Virginia and Idaho: Asserting the Tenth Amendment

Latest post from The Tenth Amendment Blog:



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Nullification gets fair treatment in local Idaho media:

State's Rights: Did States created after the Constitution have the same rights and legal status?

From an letter to the editor/comment in the Montgomery AL Advisor

"On the 150th anniversary of secession, the question of its legality becomes a matter of interest again. In my opinion as a historian, of the states that declared secession, only Virginia, North Carolina, South Carolina, Georgia, and Texas have a case, because of all the Confederate states, only those five were independent before they joined the Union.

Since they voluntarily joined the Union, perhaps they could voluntarily also leave the Union. All of the other Confederate states, including Alabama, Mississippi, Tennessee, Florida, Arkansas and Louisiana, were not independent before they joined the Union.

They were federal territories before they were states. Having been created out of federal territory, they had less legal right to secede from the Union that created them. Most of the states that declared secession in 1860-1861 did not have the legal right to do so."

Daniel L. Haulman
Montgomery

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I disagree.  The fault in the thinking is assuming that the word "federal" in "federal territory" means "national" or common to all.  The United States was not a singular national political entity until after 1865, and only became so through force of arms.  

By the Constitution, the states that founded the Union set the process by which new states could be created and admitted to the Union.  Those territories were created by the legislative branch as authorized under Article IV, Section 3.  


Before Statehood, the territory must hold a referendum, demonstrating through popular sovereignty, that the joining with the Union is the will of a majority of inhabitants able to vote.    

Every state admitted to the Union held a ratification convention or held a referendum, and voluntarily joined the Union.  The later states became cosignatories to a preexisting contract between equal sovereign political entities.  


If the process is reversed, as in 1860-61, a state holds a people's convention to discuss secession, and if the eventual vote is for secession, then the people of that state, as sovereigns, voluntarily and peacefully withdraw from the Union.

The language of "perpetual" union in the Articles of Confederation, and "a more perfect" union in the Constitution is often cited by nationalists to indicate that the Union was permanent (and by implication, involuntary).  


"Perpetual" only means indefinite, or without any defined timeframe.  "Perpetual" and "more perfect Union" say nothing about voluntary or involuntary nature of the compact between states.

The whole national theory falls apart with a look at the text of the Constitution and its ratification.  Article VII of the Constitution only calls for 9 States to ratify the Constitution to create a new Union.  


Not all 13.   


If 9 ratify, only 9 join.  The other States are in no way obligated to join the Union.  Only 11 of the 13 states ratified the Constitution initially.  


North Carolina was an independent sovereign nation, that is, not one of the United States, between New York's ratification in July 1788, and North Carolina's ratification in November 1789.  The coexistence was peaceful.  There was no military strife.  There was no coercion from the neigboring "united" States.  


Rhode Island was likewise independent until May 1790.  


The timeline of the formation of the 13 State Union is today not clear to even those with a decent knowledge of history.  

The point?  A "nation" was not founded in 1788.  A "federation" of States was created.  Every state or territory voluntarily joined the Union.  Normative contract law, known to attorneys and legislators at local, state, and federal law, indicates that voluntary contracts and compacts between equal parties can be dissolved or changed by voluntary withdrawl by one of the parties (unless otherwise specified and agreed to by such party in the contract).


In Summary:

Each new state was equal in legal standing to the original ratifying states.  


Each State joined the Union voluntarily, through defined process.


No specific clause of the Constitution speaks to illegality of secession, only that the timeframe of the compact between states is indefinite.


The Constitution between the States is like a contract between legally equal entities.  


Therefore, normative English and American contract law allows secession of a State from the Union.


Quod erat demonstrandum.

Quote of the Day 2/5

He that would make his own liberty secure, must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.


Thomas Paine, Dissertation on First Principles of Government, December 23, 1791

Judge Vinson quotes Federalist No. 51 by Madison in Obamacare decision

'If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself."

Federal Judge Roger Vinson opens his decision declaring ObamaCare unconstitutional with that citation from Federalist No. 51, written by James Madison in 1788. His exhaustive and erudite opinion is an important moment for American liberty, and yesterday may well stand as the moment the political branches were obliged to return to the government of limited and enumerated powers that the framers envisioned.

As Judge Vinson took pains to emphasize, the case is not really about health care at all, or the wisdom—we would argue the destructiveness—of the newest entitlement. Rather, the Florida case goes to the core of the architecture of the American system, and whether there are any remaining limits on federal control. Judge Vinson's 78-page ruling in favor of 26 states and the National Federation of Independent Business, among others, is by far the best legal vindication to date of Constitutional principles that form the outer boundaries of federal power.

Wall Street Journal article here. 

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The federal government has passed constitutional red lines several times already in the history of this country.  We are teetering on the brink of no checks and balances between the three branches of the government.  This makes Judge Vinson's ruling, with so many references to original intent of the Framers, that much more heroic.  

He deserves our praise and gratitude,  as he is akin to a lonely voice in the wilderness.  From a practical point of view, unless we rise as a people as we have seen recently in other countries, nothing stands in the way of congressional, executive, or judicial tyranny, unfettered by Constituional limits.

Quote of the Day 2/3

"Sometimes the law defends plunder and participates in it. Thus the beneficiaries are spared the shame and danger that their acts would otherwise involve... 


But how is this legal plunder to be identified? Quite simply. 


See if the law takes from some persons what belongs to them and gives it to the other persons to whom it doesn't belong. See if the law benefits one citizen at the expense of another by doing what the citizen himself cannot do without committing a crime. 


Then abolish that law without delay ... No legal plunder; this is the principle of justice, peace, order, stability, harmony and logic."


-Frederic Bastiat

Hosni Mubarak feels the double edged sword of the Internet in Egypt

Any repressive regime is damned if they have the internet, and damned if they don't...

Egypt cuts off the Internet Service Provider Noor during the Revolution...too late...

"So why did Hosni Mubarak give up on the government’s total information blackout? The answer should be a lesson for other Internet-unfriendly regimes: 


In any modern country, argues Lucie Morillon, the head of the Internet desk for Reporters Without Borders, (RSF) keeping millions of people offline simply isn’t a sustainable approach to quelling dissent. “There are very few countries in the worlds that can be cut off from the world’s economy for this long,” she says.


...Ultimately Egypt faces the same problem as any repressive regime in the digital era, one that University of Maryland Sociology professor Zeynep Tufekci calls the “Dictator’s Dilemma.” 


As she summarizes it, 'If they allow Internet to spread within the country, it poses a threat to their regime. If they don’t, they are cut off from the world–economically and socially.'"


From Forbes magazine blog, read on.

Tor use in Egypt during the last week, latest from Tor Blog

Tor use in Egypt spikes at onset of revolution...

"We're glad that the Internet Service Providers in Egypt are announcing their routes to the world and have rejoined the Internet. We are concerned because it is possible that traffic crossing the Egyptian border is being recorded and possibly saved for future use. Correctly using Tor to and from Egyptian destinations will keep your traffic anonymous.
Tor separates who you are from where you are going on the Internet. It's up to you, the user, to choose where you share your personal information. Currently, we do not try very hard to hide that you are using Tor. In the past few years, we haven't needed to hide. Tor looks like an SSL connection on the wire. Your local ISP, if they are very clever, could map your current connections from your assigned IP address to the list of public Tor relays. This would only tell them you are using Tor, not where you are going on the Internet. We do offer bridge relays, which are semi-public relays published in a few selective ways. By using bridges, your ISP is unlikely to figure out you are using Tor. We need thousands more bridges, please join the Tor network to help others.
Many years ago, we theorized this arms race could happen. Recent events have turned theory into reality. We are working on improvements to make it much more difficult to detect Tor usage. These methods include normalization of our TLS usage and tunneling Tor through other protocols, such as XMPP, HTTPS, and HTTP.
Thanks to some funding from Avaaz, we've also begun experimenting with ways to make Tor perform better on satellite and mesh networks. We have Tor working well on mobile phone 3G and 4G connections. Tor over VSAT and BGAN connections does work, however it needs more research into how to better handle the variable latencies and varying available bandwidth on such connections. The improvements that result from this research will benefit those with little to no Internet access, whether due to political unrest, natural disasters, or remote locations, who nonetheless seek to keep their online activities safe."


From the Tor Project Blog

The right kind of "judicial activism" -- Judge Vinson's Obamacare decision

"For discussion's sake, let's just concede that every four years or so the American public is fooled into voting for a demagogue who's mastered a pleasant-sounding, market-tested populism. Let's then imagine -- this is for discussion only -- that this person's resulting agenda, cheery but mildly authoritarian, passes with public support.

Does the federal court system exist to rubber stamp legislation? Should they check in and see if it's cool with the public? Or do we have courts to decide the constitutionality of laws? Do we insulate judges from democracy for a reason? Do we have a Constitution to keep a check on government or to bend to the constant predilections of the electorate?

The White House's position is clear. When U.S. District Judge Roger Vinson ruled this week that Obamacare was unconstitutional -- due to its individual mandate -- the White House's first reaction was to call the ruling "out of the mainstream," as if it were remotely true or that it even mattered.

The decision, you may not be surprised to hear, is also a case of "judicial activism" and an "overreach.""

Nice analysis of the decision.

See also Karl Denninger's analysis of the White House reaction to the decision.

Quote of the Day 2/2

Federal District Judge Roger Vinson, from his decision to declare Obamacare unconstitutional:

"It would be a radical departure from existing case law to hold that Congress can regulate inactivity under the Commerce Clause. 


If it has the power to compelan otherwise passive individual into a commercial transaction with a third party merely by asserting — as was done in the Act — that compelling the actual transaction is itself “commercial and economic in nature, and substantially affects interstate commerce” [see Act § 1501(a)(1)], it is not hyperbolizing to suggest that Congress could do almost anything it wanted. 


It is difficult to imagine that a nation which began, at least in part, as the result of opposition to a British mandate giving the East India Company a monopoly and imposing a nominal tax on all tea sold in America would have set out to create a government with the power to force people to buy tea in the first place. 


If Congress can penalize a passive individual for failing to engage in commerce, the enumeration of powers in the Constitution would have been in vain for it would be “difficult to perceive any limitation on federal power”[Lopez, supra, 514 U.S. at 564], and we would have a Constitution in name only."

Archie Bunker on Gun Control

For all of you that are 40ish or older.  If you never saw the show, it was cutting edge for its time in the early 70's.

I laughed then.  Now the idea kinda makes sense to me...

I remembered this clip when I posted the article on the South Dakota bill to mandate gun ownership.

Intriguing law proposed for South Dakota; mandates purchase of firearms

 Quoted verbatim, article from Argusleader.com in Sioux Falls, SD, via Drudge.

"Five South Dakota lawmakers have introduced legislation that would require any adult 21 or older to buy a firearm “sufficient to provide for their ordinary self-defense.”

The bill, which would take effect Jan. 1, 2012, would give people six months to acquire a firearm after turning 21. The provision does not apply to people who are barred from owning a firearm.

Nor does the measure specify what type of firearm. Instead, residents would pick one “suitable to their temperament, physical capacity, and preference.”

The measure is known as an act “to provide for an individual mandate to adult citizens to provide for the self defense of themselves and others.”

Rep. Hal Wick, R-Sioux Falls, is sponsoring the bill and knows it will be killed. But he said he is introducing it to prove a point that the federal health care reform mandate passed last year is unconstitutional.

“Do I or the other cosponsors believe that the State of South Dakota can require citizens to buy firearms? Of course not. But at the same time, we do not believe the federal government can order every citizen to buy health insurance,” he said."

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Intriguing approach to demonstrate that the Obamacare mandate is unconstitutional.

I agree everyone should own a firearm.  Every person should invest in their own self defense.  Ultimately, each of us has a moral obligation to do so.

However, although I am a really strong believer in self defense, the 2nd Amendment, unlimited firearms ownership and safety training, etc., I am an equally strong believer that Federal and State authorities cannot infringe on individual Liberty by mandating anything.

Better that South Dakota should completely remove local gun ownership restrictions, and nullify the Federal firearms acts, than to propose a dog and pony show bill as an intellectual exercise.

Truth will out...quote of the day with comment, 2/1

From Shakespeare's The Merchant of Venice, 1596:

LAUNCELOT: Nay, indeed, if you had your eyes, you might fail of
the knowing me: it is a wise father that knows his
own child. Well, old man, I will tell you news of
your son: give me your blessing: truth will come
to light; murder cannot be hid long; a man's son
may, but at the length truth will out.

...the original quote from which we get the expression "Truth will out".


Whether it is a site like lewrockwell.com or mises.org showing that Statism and Keynesianism are among the worst current enemies of Liberty and Prosperity, 
Wikileaks showing the Emperor has no clothes,
Mike V. and David Codrea getting the word out on the ATF's malfeasance in the Project Gunwalker case (and many other ATF transgressions),
The "Twitter" revolutions in Tunisia and Egypt,


...the internet has become the single most important tool in the ongoing struggle between individual liberty and government power.


When any government declares it's ability to "shut down" the internet, and creates legislative rationalization for doing so, it has crossed a red line. 


Any legislation against internet freedom is an Intolerable Act.

Major blog driven victory for Mike Vanderboegh and David Codrea

Truth will out...

"That there will be ATF oversight hearings -- dealing with not only the death of Brian Terry and the Project Gunwalker scandal but with the whole panoply of ATF scandals mentioned in these pages over the past two years -- is said to be a bet-the-farm certainty."


There is so much more in Mike Vanderboegh's latest post at Sipsey Street Irregulars.

A must read.

Ranking Senator of Judiciary Committee calls ATF to heel in Gunwalker scandal

Mike V at Sipsey Street has the exclusive, which I happily propogate...

Praise is due to Senator Grassley for taking the bull by the horns.

Great news out of Florida! Obamacare mandate ruled unconstitutional!

Pesky Constitution! Always getting in the way of "progress"

"U.S. District Judge Roger Vinson, appointed to the bench by President Ronald Reagan in 1983, ruled that the reform law's so-called "individual mandate" went too far in requiring that Americans start buying health insurance in 2014 or pay a penalty.
"Because the individual mandate is unconstitutional and not severable, the entire act must be declared void. This has been a difficult decision to reach, and I am aware that it will have indeterminable implications," Vinson wrote.
He was referring to a key provision in the Patient Protection and Affordable Care Act and sided with governors and attorneys general from 26 U.S. states, almost all of whom are Republicans, in declaring it unconstitutional. The issue will likely end up at the Supreme Court."

Reuters article.

FBI appears to run interference for ATF, redirects traffic from Mexican newspaper

From Codrea's latest at National Gun Rights Examiner...

Big Brother is watching you

"Wanting to read the original Spanish-language version of the page, I attempted to directly access

http://www.eldiariodechihuahua.com/notas.php

without all the fancy hoopla that came after it, figuring it was probably not needed, or if it was, I could just walk my way down to the article. Imagine my surprise when I was IMMEDIATELY redirected to a page about cyber-crime at www.fbi.gov.

Why would a Mexican newspaper redirect any of its links to the FBI?"

"There's only one reason I can see for a site to redirect a "not found" URL to the FBI... and that's if it's an FBI site to begin with.
It's more reasonable to assume a mistake or habit by an FBI coder in directing the "404" processing to a common page he's used to using than it is to assume that a Mexican newspaper is trying to frighten potential hackers with a bogeyman that has absolutely no jurisdiction in the newspaper's territory (or probably the hackers' either).
Is it reasonable for a Mexican website to use name servers in Pennsylvania?"

Curiouser and curiouser...Stay tuned.

Tea Party: The tail begins to wag the dog

"Remember that Constitution-citing "tea party" rabble that puzzled the media so terribly last year and helped dump so many deaf Democrats from the House of Representatives in November?

Turns out, an overwhelming percentage of adult Americans think Republicans should take heed of the upstart movement's positions and concerns as they plot to dump President Obama and even more Democrats come the 2012 election, now just 645 days away.

A new Gallup Poll out this morning finds that 71% of Americans, even many who do not think highly of the "tea party," say it's important that Republicans should take the its positions into account.

Gallup appears puzzled by its findings: While only 6% of Democrats call themselves "tea party" supporters and only 11% hold a favorable view of it, more than half of Democrats still....

... think it's important the GOP work the movement's views into Republican programs. Perhaps some hope the tea party will help weaken the GOP, despite increasing support for the tea party's fiscal conservatism as deficit fears mount.

Among Republicans, not surprisingly, 88% say including the tea party is at least somewhat important, while a majority (53%) say it's very important."

via Los Angeles Times

Quote of the Day 1/31

Be careful with the government, for they befriend a person only for their own needs. They appear to be friends when it is beneficial to them, but they do not stand by a person at the time of his distress.


Ethics of the Fathers 2:3

Fourth largest Mexican newspaper picks up Project Gunwalker story

From El Diario de El Paso, circulation 100,000:

"Contrary to its policy to stop it, America is allowing the smuggling of firearms into Mexico intentionally during [its] conducted investigations, and without the neighboring country knowing it.

This is one of the allegations that has emerged recently at an internet forum run by employees of the Bureau of Alcohol, Tobacco, and Firearms and Explosives, who are unhappy with irregularities which have allegedly occurred in the federal agency.

The CleanUpATF.org blog has anonymously reported that the ATF supposedly gave a 'green light' to U.S. gun dealers to sell weapons to suspects until the officers "inflated" statistics of seizures of weapons to justify the millions of dollars allocated to the federal agency.

ATF officials in Washington, D. C. completely rejected the allegations, and declined to comment on the blog."


The rest of story here, in spanish.  (My best attempt at cleaning up the lousy google translation of spanish to english...)


Via Sipsey Street Irregulars

Open Letter to Daniel Hannan: You are very wrong on Abraham Lincoln

Dear Daniel:

I have been a follower of yours for some time, since your EU speech to Gordon Brown went viral on YouTube.

 

I love reading your blog on blogs.telegraph.co.uk, and I subscribe to your youtube channel.  You are an excellent speaker, and Americans who are familiar with your speeches yearn for an American speaker of your eloquence.  If only Ron Paul could speak off the cuff as you are able, how far he could have advanced the cause of fiscal responsibility, free market Austrian economic theory, the need to return to sound money.  

In your recent blogpost, you rate Abraham Lincoln as the #2 all time greatest president.  After the rating of Abraham Lincoln as the 2nd best all time president, you link to a 2008 article you wrote with the words "here's why ".  These posts represent the first time that I have come across what is to me a glaring error in something you've written.  

To wit:

"Nor was he above a little authoritarianism, suspending habeas corpus and introducing his country to income tax and to the draft.

But for all this, he was a man of outstanding patriotism and moral sense. And, as Marx noted, a good man: as generous and unstuffy and expansive and ambitious as the country he led. If Lincoln is the leader Obama would like to be, America is happy indeed in her choice."

I could not disagree with you more.  

"...a little authoritarianism" is a gross understatement of the facts.  Tens of thousands of Lincoln's political opponents were jailed, opposition newspapers were shut down by the hundreds, telegraph communication was censored, elections are rigged, and new states are created illegally to add to the incumbent government's electoral college vote count.  Lincoln had pro Confederate Maryland State Legislators arrested by Federal troops and Baltimore Police in the summer of 1861, in order to stifle any further debate on the possibility of Maryland's secession from the Union. 

By the way, who the hell cares about what Karl Marx thought about Lincoln?  If Marx thought Lincoln was a "good man", already you should be on your guard as to what that might mean, considering Mr. Marx's unlovely legacy.

With regard to Lincoln's "moral sense", do you intimate that he wished to abolish slavery?  Lincoln orchestrated passage of the Corwin Amendment to the Constitution, which would have formally and explicitly enshrined slavery in the U.S. Constitution by prohibiting the government from ever interfering with Southern slavery. This amendment passed the Senate and the House just days before Lincoln was inaugurated. In his first inaugural address he said he believed slavery was already constitutional and then, alluding to the Corwin Amendment, said: "I have no objection to it [slavery protection] being made express and irrevocable" in the Constitution. This was by far the strongest defense of slavery ever made by an American politician, coming from the president himself. 

Do you intimate by his "moral sense" that he was performing his duty as commander in chief of the US armed forces by ordering 75000 volunteers to put down the rebellion in the south?  At Fort Sumter, the precipitating event, no US forces were injured or killed.  The sovereign State of South Carolina had already withdrawn from the Union by reversing the process it had followed in 1787:  it held a State convention, and formally and legally withdrew from the United States.  It was therefore not legally in rebellion (not a group within a state, but the state itself), and as citizens of another country at the time of Fort Sumter, were not committing treason as defined under the US constitution.


Mr. Hannan, if you think these aspects of Lincoln's administration are something to be admired, methinks you are way too enamored of state power to consider yourself a libertarian.   

I surely do not understand what you were thinking when you wrote the post linking Obama to Lincoln in such a positive light.  


Why, in January of 2011, when you know what we now know about President Obama's policies, would you link to a December 2008 post on Obama, in which you were a little drunk on the media euphoria surrounding Obama's election, in light of what you now know about Obama and his government?

There are similarities between the two men, I will grant you.  Under Obama, as under Lincoln, there is expansion of empire, support for mercantilist (now called corporatist) policy of government favoring certain private businesses or institutions, expansion of the power of the executive, and for both men there is also a tradition of personality worship (although Lincoln's was primarily post-mortem).  Both practice(d) citizen detention and killing without due process.  Lincoln and Obama are excused, of course, because of the exigencies of war.  

An unfortunate fact for both Lincoln and Obama is that this country was founded to be a constitutional republic.  The American people still recall this fact.  The rhetoric of the country's founding was never eliminated by the state;  the truths of the rhetoric of Reason and Liberty are the seeds of the destruction of the Leviathan State, as they were the seeds of destruction of the rule of George III.


In a constitutional republic, as established in the late 18th Century in this country, the citizens were to be sovereign. There was to be no encroachment by the federal government on specific citizen's rights.  Lincoln's war to "preserve the Union" turned the idea of limited government and popular sovereignty upside down.

Lincoln's idol was erected by the victors of the War Between the States, and polished by subsequent generations of court historians.  It is no accident that the Lincoln memorial is akin to a religious edifice, and that his likeness is literally larger than life.  

The winners of the War to Prevent Southern Independence needed to supplant Washington and Jefferson, both Southerners, who helped established the United States as a confederation of independent sovereign states, with Lincoln, who through war, destroyed the old voluntary Republic of independent states, and created a nation.  

Because Lincoln conquered the Southern States and reincorporated them in to the "Union" involuntarily, he forever destroyed the idea that government derived it's "just powers from the consent of the governed."  This truth makes his famous Gettysburg address closing statement that the government "of the People, by the People, and for the People shall not perish from this earth," wholly ironic.


Daniel, as an MEP (member of European Parliament), you frequently write about the suspension of democracy (for the constituent states of the EU federation), arbitrary and autocratic rule of an oligarchical leadership in Brussels, not elected by democratic process.  Is not the developing situation in Brussels constitutionally similar to the United States in 1860-1861? Both situations represent a conflict between an expansionist "National" government,  threatening the sovereignty of constituent states.  

The United States of America is a nation that is now running roughshod over the world, fighting preemptive wars. Our government has created webs of entangling alliances with various and sundry countries.  It extorts favorable trade agreements whenever possible, exploiting the fact that it (until recently) been the sole world superpower.   


The current US government is the grown up version, run amok, of the enfant terrible that Lincoln and his supporters spawned in 1865.


The modern government of the United States has made a mockery of George Washington's farewell address, and Thomas Jefferson's first inaugural address.  

Is this something to be admired?  


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Some phrases and points of information in this post are acknowledged to works of Tom DiLorenzo.