to found one of the first NORML chapters in the state of South Dakota. He has been involved in local drug reform efforts in Austin, TX and Washington, DC, including the DC Metro chapter of NORML.

CC / Attribution / StoptheDrugWar.org

The protesters exemplify a growing frustration and disillusionment with the status quo seen across the United States over the last year. We’ve seen evidence of this in other measures of public opinion. A recent Gallup poll revealed more than half of all Americans are “dissatisfied with the nation’s governance,” and further that nearly half of those polled believe the federal government possesses too much power and poses a threat to individual liberty.

They’ve seen the spiraling debt, endless war, and increasingly concentrated power. They recognize the problem.

But many seem less sure of solutions. This creates the opportunity to educate the disaffected and create allies in the quest to rein in overreaching federal power. But it also leaves the door open for others to push the movement toward tyrannical actions.

TAC deputy director Bryce Shonka spent nearly five hours talking with folks at Occupy Seattle on Oct. 4. He said he saw a lot of potential in the gathering. He called it a, “Blank page youth movement waiting for leaders.”

What will we write on that page?

The initial call for Occupy Wall Street apparently came last summer from a magazine called AdBusters. The publication, based in Vancouver, British Columbia, Canada, describes itself as, “a not-for-profit, reader-supported, 120,000-circulation magazine concerned about the erosion of our physical and cultural environments by commercial forces. Our work has been embraced by organizations like Friends of the Earth and Greenpeace, has been featured in hundreds of alternative and mainstream newspapers, magazines, and television and radio shows around the world.”

David Graeber, an American anthropologist, was one of the initial organizers of Occupy Wall Street. He taught at Yale, but the university declined to rehire the controversial professor in 2007. He currently holds a position as Reader in Social Anthropology at Goldsmiths, University of London. He is known for his anarchist views and has ties to Industrial Workers of the World, an international labor union that advocates for an abolishment of wages. The union website describes the organization’s goal

The working class and the employing class have nothing in common. There can be no peace so long as hunger and want are found among millions of the working people and the few, who make up the employing class, have all the good things of life.

Between these two classes a struggle must go on until the workers of the world organize as a class, take possession of the means of production, abolish the wage system, and live in harmony with the Earth.

In an interview with the Daily Kos, he explains how the event was organized. On July 2, a general assembly was held, but Graeber said that a Marxist group was already acting like it was running the show and it seemed more like a rally, so he and several others pulled a group together to hold a real assembly.

“AdBusters had already advertised the date to 80,000 people. And their date was a Saturday. You can’t really shut down Wall Street on a Saturday. So we were working under some significant constraints. We assembled 80 or 100 people and formed working groups for outreach, process, so forth and so on. And we began meeting every week,” Graeber told the Daily Kos.

The movement really has global roots.

“One thing that helped a lot was a smattering of people from Spain and Greece and Tunisia who had been doing this sort of thing more recently. They explained that the model that seemed to work was to take something that seemed to be public space, reclaim it, and build up an organization headquarters around that from which you can begin doing other things.”

Graeber described the root philosophy of the movement in terms of decentralization and direct democracy, thus the lack of any direct demands.

“We’re trying to reframe things away from the rhetoric of demands to a question of visions and solutions. Now, how that translates into actual social change is an interesting question. One way this has been done elsewhere is you have local initiatives that come out of the local assemblies,” he told the Daily Kos.

Of course, other groups have moved into the spotlight at well. Traditional left leaning organizations and unions have voiced support and participated in the occupation.

“It is organically happening, but there are definite problems that occur. We found this back in the days of the globalization movement. Unions were very supportive and provided resources, but they’re very different organizations. The real difficulty is how to work with people who are top-down and have a funding base, as it means there are things they can say in public and things they can’t, and groups where people can say whatever they want and the whole idea is to be decentralized. One problem I’ve already heard of is that people are coming in and changing the tenor of the general assemblies to speeches, and that’s not really what it’s supposed to be about. So you have to balance the aspect where you’re trying to show what direct democracy could be like and the effort to link up with groups that have a form of organization we’ve rejected,” Graeber said.

The message of decentralization certainly aligns with the core principles of the Tenth Amendment Center. After all, a powerful federal government dictating one-size-fits-all policy for the entire United States stands in direct opposition to the philosophy advocated by OWS organizers. On the other hand, direct democracy was something the founders of the United States found dangerous. James Madison wrote:

From this view of the subject it may be concluded that a pure democracy, by which I mean a society consisting of a small number of citizens, who assemble and administer the government in person, can admit of no cure for the mischiefs of faction.  A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual.  Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths. 

The good news; Shonka said many participants in Seattle expressed a basic distrust of the feds.

“I don’t have any faith, and I don’t trust the current federal government,” one OWS Seattle occupier told Shonka.

“Right there you’ve got it,” Shonka said.

But the direction the action will ultimately take remains up in the air.

“They know a few things about a few things. Enough to be dangerous, or to be our allies,” Shonka said.

The small group gathered in front of the Chase Bank building in downtown Lexington seemed completely unaware of the bigger picture, expressing a hodge podge of ideas and points of view. One young man, a self-proclaimed socialist, advocated for higher taxes on the “rich” and corporations for the purpose of wealth redistribution. When the conversation turned to constitutional restraint as a possible solution to America’s problems, he turned away in disgust.

“Oh yeah, the Constitution that enslaved black people and women. Yeah. Right.”

But others said they simply wanted to live their lives, find decent jobs and earn a decent living. They described themselves as the “99 percent,” and although much of the discussion was tinged with class warfare rhetoric, the group seemed generally open to the message of constitutionally restrained government.

But lacking any core principles, they also seemed easily swayed and gave the impression that they would favor coercive government power if they thought it was wielded to their benefit.

After spending an hour or so with Occupy Lexington participants, I left them with a message.

“Remember, any power you give the federal government to advance your cause, whatever that may be, you grant the feds the same power to turn against you.”

Seems a fitting message in these times.

You can sympathize with the humanitarian motives of our Libyan intervention while still doubting its constitutionality.

The Constitution prescribes the rules about how the United States is to enter a war, and the Obama administration has violated those rules.

The administration argues that the hostilities, because limited, do not rise to the level of “war,” as the Constitution uses that word.  But that position is almost surely wrong: Founding-Era dictionaries and other sources, both legal and lay, tell us that when the Constitution was approved, “war” consisted of any hostilities initiated by a sovereign over opposition.  A very typical dictionary definition was, “the exercise of violence under sovereign command against such as oppose.”  (Barlow, 1772-73).  I have found no suggestion in any contemporaneous source that operations of the kind the U.S. is conducting were anything but “war.”

The Founders’ favorite authority on international law, Vattel, divided wars into three principal categories: defensive wars, offensive just wars, and offensive unjust wars. A nation fought a defensive war when it responded to an invasion.  It fought a just offensive war when it responded to an infringement of its rights short of invasion.  It fought an unjust offensive war if it attacked another country even though that other country had not infringed its rights.  Examples of unjust offensive wars were those fought for conquest or to limit an innocent neighbor’s power.

A defensive war did not require a declaration.  A just offensive war did require one, although it might be called something other than “declaration of war.”  The declaration triggered certain consequences under international law, but Vattel says its principal purpose was to give the other country a last chance to correct the injury it was inflicting.  Because unjust wars were those launched by a country that had not suffered legal injury, it follows that “declarations of war” issued by an aggressor were at least partially defective.

Now: The federal government has only those powers the Constitution grants it.  The Constitution grants the federal government authority to begin and wage a defensive war: “The United States shall . . . protect each [state] against Invasion” (IV-4).  (Protection of U.S. territories is impliedly authorized as well: IV-3-2) But the Constitution grants only Congressauthority to initiate a just offensive war€”that is, an American attack to vindicate our legitimate rights: “The Congress shall have Power . . . To declare War.” (I-8-11).  It can be inferred from the document that the government has no constitutional power to wage an unjust war.

The Constitution entrusts Congress with creating the means for waging war: “To raise and support Armies” (I-8-12),  “To provide and maintain a Navy” (I-8-13), and “To provide for calling forth the Militia to . . . repel Invasions” (I-8-15).  It grants the President authority to serve as Commander-in-Chief (II-2-1).  Under the latter provision, the President can oppose an invader (engage in defensive war) without prior congressional authorization, since “The United States [not just Congress] shall . . . protect each [state] against Invasion” (IV-4).   But there is no enumerated power authorizing the President to launch an offensive war without a congressional resolution that qualifies in substance as a declaration.

Many quotations from key Founders show that is was their understanding as well. For example, James Wilson, one of the greatest Founders, told the Pennsylvania ratifying convention:

“This system will not hurry us into war; it is calculated to guard against it. It will not be in the power of a single man, or a single body of men, to involve us in such distress; for the important power of declaring war is vested in the legislature at large: this declaration must be made with the concurrence of the House of Representatives. . . .”

(This quote is only one of several.)

Nevertheless, many well-meaning people have sought to find a presidential power to wage undeclared war.  In part they rely on practice arising decades, even centuries, after the Founding.  As I point out in The Original Constitution: What It Actually Said and Meant,such evidence is too remote to be a reliable source of original understanding.  The fact that the President sometimes has acted unconstitutionally does not render those acts constitutional.

The most sophisticated presidential defenders make the following argument:

*    What determines constitutional force is not how the ratifiers understood the document, but its objective “original public meaning” to the larger public;

*    the Constitution grants the President the “executive Power” (II-1-1);

*    although the Constitution does not mention undeclared wars, based on the practice of the British Crown the President’s “executive Power” included authority to initiate them.

Unfortunately for this argument, recent scholarship has largely destroyed the view that the phrase “the executive Power” conferred the King of England’s power on the President.  The most comprehensive study of the subject is Curtis A. Bradley & Martin S. Flaherty’s  article,Executive Power Essentialism and Foreign Affairs, 102 Mich. L. Rev. 545 (2004).  In addition,my own published investigation of Founding-Era legal drafting practices discovered that those practices were completely inconsistent with the conclusion that the phrase “executive Power” conferred any authority.

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As for the claim that the Constitution’s “original public meaning” trumps what the ratifiers understood, to my knowledge no one has contested the conclusions of my excruciatingly-footnoted 2007 study of Founding-Era interpretative methods.  It concluded that the Constitution was to be interpreted by the ratifiers’ understanding, with “original public meaning” being consulted only when a coherent understanding could not be found.  In the case of the war power, though, the ratifiers’ understanding is pretty clear.

Although the Obama administration’s Libya operations probably qualify as a constitutionally-authorized “just war” (because it is designed to assist an oppressed people who have risen in rebellion), launching those operations without prior congressional consent violated the Constitution.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See http://constitution.i2i.org/about/.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution (Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute. Visit his blog there at http://constitution.i2i.org/

In spite of the fact that the Constitution was recently read in its entirety (minus a few sections and amendments), for the first time in the history of the House, several senior Republicans must have either been absent or just weren’t paying attention to what they were hearing. (No) Surprise! 

Less than three months after the historic reading, they were back to business as usual — the business of usurping more power from the states and consolidating it in Washington, DC.  House Judiciary Chairman Lamar Smith (R-Texas), Homeland Security Chairman Peter King (R-N.Y.) and Crime, Terrorism, and Homeland Security Subcommittee Chairman James Sensenbrenner (R-Wisc.) sent a letter to Department of Homeland Security Secretary Janet Napolitano,  demanding she not extend the May 11 deadline for the states to comply with the federal Real ID Act.

In spite of the hysterical warning contained in their letter, the Obama administration wisely decided to do for a third time what the Bush administration was forced to do the first time when many state governments simply refused to comply with the act’s unconstitutional requirements — extend the deadline again.

Anticipating that the Obama administration would again back down to avoid conflict with the states, the letter asserted that the recent arrest of a terrorist suspect in Texas, “..underscores the importance of the immediate implementation of REAL ID.  Any further extension of REAL ID threatens the security of the United States.  We cannot understand how you could even contemplate a further delay – a delay that places American lives at risk.”

Homeland Hypocrisy
The real but greatly exaggerated danger of terrorism is a tried and true method of scaring Americans into giving the federal government a free pass to circumvent the Constitution. But how ironic that this time, one of the GOP chairmen who sent this letter was none other than Homeland Security Chairman Peter King! If you’ve heard how King spent decades raising money for the US-based Irish Northern Aid Committee (NORAID) and speaking at their events, you’ll understand.

NORAID, the US Justice department long suspected, was merely an arm of the Provisional Irish Republican Army (PIRA), and both British and American intelligence reports seem to support that suspicion. In a recent article about King and his involvement with NORAID, investigative journalist William N. Grigg brought to many people’s attention what Ed Maloney, well known for his coverage of the PIRA, wrote in the New York Sun back in 2005:

“During his visits to Ireland, Mr. King would often stay with well-known leaders of the IRA, and he socialized in IRA drinking haunts. At one of such clubs, the Felons, membership was limited to IRA veterans who had served time in jail.”

So the King who demands that Real ID be shoved down our throats to supposedly protect us from Islamist terrorists, is the same King who raised funds for NORAID, which almost certainly went to support another terrorist organization that murdered Americans abroad. The 1983 bombing of Harrods department store in London, was carried out by the PIRA and killed six people and injured 90 others. Among the dead was a 28-year old American named Kenneth Salvesan. And among the injured was another American named Mark McDonald, whose wounds were very severe. Margaret Thatcher wrote to Ronald Reagan immediately after the bombing to demand that he crack down on NORAID, the organization that King supported for so long.

Why States Must Continue to Nullify the Federal Real ID Act
Besides the hypocrisy that usually accompanies homeland security smoke and mirrors, is the fact that nowhere in the Constitution is the federal government authorized to set standards for state driver’s licenses and ID cards. Of course today’s state issued licenses and ID cards didn’t exist when the Constitution was drafted, but both before and after its ratification, the states had the authority to create such documents, since they retained all powers not delegated to the federal government by the Constitution that were not prohibited to them by it (see 10th Amendment). If members of Congress are truly convinced that federal standards for state issued ID cards are necessary for the security of the United States, then they should propose a constitutional amendment. Of course, the vast majority of the people who make up our so called “federal” government have long behaved as if they’d never heard of the Constitution, or what Jefferson called it’s cornerstone — the 10th Amendment.

And what about the enormous costs associated with Real ID? While it’s true these outrageously expensive mandates have again reared their ugly head right at a time when many states face a severe budget crisis (the primary reason given by DHS for the most recent extension). Even if big budget surpluses were the norm among states these days, it would be no excuse for state governments to shirk their duty by submiting to an act of usurpation like Real ID. In spite of the decision many House Republicans have made to indulge in situational constitutionalism (the obnoxious habit of supporting the Constitution only when it is likely to result in a policy outcome one happens to favor), a far greater number of Republicans and Democrats in state governments across the country have chosen a more honorable path — that of state interposition and nullification.

Given that Real ID is both an expensive and unconstitutional act that threatens privacy, freedom and federalism, 25 states over the last several years have, according to the Tenth Amendment Center’s legislative tracking page:

“..passed resolutions and binding laws denouncing and refusing to implement the Bush-era law..While the law is still on the books in D.C., its implementation has been ‘delayed’ numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

James Madison, the chief author of both the Constitution and the Bill of Rights wrote in 1798 that when the federal government exercises powers not authorized by the Constitution, the states, “..are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”

Many state officials have faithfully carried out Madison’s admonition by rendering the Real ID Act null, void and without force within their state’s boundaries.  Now it’s up to us, the people of the several states, to remind them often, between now and the next deadline in January of 2013,  that they need to keep it that way.

EDITOR’S NOTE:  Tom Woods will be a featured speaker at upcoming Nullify Now! tour stops in Cincinnati, New Hampshire, Austin, and Los Angeles..   Get your tickets at http://www.nullifynow.com or by calling 888-71-TICKETS

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In January 2011 my book Nullification became notorious when it was linked to a bill that declared Barack Obama’s health care law unconstitutional and therefore void and of no effect in the state of Idaho.  (Other states have been introducing similar bills, but Idaho grabbed the media’s attention.)  Legislators had read it, the news media reported, and while Governor Butch Otter turned down a state senator’s offer of a copy, that was only because he already had one.  He had read it, too.

Naturally, the smear patrol went into overdrive.  Why, this is crazy talk from a bunch of “neo-Confederates” who hate America!  Anyone who has observed American political life for the past 20 years could have predicted the hysterical replies down to the last syllable.

“Nullification” dates back to 1798, when James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions, respectively.  There we read that the states, which created the federal government in the first place, by the very logic of what they had done must possess some kind of defense mechanism should their creation break free of the restraints they had imposed on it.  Jefferson himself introduced the word “nullification” into the American political lexicon, by which he meant the indispensable power of a state to refuse to allow an unconstitutional federal law to be enforced within its borders.

Today, political decentralization is gathering steam in all parts of the country, for all sorts of reasons. I fail to see the usefulness of the term “neo-Confederate” – whatever this Orwellian neologism is supposed to mean – in describing a movement that includes California’s proposal to decriminalize marijuana, two dozen states’ refusal to abide by the REAL ID Act, and a growing laundry list of resistance movements to federal government intrusion. As states north and south, east and west, blue and red, large and small discuss the prospects for political decentralization, the Enforcers of Approved Opinion have leaped into action.  Not to explain where we’re wrong, of course – we deviants are entitled at most to a few throwaway arguments that wouldn’t satisfy a third grader – but to smear and denounce anyone who strays from Allowable Opinion, which lies along that glorious continuum from Joe Biden to Mitt Romney.

Anyone who actually reads the book will discover, among many other things, that the Principles of ’98 – as these decentralist ideas came to be known – were in fact resorted to more often by northern states than by southern, and from 1798 through the second half of the nineteenth century were used in support of free speech and free trade, and against the fugitive-slave laws, unconstitutional searches and seizures, and the prospect of military conscription, among other examples. And nullification was employed not in support of slavery but against it.

When Nullification was released, here’s what I predicted would happen: “If the book’s arguments are addressed at all, they will be treated at a strictly second-grade level. (Official Left and Right agree on more than they care to admit, an unswerving commitment to nationalism being one of those things.) The rest of the so-called reply will run like this: Nullification is a secret plot to restore the southern Confederacy, and Woods himself is a sinister person with wicked intentions, before which all his fancy moral and constitutional arguments are nothing but a devious smokescreen.”  (I went on to make my Interview With a Zombie video to suggest how a typical media interview on the subject might run, and made my first video blog in response to the hysteria over Idaho.)

Since that is indeed what has happened, I’m following up with this point-by-point reply to the standard arguments I knew would be trotted out against the idea.  (My replies to these claims are discussed in much greater detail in the book.)

“Nullification violates the Constitution’s Supremacy Clause.”

This may be the most foolish, ill-informed argument against nullification of all.  It is the reply we often hear from law school graduates and professors, who are taught only the nationalist version of American history and constitutionalism.  It is yet another reason, as a colleague of mine says, never to confuse legal training with an education.

Thus we read in a recent AP article, “The efforts are completely unconstitutional in the eyes of most legal scholars because the U.S. Constitution deems federal laws ‘the supreme law of the land.’” (Note, by the way, the reporter’s use of the unnecessary word “completely,” betraying his bias.)

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause.  Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause.  His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land.  Citing the Supremacy Clause merely begs the question.  A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

“Nullification is unconstitutional; it nowhere appears in the Constitution.”

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist.  The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people.  Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant.  Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument.  Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

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 13 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.

2) In the American system no government is sovereign, not the federal government and not the states.  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.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power.  No other arrangement makes sense.  No one asks his agent whether the agent has or should have such-and-such power.  In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created.  James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution supposes that 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.

“The Supreme Court declared itself infallible in 1958.”

The obscure obiter dicta of Cooper v. Aaron (1958) is sometimes raised against nullification.  Here the Supreme Court expressly declared its statements to have exactly the same status as the text of the Constitution itself.  But no matter what absurd claims the Court makes for itself, Madison’s point above holds – the very structure of the system, and the very nature of the federal Union, logically require that the principals to the compact possess a power to examine the constitutionality of federal laws.  Given that the whole argument involves who must decide such questions in the last resort, citing the Supreme Court against it begs the whole question – indeed, it should make us wonder if those who answer this way even understand the question.

“Nullification was the legal doctrine by which the Southern states defended slavery.”

This statement is as wrong as wrong can be.  Nullification was never used on behalf of slavery.  Why would it have been?  What anti-slavery laws were there that the South would have needed to nullify?

To the contrary, nullification was used against slavery, as when northern states did everything in their power to obstruct the enforcement of the fugitive-slave laws, with the Supreme Court of Wisconsin going so far as to declare the Fugitive Slave Act of 1850 unconstitutional and void.  In Ableman v. Booth (1859), the U.S. Supreme Court scolded it for doing so.  In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act.  Who’s defending slavery here?

“Andrew Jackson denounced nullification.”

True, though Jackson was presumably not infallible.  (Had nullification really been all about slavery, then Jackson, a slaveholder himself, should have supported it.)  His proclamation concerning nullification was in fact written by his secretary of state, Edward Livingston, and that proclamation was, in turn, dismantled mercilessly – mercilessly – by Littleton Waller Tazewell.

“You must be a ‘neo-Confederate.’”

I confess I have never understood what this Orwellian agitprop term is supposed to mean, but it is surely out of place here.  Jefferson Davis, president of the Confederacy, actually denounced nullification in his farewell address to the U.S. Senate.  South Carolina, in the document proclaiming its secession from the Union in December 1860, cited the North’s nullification of the fugitive-slave laws as one of the grievances justifying its decision.

Don’t expect critics of nullification to know any of this, and you won’t be disappointed.

One of the points of my book Nullification, in fact, is to demonstrate that the Principles of ’98 were not some obscure southern doctrine, but at one time or another were embraced by all sections of the country.  In 1820, the Ohio legislature even passed a resolution proclaiming that the Principles of ’98 had been accepted by a majority of the American people.  I do not believe there were any slaves in Ohio in 1820, or that Ohio was ever part of the Confederacy.

“James Madison spoke against the idea of nullification.”

More sophisticated opponents think they have a trump card in James Madison’s statements in 1830 to the effect that he never intended, in the Virginia Resolutions or at any other time, to suggest that a state could resist the enforcement of an unconstitutional law.  Anyone who holds that he did indeed call for such a thing has merely understood him.  He was saying only that the states had the right to get together to protest unconstitutional laws.

This claim falls flat. In 1830 Madison did indeed say such a thing, and pretended he had never meant what everyone at the time had taken him to mean.  Madison’s claim was greeted with skepticism at the time.  People rightly demanded to know: if that was all you meant, why even bother drafting such an inane and feckless resolution in the first place?  Why go to the trouble of passing solemn resolutions urging that the states had a right that absolutely no one denied?  And for heaven’s sake, when numerous states disputed your position, why in the Report of 1800 did you not only not clarify yourself, but you actually persisted in the very view you now deny and which everyone attributed to you at the time?  Madison biographer Kevin Gutzman (see James Madison and the Making of America, St. Martin’s, forthcoming 2011) dismantled this toothless interpretation of Madison’s Virginia Resolutions in “A Troublesome Legacy: James Madison and ‘The Principles of ’98,’” Journal of the Early Republic 15 (1995): 569-89.  Judge Abel Upshur likewise made quick work of this view in An Exposition of the VirginiaResolutions of 1798, excerpted in my book.

The elder Madison, in his zeal to separate nullification from Jefferson’s legacy, tried denying that Jefferson had included the dreaded word in his draft of the Kentucky Resolutions. Madison had seen the draft himself, so he either knew this statement was false or was suffering from the effects of advanced age. When a copy of the original Kentucky Resolutions in Jefferson’s own handwriting turned up, complete with the word “nullification,” Madison was forced to retreat.

In summary, then, (1) the other state legislatures understood Madison in 1798 as saying precisely what Madison later tried to deny he had said; (2) Madison did not correct this alleged misunderstanding when he had the chance to in the Report of 1800 or at any other time during those years; and (3) the text of the Virginia Resolutions clearly indicates that each state was “duty bound” to maintain its constitutional liberties within its “respective” territory, and hence Madison did indeed contemplate action by a single state (rather than by all the states jointly), as supporters and opponents alike took him to be saying at the time.

“Nullification has a ‘shameful history.’”

So we are instructed by the scholars who populate the Democratic Party of Idaho.  Was it “shameful” for Jefferson and Madison to have employed the threat of nullification against the Alien and Sedition Acts of 1798?  Was it “shameful” of the northern states to have employed the Principles of ’98 against the unconstitutional searches and seizures by which the federal embargo of 1807-1809 was enforced?  Was it “shameful” for Daniel Webster, as well as the legislature of Connecticut, to have urged the states to protect their citizens from overreaching federal authority should Washington attempt military conscription during the War of 1812?   Was it “shameful” for the northern states to do everything in their power to obstruct the enforcement of the fugitive-slave laws (whose odious provisions they did not believe were automatically justified merely on account of the fugitive-slave clause)?  Was it “shameful” when the Supreme Court of Wisconsin declared the Fugitive Slave Act of 1850 unconstitutional and void, citing the Kentucky Resolutions of 1798 and 1799 in the process?

May I take a wild guess that no Democrat in the Idaho legislature knows any of this history?

The “shameful history” remark is surely a reference to southern resistance to the civil rights movement, in which the language of nullification was indeed employed. The implication is that Jeffersonian decentralism is forever discredited because states have behaved in ways most Americans find grotesque.  They are states, after all, so we should not be shocked when their behavior offends us.  But this is apples and oranges.  This outcome was possible only at a time when blacks had difficulty exercising voting rights, a situation that no longer obtains.  Things have changed since Birmingham 1963 in other ways as well.  The demographic trends of the past three decades make that clear enough, as blacks have moved in substantial numbers tothe South, the only section of the country where a majority of blacks polled say they are treated fairly.  It is an injustice to the people of the South, as well as an exercise in emotional hypochondria, to believe the states are on the verge of restoring segregation if only given the chance.  I mean, really.

By exactly the same reasoning, incidentally, any crime by any national government anywhere would immediately justify a world government.  Anyone living under that world government who then favored decentralization would be solemnly lectured about all the awful things that had happened under decentralism in the past.

Supporters of nullification do not hold that the federal government is bad but the state governments are infallible.  The state governments are rotten, too (which is why we may as well put them to some good use by employing them on behalf of resistance to the federal government).  We are asking under what conditions liberty is more likely to flourish: with a multiplicity of competing jurisdictions, or one giant jurisdiction?  There is a strong argument to be made that it was precisely the decentralization of power in Europe that made possible the development of liberty there.

This objection – why, an institutional structure was once put to objectionable purposes, so it may never be appealed to again – never seems to be directed against centralized government itself, particularly the megastates of the nationalistic twentieth century.  I rather doubt nullification critics would turn this argument against themselves – by saying, for instance, “Centralized governments gave us hundreds of millions of deaths, thanks to total war, genocide, and totalitarian revolutions.  In the U.S. we can point to the incarceration of hundreds of thousands of Japanese and a horrendously murderous military-industrial-congressional complex, among other enormities.  Our federal government is so remote from the people that it has managed to rack up debts (including unfunded liabilities) well in excess of $100 trillion.  In light of this record, what intellectual and moral pygmy would urge nationalism or the centralized modern state as the solution to our problems?”

“Nullification would be chaotic.”

It is far more likely that states will be too timid to employ nullification.  But the more significant point is this: if the various states should have different policies, so what?  That is precisely what the United States was supposed to look like.  As usual, alleged supporters of “diversity” are the ones who most insist on national uniformity.  It says quite a bit about what people are learning in school that they are terrified at the prospect that their country might actually be organized the way Americans were originally assured it would be.  Local self-government was what the American Revolution was fought over, yet we’re told this very principle, and the defense mechanisms necessary to preserve it, are unthinkable.

Part of the reason the idea of nullification elicits such a visceral response from establishment opinion is that most people have unthinkingly absorbed the logic of the modern state, whereby a single, irresistible authority issuing infallible commands is the only way society can be organized.  Most people do not subject their unstated assumptions to close scrutiny, particularly since the more deeply embedded the assumption, the less people are aware it exists.  And it is this modern assumption, dating back to Thomas Hobbes, that – whether people realize it or not – lies at the root of nearly everyone’s political thought.  Not only is this assumption false, but (as I discuss in the book) the modern state to which it gave rise has been the most irresponsible and even lethal institution in history, racking up debts and carrying out atrocities that the decentralized polities that preceded them could scarcely have imagined.  Why it should be given the moral benefit of the doubt, to the point that all skeptics are to be viciously denounced, is unclear.

“The compact theory may apply to the first 13 states, but since all the other states were created by the federal government, we cannot describe these later states as building blocks of the Union in the same sense.”

The Idaho attorney general’s office tried making this argument against the Idaho health-care nullification bill.  Superficially plausible, the argument amounts to a gross misunderstanding of the American system.  Were the Idaho attorney general correct, American states would not be states at all but provinces.

The argument of the Idaho attorney general’s office, in fact, amounts to precisely the Old World view of the nature of the state and the people that Americans fled Europe to escape. The American position has always been that an American state is created by the people, not the federal government. Jefferson himself amplified this point in the controversy over the admission of Missouri. The people of Missouri had drafted a constitution and were applying for admission to the Union. Were they not admitted, Jefferson told them, they would be an independent state. In other words, their statehood derived from their sovereign people and its drafting of a constitution, not the approval of the federal government.

“The Civil War settled this.”

The Civil War was not fought over nullification, and as I’ve said above, at the time of the war it was the northern states that had much more recently been engaged in nullification.  The legitimacy of nullification involves a philosophical argument, and philosophical arguments are not – at least to reasonable people – decided one way or the other by violence.  No one would say, when confronted with the plight of the Plains Indians, “Didn’t the U.S. Army settle that?”  If the arguments for nullification make sense, and they do, that is what matters.  Reality is what it is.  The compact theory, from which nullification is derived, does describe U.S. history.  There is no way to evade that brute fact.

My primary intention in writing Nullification was to rescuscitate portions of American history which, having proven inconvenient to the regime in Washington, had slipped down the Orwellian memory hole.  I wanted Americans to realize that illustrious figures from their country’s past posed questions about the most desirable form of political organization – questions that today one is written out of polite society for asking.  I wanted to make a case, backed by overwhelming historical evidence, that the inhumane system whereby a single city hands down infallible dictates to 309 million people is not a fated existence.  Jefferson and others proposed an alternative, one we might wish to revisit in light of how obviously dysfunctional the present system has become.  Before this information can be put to much immediate use there is a good deal of educational groundwork to be laid.  I intended the book to be a first step along the road back to sanity.

Old-style, “small-is-beautiful” progressives would have sympathized with this view, as New Left historian William Appleman Williams did.  The commissars of approved opinion who pass as “progressives” today cannot even take the trouble to understand it.

Thomas E. Woods, Jr. [send him mail] holds a bachelor’s degree in history from Harvard and his master’s, M.Phil., and Ph.D. from Columbia University. He is the author of eleven books, including the recently-released Nullification: How to Resist Federal Tyranny in the 21st Century, and the New York Times bestsellers Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse, and The Politically Incorrect Guide to American History. Visit his website and blog, follow him on Twitter and Facebook, and subscribe to his YouTube Channel.

The Tenth Amendment Center’s announcement of its January 10-11, 2011 fund-raising money bomb effort garnered a fair number of comments.   I want to briefly address some issues.

First, let me disclaim that I am not associated in any official capacity for TAC.  Even if it has a payroll, I am not on it.   I have no financial interest in TAC whatsoever.  My interest is purely intangible.

Is donating to TAC futile?   Well, at least one person thinks so, and I will bet many more believe the same way when it comes time to make a decision as to whether to “pony-up.”  Below was probably one of the best comments to support this view, which I have left exactly as written:

WRONG! This is what we have been brainwashed to do. Throw money at something and EXPECT RESULTS. IT NEVER HAPPENS! This organizations is no different. Did you stop the Health care Bill? S510? NO, YOU AND YOUR ORGANIZATION DID NOT AND IT WON’T! Have you stopped TSA and that violation of our 4th amendment rights? NO, YOU HAVE NOT! How’s that Parental Rights Amendment going? Not a snows balls chance in hell of making it and if it does they will just fly over, go under, go around, parachute in. backroom deals, pass it off to DHS, EPA, CIA, CFR or what ever else it takes to make it happen. NO, because the bottom line is all you are selling is false hope too, and making a buck! If you are not part of the solution, you are part of THE PROBLEM!! How the hell do you think we can compete with George Soros’s money or David Rockefeller’s, Bill Gates, the Bush’s or a multitude of the rest of them? An idiot can do the math and know this organization can’t do squat but make a buck in the process. This is Glenn Beck style of helping “we the people”. More to point, help your self to our pockets just like the rest of them!!!!!!!! Anybody who researches can see this freight train is way too out of control to stop it!!!!! Get George Soros to fund you. We the people are finally figuring it out. We will have to help ourselves!!

Well, I must admit that the writer is probably correct that “[a]nybody who researches can see this freight train is way too out of control to stop it!!!!!”  This clearly seems to be the road down which we are headed.

But the issue not raised is what ultimately happens to an out-of-control freight train.   It crashes!   This is the process we are witnessing.  The federal government, and for that matter, many state and municipal governments, are in a world of hurt that has been decades in the making.  There is a reasonable likelihood that it could all crash in the not too distant future.   Just the other day in a 60-Minutes interview, Governor Chris Christie and financial analyst, Meredith Whitney, among other noted officials, spoke candidly about the dire straits in which our various governments find themselves.

These are real problems.   Whitney predicts it is probable that 50-100 large municipalities will go into default within the next 12 months.  What happens when the money runs out?   Can our governments raise taxes on broke citizens?   Not likely.   So, what will happen to major infrastructure?   Our water supplies, wastewater systems, road maintenance, etc.?   Once vital services cease, there will be hell to pay.   Communities cannot function effectively and profitably if constituents need to devote large segments of their days bringing home buckets of water, dumping buckets of sewage, etc.   Who would have time to worry about interviewing for jobs when the family needs water and when something needs to be done with the mountain of sewage backing-up?

Hopefully, conditions will not drop to these lows, and maybe the Fed can inflate us out of our misery.   But if inflation is not the cure, then, we need to brace ourselves for some tough times.   When governments fail like that, times become fertile for the rise of new powers.   There is literally no telling what kind of government, if any, might replace our federal government, or conversely, whether our federal government might replace our state and municipal governments.

In times like these, it is important to educate people.   Perhaps we are beyond hope of avoiding collapse, but on the other hand, perhaps something can be done to avoid collapse.   Either way, many people seem to concur that a major restructuring of our governmental systems will be necessary.   Some think the correct direction is to deflate government payrolls and cut benefits.   While this appears laudable on its face, we need to ask ourselves how it is that we can grow back our economy by making millions of people poorer.   This is a real quagmire, regardless of how you feel about government.  The reality is that if we take steps to make millions of people poorer, we can forget about economic growth; we will be facing a depression.

As the debate grows over what to do, more people need to understand the plight that led our founders to revolution.   Were our founders avoiding communism?   Hardly.   Their plight was a feudal aristocracy.   Note how one of the first measures our founders undertook was to repeal titles of nobility?    This ought to be a clue that the nobles of the time were the source of oppression.   Not communists.  Not socialists.  Nobles.

Is there a growing probability we are headed in a reverse course and back into the sort of system our founders overthrew?   Well, when corporate America is realizing record profits at a time of record unemployment, maybe we are.

As the commenter above stated,  “How the hell do you think we can compete with George Soros’s money or David Rockefeller’s, Bill Gates, the Bush’s or a multitude of the rest of them?”  Sadly (or fortunately) the writer understands government better than most Americans.   The government is not an intermediary of the power elite.   The government is the power elite.

Perhaps without a dime in donations to TAC or anyone else, our presently corrupt system will collapse from its own weight.   But who will pay?   The power elite own most of the nation’s debts.   They control the military and the police.  Will they simply write off their treasury bond holdings?   Or will they insist on squeezing every last ounce out of the working class to raise taxes for their demands of repayment, despite the fact that the middle class is facing serious struggles?

My concern is that we might end up like Mexico.   There, the oppressed just take it.   You are either rich or poor.   They know nothing of domestic opportunity.   I have wondered why it has been so long since Mexicans have uprisen into revolution.   Why do they take it?  Is it because they, like the commenter above, feel that all is lost?   Is their attitude, “We should give thanks just to be alive?”  My guess is that it probably is.  When one has never enjoyed the fruits of prosperity, one hardly misses the taste.   Thus, they stick to their basic grains and give thanks for it.

As it stands here in the U.S., this generation has seen at least a fair illusion of opportunity.   Much of that illusion was based on deficit spending, liars’ loans and credit cards, but at least we saw it.   My hope is that we do not collapse into a point where our expectations adjust and we just learn to take it, like most other citizens of third-world countries.

I say, “To hell with that!”  This is not a time to pronounce defeat.   This is a time to muster forces.   Of the 308 million of us, at least 307 million are not among the power elite who are corrupting our social structure and leaving the vast majority of Americans at risk of collapse.  The numbers are clearly on our side, as has been the case in every successful revolution (whether peaceful or violent).

In every society worth its salt, people must specialize.   We cannot individually prosper while having to simultaneously grow our own food, sew our own clothes and supply our own water.  Instead, a few grow a lot of food for many.   A few sew a lot of clothes for many.   In the case of politics and governing, alas, a few must serve the political interests of many.   While I might have some time here and there to “spread the word” and participate in some events, I find myself fairly beholden to my day job.   I am sure most all of us do.

This is where foundations like TAC become important.   Somebody needs to carry our message.   Without our message, we are voiceless.   What TAC does is extremely valuable.   Google TAC and see for yourselves all the press it has received from very prominent media sources.   This exposure is important.

In the end, if our regime falls (and it isn’t looking too good right now), I want it to fall at a point when people are like-minded, can stand united in their recognition of what ails us and can stand united to repave a new age of opportunity for everyone, instead of spoils for the few.  In short, if you cannot oppress your oppressors, you will be oppressed.   Welcome to politics!  Let’s push hard and make this happen.

Jeff Matthews [send him email] is a practicing attorney in Houston. He graduated from the University of Texas, School of Law in 1993 and was licensed that year.

Copyright © 2010 by TenthAmendmentCenter.com. Permission to reprint in whole or in part is gladly granted, provided full credit to the author and this website is given.

People ask me all the time to explain nullification.  You hear people go off on historical events about the Fugitive Slave Law, Tariffs of 1828, and other items that mean absolutely nothing to the average person today.  Others still will tell you that nullification is an act of racism, since Martin Luther King, Jr. (the greatest American of the 20th Century in my opinion) put it in his great speech, “I Have a Dream.” 

Let me cut through all of this historical rubbish and explain nullification to the common man.  Nullification is simple, it is a state telling the federal government no!  Many of you are aware that the federal government (in Washington D.C.) and the state government (in Austin) are separate governments.  The federal government is in charge of certain things, while the state is in charge of other things.  When this balance of power is called into question many things can happen. 

Think about our two major governments as a marriage.  The federal government is one spouse the state is the other spouse.  When a spouse crosses a line many things can happen.  The other spouse may simply tell them to stop, explain what they did so they will understand the line they crossed better.  The other spouse can be hurt and bitter causing a fight.  The other spouse can file for divorce, and just walk away. 

The marriage analogy is easy to understand, any relationship has its struggles.  The choices that are made define the relationship.  So let’s bring it back to politics.  The federal government does something that is out of line (Obamacare).  The state can react in many ways.  The state can tell them what they did was bad and wrong, fight them, or leave them.  Nullification is the act of telling the federal government what they did was wrong, that the law does not apply to the state, and the federal government ought to now better understand the line that is drawn between the state and federal government.  

When you look at the relationship between federal and state government as a relationship between people, you see that nullification is the sensible option to use first in disagreements.  So now that we see that nullification is a sensible option, how does it work?

Nullification is just telling them no.  The state does this by telling them no in as many possible ways to make sure that they get the message.  Here is how Texas ought to do this with Obamacare.  (I want to point out that we have to take this one issue at a time, there is no fix all, other than taking back the federal government and making them stop passing so many bad laws.)

First, Texas is to sue the federal government for their overreach.  This is being done as we speak, and no major set backs have occurred.

Second, Texas should pass a state law that forbids the carrying out of Obamacare.  That has been filed, HB 297.

Third, Texas should amend the State Constitution to state that the federal government cannot control the healthcare in Texas.  That is yet to be done.

Fourth, Texas should pass a Healthcare Freedom Act, and I have seen several of those floating around and I am sure that this measure will be done.

With all of those actions Texas can nullify Obamacare, and send a message to the federal government that enough is enough.  It takes all four to send this message, anything less and we could be sending a mixed message back to our spouse in Washington. 

Be sure to join the Texas Tenth Amendment Center on January 29th, at the Texas State Capital, as we will sending a message to the Texas Government that they better act!  We are tired of the talk, and we need our state government to stand up and act on our behalf!

John Stacy [send him email] is the Outreach Director for the Texas Tenth Amendment Center. He is also the founder of the Alliance of Texans Against Government Controlled Healthcare.