Liberties of the People and Powers of Government
11. Jun, 2009 
14 Comments
by Jacob Hornberger, Future of Freedom Foundation
The most radical experiment in history is the Constitution of the United States of America. Throughout history, people had accepted the commonly held notion that government’s powers over the citizenry were supreme. In 1787, however, for the first time ever, the American people announced to the world that the liberties of the people were supreme and that the powers of government were limited. Governments throughout the world were startled, stunned, and appalled at such an audacious suggestion.
To understand fully the thinking that formed the Constitution, however, it is necessary to go back 11 years — to the Declaration of Independence, which Thomas Jefferson wrote in 1776. The revolutionary nature of the thoughts expressed in that document would later be reflected in the Constitution.
Keep in mind that prior to July 4, 1776, there was no United States of America and there were no Americans. The people living in New York, Massachusetts, Virginia, and the other colonies in the New World were Englishmen. The British government was their government, just as the U.S. government today is the government of the American people. These were British citizens living abroad on lands under the jurisdiction of the English crown. In other words, men such as George Washington, Thomas Jefferson, Ben Franklin, and Samuel Adams were as British as you and I are American.
Thus, on July 4, 1776, in the eyes of their own government officials, those men were not heroes. By taking up arms against their own government officials and waging war against British soldiers, the Founding Fathers were traitors to their own government. If the revolution had failed, they would have been hanged.
To catch a glimpse of what the revolutionaries faced, imagine today that one-third of the American people, fed up with high taxes, excessive regulations, arbitrary confiscations of property, and unjust killings of citizens, took up arms against their own government and began ambushing and killing U.S. troops. How many federal government officials would view these revolutionaries as heroes? How many would suggest that statues and monuments be built in their honor?
The government would do whatever was necessary to smash the insurrection and the names of the insurrectionists would be remembered, if at all, in shame in every history book in every public school across America. But if the revolutionaries won, the monuments and statues would be erected, and they would go down in history as great heroes.
Not all the British colonists took up arms and tried to kill their own governmental officials. It has been estimated that one-third joined the revolution, one-third sided with their government, and one-third stayed neutral during the war. But the only reason that the Founding Fathers are as revered as they are is that they ultimately won the military battles against the troops of their own government. They are patriots, not traitors, because they were victorious.
The revolutionary nature of what happened on July 4, however, was not the courage that our Founding Fathers displayed in taking on what was arguably the most powerful government on earth. Instead, the real revolution was reflected by the ideas that Jefferson expressed in the Declaration of Independence. It has been said that as far as the colonists were concerned, Jefferson did not express anything new or novel but rather the widely held sentiments of the populace.
The origin of rights
Throughout history, people believed that their rights came from government. The king had the power to conscript them and send them into war to fight for him and his government, even in faraway lands. The king had the power to confiscate their property and holdings. The king had the power to arrest and incarcerate them. Sometimes a king was kind and other times not. But everyone accepted the notion that the king could do with him as he wished. After all, he was the king, and they were his subjects.
In one fell swoop, Jefferson and the English colonists rejected that long-held notion. Jefferson said that rights preexist government and that government was simply a servant whose purpose was the protection of those preexisting rights.
This was a revolutionary notion and not one with which kings and governments would be enamored.
Where do the people’s rights come from? Jefferson said that they come from man’s Creator. In other words, my life was not created by government. It came into existence independent of government. I don’t have to be beholden or thankful to government for the fact that I exist.
As Jefferson pointed out, life is indeed one of these preexisting rights of man. Others include liberty and the pursuit of happiness. By using the word “among,” Jefferson was indicating that man’s fundamental rights were not limited to “life, liberty, and the pursuit of happiness” but included others as well. He had taken the phrase from the English philosopher John Locke, who had described “life, liberty, and property” as fundamental, God-given rights.
But what do they mean? They mean that your life is your life. You were born with certain talents, abilities, handicaps, and disabilities. As Roger Williams pointed out many years ago in his remarkable book, You Are Extraordinary, everything about you is different from everybody else. Not just fingeprints. Also hair texture, skin color, voice, personality, face, and figure. Even the shape of your kidneys is different from everyone else’s.
You use your talents as a way to sustain your life. If you are a person with farming abilities, you grow food that you can eat. But if you are a person with singing talents, you don’t grow your food; instead you sing in return for pay and use the proceeds to buy excess food from the farmer.
Thus, liberty entails the right to live your life the way you choose (as long as your conduct is peaceful), the right to use your talents and abilities to engage in enterprise freely (“free enterprise”), the right to engage in mutually beneficial trades with others (“freedom of trade”), and the right to accumulate the fruits of those trades (“property”).
Do kings or other government officials have the right to regulate or control these activities? Under what moral authority? These are fundamental rights that preexist kings or governments. Governmental officials have no more right to regulate or control these activities than they have to control how many children a family is to have.
Why government?
So, why do we need government then? Why not simply do away with kings, princes, princesses, presidents, parliaments, congresses, bureaucracies, and the like? (Stop cheering!) Because as Jefferson points out in the Declaration, governments are necessary to secure the exercise of the fundamental rights of man.
Secure it from what? From violent, anti-social people who would deny other people their rights to live their lives as they choose. In other words, suppose there is a society of peaceful people, all of whom are engaging in free enterprise, entering into trades with one another, and accumulating wealth. Standards of living are slowly increasing for everyone in society. So far, no problems.
But all of a sudden, along comes a person who murders someone and steals his property. How does society protect itself from the murderers, rapists, robbers, trespassers, and other violent people? Government is instituted for the primary purpose of protecting people from those who would initiate force against others.
What happens, however, if government itself becomes more destructive than what the situation would be in the absence of government? In other words, let’s say that in the absence of government, thieves would steal about 10 percent of people’s property and murderers would kill 1 percent of the populace. What happens if a corrupt element takes control over the reins of government and uses governmental force to steal 40 percent of people’s property and kill 2 percent of the populace?
Jefferson provided the answer to this problem in the Declaration of Independence. He said that when this happens, it is the right of people to alter or abolish their government, even if force is necessary, and institute new government designed to protect, not destroy, the preexisting rights of the people.
Here are the exact words that Thomas Jefferson used to express these revolutionary thoughts in the Declaration of Independence:
We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness — That to secure these Rights, Governments are instituted among Men, deriving their just Powers from the Consent of the Governed, that whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.
Eleven years later, after the Revolution had been won by the colonists, the revolutionary principles expressed in the Declaration of Independence were the backdrop for the formation of the most radical political experiment in history — the Constitution of the United States of America.
Jacob Hornberger [send him mail] is founder and president of The Future of Freedom Foundation.
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Great article. Makes me think of one of my favorite quotes:
“Government is a broker in pillage, and every election is a sort of advance auction in stolen goods.”
–HL Mencken
There was a poem was written by Martin Niemoeller in 1946. It has been varied over the years to apply to different causes … but the original message carries a powerful moral impact;
First they came for the communists, and I did not speak out–
because I was not a communist;
Then they came for the socialists, and I did not speak out–
because I was not a socialist;
Then they came for the trade unionists, and I did not speak out–
because I was not a trade unionist;
Then they came for the Jews, and I did not speak out–
because I was not a Jew;
Then they came for me–
and there was no one left to speak out for me.
I discovered that it appeared in a book written in 1955 by American journalist Milton Meyers -
They Thought They Were Free.
Well this really peaked my curiosity – and being retired, old, and with a lot of time to kill …. the searching continued.
I found two lengthy excerpts to this book, which is still in publication (considering the conditions here in this country today I am surprised that it isn’t being trumpeted on talk shows such as Rush Limbaugh’s or Glenn Beck’s, or Shawn Hannity’s – to mention three.
While I risk stating the obvious to anyone who has read it – here are two major excerpts – one is form the University of Chicago Press’ website …
http://www.press.uchicago.edu/Misc/Chicago/511928.html
Meyer’s book ( based on interviews he’d conducted in Germany several years earlier) is more chilling than any Steven King Novel.
Here is the excerpt …
But Then It Was Too Late
“What no one seemed to notice,” said a colleague of mine, a philologist, “was the ever widening gap, after 1933, between the government and the people. Just think how very wide this gap was to begin with, here in Germany. And it became always wider. You know, it doesn’t make people close to their government to be told that this is a people’s government, a true democracy, or to be enrolled in civilian defense, or even to vote. All this has little, really nothing, to do with knowing one is governing.
“What happened here was the gradual habituation of the people, little by little, to being governed by surprise; to receiving decisions deliberated in secret; to believing that the situation was so complicated that the government had to act on information which the people could not understand, or so dangerous that, even if the people could not understand it, it could not be released because of national security. And their sense of identification with Hitler, their trust in him, made it easier to widen this gap and reassured those who would otherwise have worried about it.
“This separation of government from people, this widening of the gap, took place so gradually and so insensibly, each step disguised (perhaps not even intentionally) as a temporary emergency measure or associated with true patriotic allegiance or with real social purposes. And all the crises and reforms (real reforms, too) so occupied the people that they did not see the slow motion underneath, of the whole process of government growing remoter and remoter.
“You will understand me when I say that my Middle High German was my life. It was all I cared about. I was a scholar, a specialist. Then, suddenly, I was plunged into all the new activity, as the university was drawn into the new situation; meetings, conferences, interviews, ceremonies, and, above all, papers to be filled out, reports, bibliographies, lists, questionnaires. And on top of that were the demands in the community, the things in which one had to, was ‘expected to’ participate that had not been there or had not been important before. It was all rigmarole, of course, but it consumed all one’s energies, coming on top of the work one really wanted to do. You can see how easy it was, then, not to think about fundamental things. One had no time.”
“Those,” I said, “are the words of my friend the baker. ‘One had no time to think. There was so much going on.’”
“Your friend the baker was right,” said my colleague. “The dictatorship, and the whole process of its coming into being, was above all diverting. It provided an excuse not to think for people who did not want to think anyway. I do not speak of your ‘little men,’ your baker and so on; I speak of my colleagues and myself, learned men, mind you. Most of us did not want to think about fundamental things and never had. There was no need to. Nazism gave us some dreadful, fundamental things to think about—we were decent people—and kept us so busy with continuous changes and ‘crises’ and so fascinated, yes, fascinated, by the machinations of the ‘national enemies,’ without and within, that we had no time to think about these dreadful things that were growing, little by little, all around us. Unconsciously, I suppose, we were grateful. Who wants to think?
“To live in this process is absolutely not to be able to notice it—please try to believe me—unless one has a much greater degree of political awareness, acuity, than most of us had ever had occasion to develop. Each step was so small, so inconsequential, so well explained or, on occasion, ‘regretted,’ that, unless one were detached from the whole process from the beginning, unless one understood what the whole thing was in principle, what all these ‘little measures’ that no ‘patriotic German’ could resent must some day lead to, one no more saw it developing from day to day than a farmer in his field sees the corn growing. One day it is over his head.
“How is this to be avoided, among ordinary men, even highly educated ordinary men? Frankly, I do not know. I do not see, even now. Many, many times since it all happened I have pondered that pair of great maxims, Principiis obsta and Finem respice—‘Resist the beginnings’ and ‘Consider the end.’ But one must foresee the end in order to resist, or even see, the beginnings. One must foresee the end clearly and certainly and how is this to be done, by ordinary men or even by extraordinary men? Things might have. And everyone counts on that might.
“Your ‘little men,’ your Nazi friends, were not against National Socialism in principle. Men like me, who were, are the greater offenders, not because we knew better (that would be too much to say) but because we sensed better. Pastor Niemöller spoke for the thousands and thousands of men like me when he spoke (too modestly of himself) and said that, when the Nazis attacked the Communists, he was a little uneasy, but, after all, he was not a Communist, and so he did nothing; and then they attacked the Socialists, and he was a little uneasier, but, still, he was not a Socialist, and he did nothing; and then the schools, the press, the Jews, and so on, and he was always uneasier, but still he did nothing.
And then they attacked the Church, and he was a Churchman, and he did something—but then it was too late.”
“Yes,” I said.
“You see,” my colleague went on, “one doesn’t see exactly where or how to move. Believe me, this is true. Each act, each occasion, is worse than the last, but only a little worse. You wait for the next and the next. You wait for one great shocking occasion, thinking that others, when such a shock comes, will join with you in resisting somehow. You don’t want to act, or even talk, alone; you don’t want to ‘go out of your way to make trouble.’ Why not?—Well, you are not in the habit of doing it. And it is not just fear, fear of standing alone, that restrains you; it is also genuine uncertainty.
“Uncertainty is a very important factor, and, instead of decreasing as time goes on, it grows. Outside, in the streets, in the general community, ‘everyone’ is happy. One hears no protest, and certainly sees none. You know, in France or Italy there would be slogans against the government painted on walls and fences; in Germany, outside the great cities, perhaps, there is not even this. In the university community, in your own community, you speak privately to your colleagues, some of whom certainly feel as you do; but what do they say? They say, ‘It’s not so bad’ or ‘You’re seeing things’ or ‘You’re an alarmist.’
“And you are an alarmist. You are saying that this must lead to this, and you can’t prove it. These are the beginnings, yes; but how do you know for sure when you don’t know the end, and how do you know, or even surmise, the end? On the one hand, your enemies, the law, the regime, the Party, intimidate you. On the other, your colleagues pooh-pooh you as pessimistic or even neurotic. You are left with your close friends, who are, naturally, people who have always thought as you have.
“But your friends are fewer now. Some have drifted off somewhere or submerged themselves in their work. You no longer see as many as you did at meetings or gatherings. Informal groups become smaller; attendance drops off in little organizations, and the organizations themselves wither. Now, in small gatherings of your oldest friends, you feel that you are talking to yourselves, that you are isolated from the reality of things. This weakens your confidence still further and serves as a further deterrent to—to what?
It is clearer all the time that, if you are going to do anything, you must make an occasion to do it, and then you are obviously a troublemaker. So you wait, and you wait.
“But the one great shocking occasion, when tens or hundreds or thousands will join with you, never comes. That’s the difficulty. If the last and worst act of the whole regime had come immediately after the first and smallest, thousands, yes, millions would have been sufficiently shocked—if, let us say, the gassing of the Jews in ’43 had come immediately after the ‘German Firm’ stickers on the windows of non-Jewish shops in ’33. But of course this isn’t the way it happens. In between come all the hundreds of little steps, some of them imperceptible, each of them preparing you not to be shocked by the next. Step C is not so much worse than Step B, and, if you did not make a stand at Step B, why should you at Step C? And so on to Step D.
“And one day, too late, your principles, if you were ever sensible of them, all rush in upon you. The burden of self-deception has grown too heavy, and some minor incident, in my case my little boy, hardly more than a baby, saying ‘Jewish swine,’ collapses it all at once, and you see that everything, everything, has changed and changed completely under your nose. The world you live in—your nation, your people—is not the world you were born in at all. The forms are all there, all untouched, all reassuring, the houses, the shops, the jobs, the mealtimes, the visits, the concerts, the cinema, the holidays. But the spirit, which you never noticed because you made the lifelong mistake of identifying it with the forms, is changed. Now you live in a world of hate and fear, and the people who hate and fear do not even know it themselves; when everyone is transformed, no one is transformed. Now you live in a system which rules without responsibility even to God. The system itself could not have intended this in the beginning, but in order to sustain itself it was compelled to go all the way.
“You have gone almost all the way yourself. Life is a continuing process, a flow, not a succession of acts and events at all. It has flowed to a new level, carrying you with it, without any effort on your part. On this new level you live, you have been living more comfortably every day, with new morals, new principles. You have accepted things you would not have accepted five years ago, a year ago, things that your father, even in Germany, could not have imagined.
“Suddenly it all comes down, all at once. You see what you are, what you have done, or, more accurately, what you haven’t done (for that was all that was required of most of us: that we do nothing). You remember those early meetings of your department in the university when, if one had stood, others would have stood, perhaps, but no one stood. A small matter, a matter of hiring this man or that, and you hired this one rather than that. You remember everything now, and your heart breaks. Too late. You are compromised beyond repair.
“What then? You must then shoot yourself. A few did. Or ‘adjust’ your principles. Many tried, and some, I suppose, succeeded; not I, however. Or learn to live the rest of your life with your shame. This last is the nearest there is, under the circumstances, to heroism: shame. Many Germans became this poor kind of hero, many more, I think, than the world knows or cares to know.”
I said nothing. I thought of nothing to say.
“I can tell you,” my colleague went on, “of a man in Leipzig, a judge. He was not a Nazi, except nominally, but he certainly wasn’t an anti-Nazi. He was just—a judge. In ’42 or ’43, early ’43, I think it was, a Jew was tried before him in a case involving, but only incidentally, relations with an ‘Aryan’ woman. This was ‘race injury,’ something the Party was especially anxious to punish. In the case at bar, however, the judge had the power to convict the man of a ‘nonracial’ offense and send him to an ordinary prison for a very long term, thus saving him from Party ‘processing’ which would have meant concentration camp or, more probably, deportation and death. But the man was innocent of the ‘nonracial’ charge, in the judge’s opinion, and so, as an honorable judge, he acquitted him. Of course, the Party seized the Jew as soon as he left the courtroom.”
“And the judge?”
“Yes, the judge. He could not get the case off his conscience—a case, mind you, in which he had acquitted an innocent man. He thought that he should have convicted him and saved him from the Party, but how could he have convicted an innocent man? The thing preyed on him more and more, and he had to talk about it, first to his family, then to his friends, and then to acquaintances. (That’s how I heard about it.) After the ’44 Putsch they arrested him. After that, I don’t know.”
I said nothing.
“Once the war began,” my colleague continued, “resistance, protest, criticism, complaint, all carried with them a multiplied likelihood of the greatest punishment. Mere lack of enthusiasm, or failure to show it in public, was ‘defeatism.’ You assumed that there were lists of those who would be ‘dealt with’ later, after the victory. Goebbels was very clever here, too. He continually promised a ‘victory orgy’ to ‘take care of’ those who thought that their ‘treasonable attitude’ had escaped notice. And he meant it; that was not just propaganda. And that was enough to put an end to all uncertainty.
“Once the war began, the government could do anything ‘necessary’ to win it; so it was with the ‘final solution of the Jewish problem,’ which the Nazis always talked about but never dared undertake, not even the Nazis, until war and its ‘necessities’ gave them the knowledge that they could get away with it. The people abroad who thought that war against Hitler would help the Jews were wrong. And the people in Germany who, once the war had begun, still thought of complaining, protesting, resisting, were betting on Germany’s losing the war. It was a long bet. Not many made it.”
The pastor Martin Niemoeller commentary is as relevant today as it ever was. We can’t just turn our heads because “they” are coming for someone we don’t like. Every time the government takes more power and violates another person’s rights is another step closer to you.
Exactly! That’s why I hate to see “enlightened” people submit so easily to laws that target the “unenlightened,” such as smokers and drinkers.
Smokers and drinkers? Well sure. Certainly many of the same folks that support imposing “sin taxes” on personal practices and habits they don’t particularly care for as individuals, or that are not currently in vogue, engage themselves in practices and habits equally repulsive and self-destructive which they would never support the imposition of excessive taxation on. But Communism; Socialism? These are totalitarian philosophies of government which are completely and utterly antithetical to American Representative Republicanism. And the Constitution does, afterall, guarantee to each state in this union a Republican form of Government.
Apples and oranges you’re comparing here.
Not apples and oranges at all. Take the new bill that just passed into law by Congress submitting jurisdiction over tobacco to the FDA. Now, the FDA will have all sorts of fun running a tobacco-related political agenda.
The point I made above was that this is Unconstitutional, but the majority does not care because they support such usurpations against the minority. Divide and conquer.
It is directly on point to Michael’s comment that, “We can’t just turn our heads because “they” are coming for someone we don’t like. Every time the government takes more power and violates another person’s rights is another step closer to you.”
So you’re saying the government has no more legitimate interest (neither authority) in preventing the spread of an ideology antithetical to itself within its jurisdiction, than it has tampering with the personal choices of individuals which can in virtually no conceivable way present it with an existential threat and has no ideological preferences one way or the other? Are we losing something in translation here? I’m a little confused.
Terry, I am not sure I am clear on your question. I will attempt to answer based upon what I think you are asking. If I interpret it in error, please ask it another way.
What I think your question attempts to state is a point about the government and what it should or should not do.
I think your question attempts to make a point that government might have a legitimate interest in regulating behavior that otherwise would threaten the government.
First, the behavior does not threaten the government. One might argue it does in terms of health care costs, but just because the government assumes its way into a problem does not mean it HAS to be the government’s problem.
Second, while you correctly point out that we were assured a Republican form of government, that slightly misses the point. The Republican form of government we were guaranteed was also limited in its power over the individual, through Article I, Section 8 and also, through the Bill of Rights and subsequent Amendments.
So, “no,” they do not just get to vote on it.
Wait until Congress outlaws the internet, cheeseburgers or pet dogs. You will then see people asking how that could possibly be Constitutional.
But when it comes to smokers and drinkers (those whom we love to hate or could care less about), Constitutionality is never perceived as an issue.
Again, I say this is obvious and merely reinforces the point made by Michael. Maybe I am misunderstanding your question.
Let me pose the scenario in another light.
There is a principle in the law that holds the parties to a lawsuit may not confer jurisdiction on a court by waiver or agreement. For example, if the jurisdictional limit in a small claims court is $10,000, you and I cannot maintain a lawsuit against each other in that court if the amount in controversy is $20,000. Even if the suit goes all the way to judgment in your favor in the amount of $1,000, it is void. Even though I might not have complained about lack of jurisdiction in the trial court, I can challenge the jurisdiction for the first time on appeal, and I will win. The judgment will be held to be void because the amount in controversy exceeded the trial court’s jurisdiction.
Now, let’s move that principle on over to the Constitution. If something is in fact Unconstitutional, the Unconstitutionality of it cannot be waived by agreement or acquiescense. It is what it is – Unconstitutional. A majority vote cannot make it Constitutional.
So, what if the trial court erroneously holds a taking under eminent domain is Constitutional, even though no just compensation was paid by the condemnor?
The court of appeals should clearly reverse it because compensation is a Constitutional requiremennt.
But what if the court of appeals affirms? Then, the US Sct should reverse it for the same reason.
Now, what if the US Sct affirms? Although it is the court of last resort, I believe not even the US Sct has the authority to transform something that is Unconstitutional into something that is Constitutional.
Therefore, I think many such opinions of the SCt are wrong, and a great many things still exceed the Constitution.
I do not believe the federal govermment, for example, has authority to set product safety standards, regulate wages, regulate child labor, run welfare programs, involve itself in education, and on and on….
I believe that every one of these areas of potential regulation was left to the states because, at the time of ratifying the Constitution, as shown by the language within it, none of the states were willing to cede such authority to the federal government. They were not going to let a majority of states band together and democratically invade their sovereignty.
Even if every single state agrees to something Unconstitutional, it remains Unconstitutional. The only remedy available to states in a position like that is to amend the Constitution. They cannot skip that step because it is a jurisdictional step.
Well, my contention is with the equation of something as politically innocuous as smoking cigarettes and drinking alcohol with something as radical and destructive of personal liberty (and its political support – constitutional republicanism) as socialism and communism, the latter of which, by the way, the country is currently collapsing into at breakneck speed. So in that sense I think we ought to be ‘going after’ our communistic political leaders (bringing back the old tar and feather routine doesn’t sound bad at this point), but the cold hard fact is that they were elected by socialists/communists who became good communists and finally gained ascendancy into our counsels through decades and decades of practice, of trial and error, and of the importation of communists here from elsewhere around the world.
This whole site is devoted to addressing the issue of federal usurpation of reserved States’ rights under the 10th Amendment. I believe there are remedies available to the States to recapture much of their lost sovereignty. However, they all require the moral resolution to assert their right and not back down. To simply pass resolutions will accomplish little or nothing. Likewise, leaving it to the federal government to adjudicate the State’s right will not do either.
This is the flaw in Montana’s firearm legislation: it ultimately leaves it up to the federal judiciary to decide whether it will acknowledge the State’s claim to sovereignty over local incidents of firearms manufactured in the State. During Prohibition it took a constitutional amendment to give Congress concurrent jurisdiction to punish local incidents of beverage alcohol (18th Amendment). They also were able to reach local incidents through revenue laws, acquiring jurisdiction by attaching a tax to the manufacture of alcohol (thus the dreaded “federal revenuer”). Then came the “war on drugs.” In this case what happened is that Congress found it could not effectively regulate interstate incidents of illegal drugs because it could not be known if this bunch of little white pills crossed state line, while this bunch of white pills did not. Therefore, Congress claimed the right to control ALL incidents of little white pills. There is at least a plausible basis for this, but what about local incidents of cultivation of marijuana? Now you have growing plants, rooted in the soil of a sovereign State, and no possible basis for mistaking the fact that they have not moved in interstate commerce. Yet, federal prosecution for cultivation of marijuana occurs all the time. Thus, where it took a constitutional amendment during prohibition, it now does not. Yet, I doubt it was any easier then to identify if beverage alcohol crossed state lines than it does today for little white pills.
So, merely having a stamp on the barrel of a gun showing it was manufactured in Montana will not necessarily negate federal control. Congress and the courts are intrinsically dishonest. If you don’t believe me, just ask anyone who has litigated these issues in federal court.
If the States are going to regain their sovereignty, they will need to chose their battles wisely and stick to their guns – maybe even literally. My thinking is that they should start with the problem of judicial activism. I think the American people are well aware of the problem of judicial activism and are fed up with the nation being kept in a state of constant turmoil by courts intruding into areas they have no right. I think the slaying of abortionist George Tiller only helps to underscore the problem. Abortion is a local question reserved for the States; the federal government had no business reaching out and “federalizing” this issue. If it had not, the slaying of Tiller probably would never have occurred (or the abortion of 60,000 late term pre-born babies for that matter).
Abortion is a hot button issue, so I would not recommend starting there. But I believe that most Americans are very supportive of public acknowledgement of God in Ten Commandment monuments, manger scenes, crosses, commencement prayers, etc. Those who take exception to these are very few. The spectacle of suddenly being told we cannot mention “God” in the pledge of allegiance has brought down public opinion against this sort of thing by the federal courts. Thus, I think a State would find wide spread public support for taking a stand here.
What they could do is to make legislative findings and declarations of fact as to the ORIGINAL INTENT of the 1st Amendment Establishment Clause and the 14th Amendment. They should make a long recital of the facts evidencing the historic right of the People and States to acknowledge God, beginning with the Mayflower Compact, and forward, tracing over 400 years of history. For example, the Constitutions of all 50 States acknowledge God. Having shown that it is their historic right to acknowledge God and that the 1st Amendment binds only Congress, and that it was no part of the ORIGINAL INTENT of the 14th Amendment to incorporate the 1st Amendment, the States should then claim sovereignty under the Tenth Amendment to acknowledge God. On the basis of their legislative findings and declarations of facts, the States must then enact penal statutes making it illegal to obey or attempt to enforce the order of a court purporting to require removal of a Ten Commandments monument, etc.
This would then set up an immediate conflict between “Judicial Activism versus Original Intent.” One has the moral authority of law and widespread public support, the other stands upon raw, naked power. I think that in any litigation that transpired the State would win, provided the State even consents to federal jurisdiction to litigate it. After all, the State Legislature will already have made findings and declarations of fact, there is nothing left to litigate! The facts are already in and the case has been decided: The States did not intend or consent to hand over their right to acknowledge God when the 14th Amendment was enacted. And who is there that will argue otherwise? If they do enter a federal court, they must begin by arguing the court has no subject matter jurisdiction. Lawyers hate to do this because it makes the judge mad and they want the judge on their side, but conceding federal jurisdiction is the first mistake and virtually gives away the case.
Naturally, a States must be willing to secede should the federal government be resolute in denying their rights. And they should, for who would want to live under a government that will not acknowledge God or any authority higher than itself, and wants to play the tyrant over the states and people?
Blessings,
why then jeff do you not lead the stand against the government on these issues which as a nation we have a right and a duty to stand against expecially if we are already talking about these things which to me illiustrate that we should have taken a stand a long time ago. that is the right to call out what the goverment is doing as unconstitutional so that we can start drawing that line again and not fall victom to our government
“The end of law is not to abolish or restrain but to preserve and enlarge freedom. For in all the states of created beings, capable of laws, where there is no law there is no freedom. For liberty is to be free from restraint and violence from others, which cannot be where there is no law.”