M.O.W.C.A.

incongruence (plural incongruences)

1. a want of congruence; incongruity.
2. out of place, absurd

19:18, 24 February, 2010 р.
Paladin says:

“If I understand your point in “A Convenient Ignorance”, you’re saying that, 1.  The US Constitution does not act as a restraint on the individual states nor provides protections against usurpation of rights for private citizens.  In other words, even though it “enumerates” certain Rights “of the people”, the people cannot depend on the Constitution as a protection against usurpation of any of those rights by the States, and 2.  The Commerce Clause does not give the Federal Government legitimate authority to regulate firearms in any manner.

If I have that correct, then we agree on #2 but not on #1.”

I have for several days now considered how I should even answer this. Perhaps I should front my answer with  another quote from Paladin further on in his comment:

“I picked up the language “apply against the states” from reading the opinions from Judge Silverman’s opinion in Parker, Scalia’s opinion in Heller and the various Amici submissions pursuant thereto.  I’m no lawyer if that’s what you’re wondering.

When I read the provisions I cited, it is clear to me that all the judges and executive officers, both of the United States and the several states, are required to support said Constitution as the “supreme law of the land” and therefore must be bound by all terms therein (e.g. cannot infringe the RKBA).

Therefore, for example, if anyone (including a convicted felon) is brought before a judge in Arkansas on charges of illegally possessing a weapon, the judge is bound to dismiss those charges as a violation of the 2nd Amendment to the U.S. Constitution. (Regarding Felons, I could not find any mention in the Constitution whereby someone convicted of a felony forfeits any of their God-given, pre-existing, fundamental rights such as the RKBA.)

Further, though I didn’t mention it in the referenced post, the verbiage in Article IV, Sec. 2., “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States” also clearly indicates to me that the States are, in fact, restrained by the provisions of the BoR.”

“Maybe I’m just one of those “dumb, dumb, dummies” the Progressives keep referring to.

I’d still like to hear you address the specific verbiage I’ve quoted and explain how it does not require the States to honor the Rights enumerated in the Constitution.

I’m familiar with the so-called “Incorporation Doctrine” and, frankly, consider it LEGAL QUACKERY perpetrated by corrupt courts, legislators and executive officers of government in order to justify their failure to uphold their duties outlined in the Constitution and stated in their required Oaths of Office.

Thanks for addressing my question.”

Though Paladin has some things quite correct, it is obvious that Paladin’s thinking is still not in line with the framers of the Federal Constitution. Whether we will acknowledge it or not, what fundamental ground one’s thinking springs from, matters greatly. It is this fundamental ground that will determine whether one stands resolute, or is swayed by various influences — even to the point of total and complete departure from the core beliefs this nation was founded upon.

In consideration, one does not have to be a lawyer to understand the Constitution and its various provisions, so claiming to not be a lawyer does not excuse one from failing to understand the Federal Constitution and the principles that establish it. Rather, the principles employed in framing the Federal Constitution are actually quite simple, beginning with the principles of covenant and ending with the principles of service. In answering the assertion that I somehow stated that the Federal Constitution does not provide protection against the usurpation of individual rights by the states, it is essential that we look to the principles of covenant for an answer. However, it should also be noted that I never stated, implied or agreed to the assertion made. Rather, that is an assumption of Paladin which is not warranted. Unless I state it directly, please don’t assume I implied it.

With that, let us examine the issue of individual rights and their respective protections under the Federal and State constitutions.

It is held by many, and is a subject of much debate, that without the 14th Amendment and its Doctrine of Incorporation, the rights enshrined in the Bill of Rights are not protected when a state so chooses to abridge one of those rights. Plainly, if we understand the principles that are the foundation of the Federal Constitution, we will know that this is an absurdity that cannot stand the test of reason. The relevant section of the 14th Amendment states:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

We should note this amendment was brought into existence in 1868, in the wake of the Civil War and during the time of the Reconstruction. We should also note that neither the Civil War, nor the Reconstruction were acts which could even be remotely construed as constitutional. It is notable that Lincoln walked all over the Federal Constitution in numerous acts, both before and during the Civil War, and Andrew Johnson was not any better during the Reconstruction. Moreover, the U.S. House and Senate were  willing accomplices in these acts. Therefore it should not surprise anyone that an amendment was framed that not only was unnecessary, but also skewed the very way the Constitution is interpreted.

To understand how this is, we need only go back to Mr. Iredell’s explanation of how to view the Federal Constitution:

“It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before,  that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, “’Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.”¹

This is not a unique view as both the Virginia and Kentucky Resolutions opposing the Alien and Sedition Acts state the same view. Additionally, in the Resolutions, those drafting the resolutions demonstrate a principle of covenant that is essential to understanding that the prohibition on states abridging the rights of individuals is existent even without Article IV, Section 2 of the Federal Constitution.

“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and 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.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.”²

And from the Kentucky Resolution:

“3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference.”³

Thus, applying the rule of interpretation of the Federal Constitution here, we can easily see that the Federal Government has no power to abridge the right of the people to keep and bear arms of whatsoever sort. The question then turns to the several states and whether they retained the power to abridge that right, and whether Section 1 of the 14th Amendment has any real efficacy. We should also note the following from the Kentucky Resolution which directly declares that the citizens of Kentucky had already retained to themselves the very rights enumerated in the Bill of Rights:

“And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference.”⁴

And from the Virginia Resolution:

“That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.”⁵

Hence, all the rights enumerated in the Bill of Rights, were already reserved to the people of the several states by those people when they formed their respective state governments prior to the drafting of the Federal Constitution.

The questions all ought to consider follow:

Is it reason for states to covenant together to create a central government and restrain that government from abridging rights retained by the people, and then turn about and violate those very rights that their own respective constitutions also state are retained by the people?

Would not that be incongruent and a violation of a principle aspect of covenant?

Does it not border on insanity, if it is not very insane, for parties to agree that the general government will not, and indeed has no power to abridge certain rights, and then walk away and state to themselves respectively “Though I have restrained my creature from abridgement of individual rights, I myself may violate those very rights whensoever I please.”?

Hence, it is a principle of covenant that whatsoever is bound up in the instrument, the parties to that instrument are also bound to observe and abide by.

Having established the application of the one of the principles of covenant and demonstrating how it applies to both the Federal Government and the Several States, let us then turn our attention again to the 14th Amendment and what Section 1 actually accomplishes.

We should see and understand that, by the principles of covenant, it is unnecessary for Section 1 of the 14th Amendment to exist. Additionally, if we examine the text of Section 1 again:

“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

And then examine Article IV, Section 2 of the Federal Constitution:

Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

We find that Section 1 of the 14th Amendment is merely restating what is already determined, in much broader terminology, in the body of the Constitution.

To what purpose is Section 1 of the 14th Amendment then? After all, if we follow the logic and thinking of the Founders, we find no need for this portion of the 14th Amendment, just like there is actually no need for the Bill of Rights, as foretold by Mr Iredell:

“A bill of rights, as I conceive, would the case, not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.” Thus a bill of rights – might operate as a snare rather than a protection.”⁶

No only have the words of Mr. Iredell come true, but those in the Federal and state governments have gone further and violated even those rights enumerated in the Bill of Rights, because the very way they interpret the respective Constitutions has changed. What Section 1 of the 14th Amendment did accomplish, whether intentional or not, was a change in the very way the Constitution is interpreted.

Those who framed and ratified the 14th Amendment demonstrated that they did not believe in the principles of covenant relationship and that certain powers were granted to the government and all others retained, in that they began (with the 13th Amendment) to include the following statement in the text of the amendment:

“The Congress shall have power to enforce this article by appropriate legislation.”

Now, what is the point of granting power to an entity to perform a function, and then not granting them the means to do so? Or, saying “Though we have said you have the power do this thing, because we did not expressly state we enabled you to do, you cannot do it.”

Now, who is it that makes the laws under the Constitution anyway? What branch of the Federal Government is granted the exclusive power to draft laws and bring them into existence, carrying the full authority of the United States? Even if the President vetoes a particular bill, if the legislature overrides his veto, it still becomes law. To what point then is the statement “The Congress shall have power to enforce this article by appropriate legislation.”?

I can only conceive of one: That the whole way of thinking about the Federal Constitution and interpretation of the same changed — and changed radically.

This is the only thing that fits with the restatement, in the 14th Amendment, of Article IV, Section 2 of the Constitution itself: that Amendments now no longer simply supersede all parts of the document they affect. But, are simply considered addendums to the body, not amending the body, but adding to. Moreover, that the granting of power no longer conveys with it the requisite ability to exercise that power, but they are artificially divorced one from the other. Even so, this applies to powers retained: That those rights enumerated in the Bill of Rights where not simply certain rights carefully chosen and enumerated due to their great value, which were retained by the people along with other rights not enumerated, but are rights granted to the people by the Constitution itself.

Here then we find the whole thinking of the Founders turned on its head, and the vast majority of individuals in the United States accepting a concept and idea totally alien and foreign to the Founders and an anathema to the principles that are foundational to the form of government brought into existence by the founders of this nation.

1. The Origin of the Second Amendment, pp. 491-493, David E. Young, Golden Oak Books, 1991, citing Debates, IV, pp. 137-138, 140-141, 148-149. [↩]
2. The Virginia Resolution opposing the Alien and Sedition Acts [↩]
3. The Kentucky Resolution opposing the Alien and Sedition Acts [↩]
4. The Kentucky Resolution opposing the Alien and Sedition Acts [↩]
5. The Virginia Resolution opposing the Alien and Sedition Acts [↩]
6. The Origin of the Second Amendment, pp. 491-493, David E. Young, Golden Oak Books, 1991, citing Debates, IV, pp. 137-138, 140-141, 148-149. [↩]

From a comment left yesterday by “Paladin.”

“If the US Constitution was not intended to apply against the states, why do the States have to “ratify” it?  If they aren’t bound by it, what’s the purpose of ratification?

How do you explain that something designated as “the supreme law of the Land” is not a restriction on State governments.

What do the following excerpts from Article VI mean then?

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; ….”

Inquiring mind of freedom would like to know.”

I would be curious Paladin, to know where you obtain the language “to apply against the states.” That is strange construction to apply to the Federal Constitution. Nonetheless, an answer is in order since you either seek to discredit what I wrote or truly do not understand the legal principles that are the foundation of the constitutional system. In either case, understanding is lacking and that needs to be rectified.

Without citation, the following is a brief explanation as to what constitutions are, and how they are supposed to work.

Constitutions are formed out of the “social compact” theory of government. (Well, since it is in actual practice, it is really no longer theory.)

The social compact doctrine is built on the principles of covenant relationship, in which members of society covenant together to create an entity (the government) that is able to perform tasks that are impossible for the individuals themselves, in their single capacity, to perform. (Ref. John Locke, Second Treatise of Government)

However, there is a point in which physical boundaries, societal commonality, and other similar factors limit the effectiveness of individuals to covenant together. Hence, we find the rise of the state government.

The governments of the several states, themselves being created by the people and composed of individuals, yet acting as single entities, replicated the social compact doctrine on a larger scale to create a federal government that is defined by the covenant they (the several states) agreed to.

It is this agreeing to the covenant, or compact, which is the Federal Constitution, that is the process we call ratification. This ratification brings into existence a legal instrument that is binding upon the parties agreeing to the instrument, and upon the entity created by the instrument. However, how the states and the Federal government are bound is not the same.

There is a fundamental difference in how the creators of the instrument are bound, versus how the creation of that instrument is bound. We should note the instances in which the Founders referenced that powers were “delegated” to the Federal Government by the several States through the mechanism of the Federal Constitution.

It is not reasonable to assert that once power is delegated, it can also, at once and the same time, be retained by the one delegating the power. Hence, certain powers are given up by the several states and delegated to the Federal Government, so that the Federal Government may perform functions that are far to difficult for the several states individually to perform. If we use here the illustration of power of attorney, we can well understand the confusion that would reign by someone granting power of attorney to another, and then retaining that same power of attorney and acting upon it whensoever one felt compelled to do so. It certainly would not work if I grant another power of attorney to sell my automobile, and then, after power of attorney is granted, I turn around and attempt to sell my car myself. Of what use was that instrument of power of attorney in the first place? Why did I execute it, if I intended to undercut it at the first opportunity?

It is an absurdity to delegate powers, and then assert that you retain the powers you just agreed to delegate to another. Hence, the process of ratification is extremely important to the several states. After all, what powers and functions should they grant to another? What powers and functions are appropriate for a Federal  Government? What is too much power and what is too little power?

By the above discussion, we should be able to understand that the instrument that brought about the Federal Government (the U.S. Constitution) must contain some provisions that declare it superior to the laws of all parties agreeing thereto. After all, they agreed to give up certain powers and retain others, and the retained powers cannot conflict with the delegated powers. To insure there is no conflict, some instrument must be declared superior to others, else again confusion will reign, and all effort is wasted.

Here, we should note a significance: If a state chooses not to be party to the compact called the Federal Constitution, then that state is not bound by the few provisions in the Constitution that address what States may not do, but that state is also not granted protection under the Constitution either.

The long and short of it is that states must ratify the Federal Constitution else the covenant is not agreed to, and thus null and void. Moreover, in delegating certain powers, it is essential that all parties to that covenant agree to not exercise themselves in the powers delegated, and when laws are passed pursuant to the exercise of those delegated powers by the created entity (the Federal Government), that they are bound by those laws.

There is yet one additional aspect to consider before leaving off this brief discussion: the issue of continuance in being a party to sustaining that legal instrument designated the U.S. Constitution. It is a principle in law that when power of attorney is executed, the provisions set down in the document determine the duration of that power of attorney. Generally, powers of attorney are for the attaining of a set object, or for a set duration. Hence those powers of attorney cannot be arbitrarily revoked unless the one granted such power engages in misconduct to the point of rendering themselves unfit to retain the power of attorney before the object of the power of attorney is accomplished. However, when a power of attorney does not define a set object or duration, but is granted solely at the discretion of the grantor for purposes beneficial to the grantor, then the grantor of that power of attorney is free to revoke the power of attorney whenever it becomes a liability and not a benefit.

Hence, the several states are parties to the instrument designated the U.S. Constitution, for the creation of a federal government to accomplish ends beneficent to them both individually and collectively. However, since no power was delegated in the instrument to compel any party to maintain continuance as a party to that instrument, then whensoever that instrument becomes more a liability than a benefit to any party to the instrument, that party is free to withdraw from the instrument without penalty of law, since there is no law created whereby they may be compelled to maintain an interest in the instrument (the Constitution). However, in so doing, they also divest themselves of the benefits of that instrument at the moment they withdraw from the instrument.

It should be noted (as discussed previously) that no part or parcel of the Federal Government is free to go beyond the strict bounds of the instrument that created and governs it.

Thus we have the basic reasons set forth as to why the states must ratify the instrument which is the U.S. Constitution and why they are bound by certain limited provisions in the instrument — and, how the Federal Government is far more bound by the Constitution than any of the several states. The Federal Government is nowhere free to leave the bounds of the Constitution, being a creation of it. But the states are free to divest themselves of their interest in the instrument whensoever it becomes more a liability than a benefit.

Within the last day or so my attention has been drawn (or directed, if you will) to the Montana Shooting Sports Association’s website dedicated to the Firearms Freedom Act. Now, it is not to say I did not know about this, as I did. Rather, now that virtually all legal remedy for Wayne Fincher being exhausted with no satisfactory resolution for Wayne, there is little else to do but turn attention to the greater core issues at stake in virtually all Second Amendment cases. It is not that those issues were not touched on in Wayne’s case. They were. But then the Court’s hand was drawn back as if it touched a red hot stove. Even at the level of the Supreme Court, there was and is an allergy to really looking at the true intent of the Founders when it comes to firearms.

Perhaps the Firearms Freedom Act will change that. But I doubt it.

The reason I doubt it is because the courts have traditionally not employed the English language in a way that anyone else versed in English understands. The higher you go in the Federal courts, the worse the problem gets, and the more allergic they are to addressing the fundamentals of grammar and usage as applied to the Constitution and all laws promulgated subsequently.

They are particularly allergic to standard English grammar and usage when it comes to the Second and Tenth Amendments, much preferring to deal with arcane, largely irrelevant, side issue without addressing the fundamental error that has existed since (at least) the Civil War, and certainly since the National Firearms Act of 1934.

If we will remember, the National Firearms Act, all subsequent gun control acts and all court decisions upholding those acts, operate under the auspices of the Commerce Clause of the Constitution, which gives rise to an interesting question. But first, reading the dictionary is in order:

a·mend·ment  (-mndmnt)
n.
1. The act of changing for the better; improvement: “Society may sometimes show signs of repentance and amendment” (George G. Coulton).
2. A correction or alteration, as in a manuscript.
3.    a. The process of formally altering or adding to a document or record.
b. A statement of such an alteration or addition: The 19th Amendment to the Constitution gave women the right to vote.
4. A material, such as organic matter or sand, mixed into soil to improve growing conditions.¹

Hence, we are given to understand, that in English grammar and usage, an amendment always amends or changes the text it applies to. Thus, when the Founders added the first ten amendments to the Federal Constitution and made an explanatory statement:

PREAMBLE
The conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution.

They did so with the intent that all should know the ground and purpose of amending a brand new document. It was not that the document was defective. Neither was it that they wished to go beyond the scope of the document. Rather, the amendments were added to prevent misconstruction and abuse of power by those subject to the document i.e. the Federal Government.

Before continuing, we would do well to understand one fundamental fact:

The Federal Constitution is not applicable to the private citizen who does not fulfill any role in the Federal Government.

We should be able to perceive this by the fact that the Federal Constitution authorizes and creates offices, and defines their duties and subsequent powers for carrying out those duties. There is a brief section in the Constitution that insures that the several states do not usurp certain powers belonging to the Federal Government. In that regard, the Federal Constitution thus applies to the citizen who fulfills duties in a state government. However, it goes no further than this in applying to any citizen, or any other person for that matter.

So it is that the Federal Constitution is the law for the operation of a Federal Government, and is not applicable to individual citizens operating in a purely private capacity. The Federal Constitution applies to the President,  and officers of Executive branch, Senators and Congressmen, and officers of the Legislative branch, the judges of the Supreme Court and all officers of the Judicial branch, down to the janitor in the Federal magistrate court. It is applicable to the officers of the governments of the several states in an injunctive capacity only, but no further.

Hence, this document called the Federal Constitution, is a document that is not merely a guide, but law, and law for the operation of a government on the Federal level. Thus, to prevent misconstruction and abuse of power of that law by those whom the law applies to, the Founders amended that law with ten fundamental amendments designed to operate as a check and arresting mechanism. Moreover, those ten amendments do not specifically address certain sections of the Federal Constitution, but are general and broad, thus applying to the whole of the document. If we examine the whole of the Federal Constitution, and then examine the whole of the Bill of Rights we will find that no amendment applies to any specific portion of the Constitution. When this is the case, the accepted rule of interpretation and construction is broad, applying to the whole of the body of the document in question.

Perhaps then we should be moved to ask:

What is our rule for interpretation and construction of the document itself?

To answer that, it would be essential to look at the documents written in support of the Federal Constitution, and the arguments offered in favor of its ratification. From such documents we find a clear rule for determining how we should interpret this document and thus construct laws arising out of it. For our understanding, three examples of the understanding of the Founders are accurately representative of their views of, and intentions for the then new document.

James Madison, in the Federalist No. 45:

“The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State governments are numerous and indefinite.”

Alexander Hamilton explained in the Federalist 84:

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

And from the Debates in North Carolina:

Mr. Iredell
With regard to a bill of rights, this is a notion originating in England, where no written constitution is to be found, and the authority of their government is derived from the most remote antiquity. The Magna Charta itself is no constitution, but a solemn instrument ascertaining certain rights of individuals, by the legislature for the time being; and every article of which the legislature may at any  time alter. This and a bill of rights also, the invention of later  times, were occasioned by great usurpations of the crown, contrary, as  was conceived, to the principles of their government, about which there was a variety of opinions. But neither that instrument, nor any other instrument, ever attempted to abridge the authority of Parliament, which is supposed to be without any limitations whatever. Had their constitution been fixed and certain, a bill of rights would have been useless, for the constitution would have shown plainly the  extent of that authority which they were disputing about. Of what use, therefore, can a bill of rights be in this Constitution, where the people expressly declare how much power they do give, and consequently retain all they do not? It is a declaration of particular powers by the Debates to their representatives, for particular purposes. It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before,  that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, “’Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.” A bill of rights, as I conceive, would the case, not only be incongruous, but dangerous. No man, let his ingenuity be what it will, could enumerate all the individual rights not relinquished by this Constitution. Suppose, therefore, an enumeration of a great many, but an omission of some, and that, long after all traces of our present disputes were at an end, any of the omitted rights should be invaded, and the invasion be complained of; what would be the plausible answer of the government to such a complaint? Would they not naturally say, “We live at a great distance from the time when this Constitution was established. We can judge of it much better by the ideas of it entertained at the time, than by any ideas of our own. The bill of rights, passed at that time, showed that the people did not think every power retained which was not given, else this bill of rights was not only useless, but absurd. But we are not at liberty to charge an absurdity upon our ancestors, who have given such strong proofs of their good sense, as well as their attachment to liberty. So long as the rights enumerated in the bill of rights remain unviolated, you have no reason to complain. This is not one of them.” Thus a bill of rights – might operate as a snare rather than a protection. If we had formed a general legislature, with undefined powers, a bill of rights would not only have been proper, but necessary; and it would have then operated as an exception to the legislative authority in such particulars. It has this effect in respect to some of the American constitutions, where the powers of the legislature are general. But where they are powers of a particular nature, and expressly defined, as in the case of the Constitution before us, I think, for reasons I have given, a bill of rights is not only unnecessary, but would be absurd and dangerous.²

We should note the consistency of thought in the citations pertaining to the ability of the Federal Government as created by the Federal Constitution, to exercise power and the extent of that exercise of power — that it is extremely limited, and limited by the text of the Constitution to those things which are expressly defined in the body of the document. To quote Mr. Iredell again:

It may be considered as a great power of attorney, under which no power can be exercised but what is expressly given. Did any man ever hear, before,  that at the end of a power of attorney it was said that the attorney should not exercise more power than was there given him? Suppose, for instance, a man had lands in the counties of Anson and Caswell, and he should give another a power of attorney to sell his lands in Anson, would the other have any authority to sell the lands in Caswell? — or could he, without absurdity, say, “’Tis true you have not expressly authorized me to sell the lands in Caswell; but as you had lands there, and did not say I should not, I thought I might as well sell those lands as the other.”³

In response to his argument, we find in ratifying the Bill of Rights, these two “catch-all” amendments:

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Could I, without contradiction, make mention of the absurdity of our present state of government? But I digress.

In returning to the previously cited definition of the word “amendment,” the stated intention of the first ten amendments to the Federal Constitution found in the preamble to the same, and the rule for interpretation of the Federal Constitution, let us place them together and consider whether the “Commerce Clause” of the Constitution has any power, or can have any power over arms, or can exercise regulation of the production, distribution, sale, ownership, possession, or bearing of the same.

The commerce clause, found in the body of the Constitution itself, is defined in the following manner:

Article I, section 8: The Congress shall have Power . . .
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

According to the aforementioned, the above clause, with respect to arms, is modified by the following:

AMENDMENT II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

AMENDMENT IX
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

AMENDMENT X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

According to the rules of interpretation and construction as defined by the Founders, and in accordance with their understanding, the following questions must be raised and contemplated:

1. Where in the commerce clause is it expressly stated that Congress may regulate the manufacture, distribution, sale, possession or bearing of arms within the borders of any of the several states?
2. Where is it expressly stated in the above clause that Congress may regulate in any fashion the manufacture, distribution, sale, possession or bearing of arms by an individual citizen for that citizen’s private purposes?
3. Where is it expressly stated in the commerce clause that Congress has the power to regulate any private citizen’s transport of personal arms from one state to another for private purposes and not for the purposes of commerce?

Knowing what is plainly and clearly delineated in the aforestated, can anyone, without absurdity, find for Congress or any other branch of the Federal government, the ability, the power to regulate arms as they have so done?

I think not.

Of course, if one is “willfully ignorant” what would we expect but absurdity?

How very convenient.

1. The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company. All rights reserved. [↩]
2. The Origin of the Second Amendment, pp. 491-493, David E. Young, Golden Oak Books, 1991, citing Debates, IV, pp. 137-138, 140-141, 148-149. [↩]
3. Ibid [↩]

We would do well to consider the import and full meaning behind the surprised statement of Julius Caesar in Shakespeare’s play mere moments before his death. There is an awful lot of meaning packed into those three words. Primarily, the mind focuses on betrayal, but that would be to miss the deeper meaning behind the event itself.

Though it is not known what Julius actually stated before he died, what is known is that the event which occurred a bit over two millennia ago speaks to a truism about power, and where anyone’s actual power on this earth comes from. At one point Julius had at his disposal the resources of the entire Roman Empire. Along with that he could, at his whim, call forth any number of individuals in various positions of power throughout the Empire, and have them do his bidding. It was an envied position, but a rather dangerous one.

It was dangerous because of the mode of Julius’ acquisition of power. It was not legitimate and done by the application of force. Hence, whatever legal protection Julius might have enjoyed, he had destroyed by his own behavior. Nonetheless, for a time, all those under him were willing, for various and sundry reasons, to follow Julius, lending support as he required it. It was a heady position to occupy, much like the positions enjoyed by some in government today. After all, when there is no real accountability, who is to complain about what you do, especially when those subordinate to you do as you require without murmur or question.

But something went wrong in the days, weeks, and months before the demise of Julius. That something was unthinkable to Caesar. After all, he had loyal friends who would follow his orders and let him know if things were amiss. Moreover, there were many others who followed the law as it was popularly understood, and would do nothing against Julius, he being the Emperor and the source of all power — or so it seemed.

However, what began as mere disagreement and disapproval grew and became something far more dangerous to Julius. As so often is the case, those who are unhappy find others who are in a similar state and of like mind, and begin assessing their prospects. And as it is in this world, when one reaches the peak, there is nowhere to go but down. But when one is not yet there, going up is merely a matter of the will and means to do so. Julius, it seems, had only one direction to go. . .

There is a point in which support, and thus power, which is the ability to control individuals and events, is at a maximum for anyone in a position of power. Unfortunately for Julius, that maximum had come — and gone. Unbeknownst to Julius, his power was eroding as the days went by, and the power of those in opposition was ascending. At some point the paths of ascent and descent would cross, and Julius would find himself fighting for his life. It is, after all, very difficult for one man — alone, to rule a hostile and unsupportive empire. At the point the knives came out, the title of Caesar meant very little. When one has nothing to trade with, save a title unrecognized by those about them, one is bereft of anything useful to preserve his life, save the good graces of his enemies. Unfortunately for Julius, those around him cared nothing about the character trait of graciousness — kind of like Julius caring nothing for legalities when he seized power.

It is a deceptive thing, power being what it is. It is elusive, much desired, and cultivated by various means. Some good and honorable, and most not so good and honorable. There is yet another truism at play here. That is, how you get power is how you keep power. In the sad tale of Julius (it is sad, but not a tragedy as some suppose — he earned it) both truisms were either missed or misunderstood. Like so many, Julius thought he was the source of his power, that by force of will, his desire would be carried out by those around him and subordinate to him. He was quite mistaken.

What so many who have attained power have missed is that true power flows from those who give their loyalty and support willingly, freely and without any coercion. True power is arrived at when no form of enticement or inducement is used to gain the support of those around you. Rather, the support is given because they believe what is stated and the one they are entrusting the sweat of their brow and labor of their hands to, does indeed care for them, and truly holds the same affections as they. This in turn supports them and the first cause in their lives, which is most often their kith and kin.

We the People of the United States, in Order to  form a more perfect Union, establish Justice, insure domestic Tranquility,  provide for the common defence, promote the general Welfare, and secure the  Blessings of Liberty to ourselves and our Posterity, do ordain and establish  this Constitution for the United States of America.

I just wonder where its power comes from . . .

The following is an explanation of the frustration I experienced yesterday that led to a rant about a certain principle much ignored by individuals who should know better. Unfortunately, in my dissertation about that principle I ripped an individual who I appreciate very much. It was not intentional. It is just that I got very irritated about this particular principle being missed time and again. By way of explaining why it irks me so to see it ignored, I offer the following letter written back in December of 1995, right before the special election calling for a Constitutional Convention to overhaul the 1874 Arkansas Constitution.

The principle is this: The authority that is created is not greater than the authority that created it, neither can it be. Moreover, the created authority cannot destroy the higher authority that created it without imperiling its own existence.

With that, I apologize to Anthony G. Martin at The Liberty Sphere.

I also leave you with the letter to the Editor of a VERY liberal paper.

The Morning News of Northwest Arkansas
P.O. Box 7
Springdale, AR  72765
6 Dec. 1995

Editor,

What is the supreme authority of this State?  And to whom does it apply?  For it appears our Governor cannot distinguish the proper authority to follow.  Very often it is reported that the Governor, other state agencies, and the Supreme Court are the authorities of this State.  This is a grave error.  This State is a Republic.  This is guaranteed by Article 4, Sect. 4 of the Federal Constitution.  As a Republic and not a Democracy there is a fundamental difference to be observed.  It is thus: In a Democracy the majority rules regardless of the Law.  In a Republic the Law rules regardless of the majority.

The true authority of this State is the Constitution.  The Constitution has vested authority granted it by the people.  It has been shown in the Federalist 46 that the Founding Fathers of this Nation held the people as the superior of both the state and federal governments.  The principles adhered to in creating the  Federal and State Constitutions cannot be separated.  Both governments are agents and trustees of the people and the authority for their existence is the same.  To understand how these constitutions are to be construed, it is essential to know what Alexander Hamilton explained in the Federalist 84.

“I go further, and affirm that bills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous.  They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.  For why declare that things shall not be done which there is no power to do?  Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed?”

The law, as defined by the founding documents of this nation, is the Federal Constitution.  And in matters pertaining to the States, the state constitutions prevail.  It is the State Constitution and its provisions the Governor must look to for authority.

In accordance with Article II, Sect. 1 and Sect. 29 of the Constitution of the State of Arkansas the people are the initiating authority, the drafting authority, and the ratifying authority of the constitution.  Indeed, this principle is expressed in the Preamble of the Federal Constitution.  It states, “We the people… do ordain and establish this constitution of the United States.”

To this end it is understood government is created by Man to serve Man.  Man was not created and does not exist to serve Government.  Thereby government does not rule man, but exists to protect the rights of all.  Furthermore, God created and rules man.  God created all of us as sovereign individuals with ability to discern the Law, thus form societies and their resultant governments.  This was expressed most clearly in Locke’s Second Treatise of Government, and is recognized in the Preamble of the Arkansas Constitution.

“We, the people of the State of Arkansas, grateful to Almighty God for the privilege of choosing our own form of government, for our civil and religious liberty, and desiring to perpetuate its blessings and secure the same to ourselves and posterity, do ordain and establish this Constitution.”

The Founding Fathers were not merely grateful but acknowledged the Authority of Almighty God by appealing to Him for judgement in the Declaration of Independence, our Nation’s first legal document.

The acceptance of the Authority of Almighty God by the Founding Fathers is evidence they accepted the commandments of God.  This acceptance of God’s Law preceded the founding of this nation.  English history amply displays the struggle to have all individuals subject to the Law, even the King.  The central idea is expressed clearly in Romans, Chap. 13, verse 1, “Let every person be subject to the governing authorities.  For there is no authority except from God, and the authorities that exist are appointed by God.” However, the Founding Fathers did not want the authority of the nation to be vested in a select individual or group of individuals, but in the Law.  Thus holding the Law separate, distinct, and higher than individuals.

By this and other actions they declared three specific things among others:

1.     The Law is external to all of us and exists whether we wish to acknowledge its existence or not.
2.     The Law is given by God and thus is not subject to the whims of the individual.
3.     Those in government are accountable to the Law just as is everyone else.

This gives rise to two questions central to the Dec. 12th election:

1.     How is it that Governor Tucker has taken it upon himself to initiate a new constitution?
2.     What authority does he cite as properly granting him this power?

It should be clear that a vote AGAINST the Constitutional Convention is in order on Tuesday, Dec. 12th.

The story about Obama’s executive order will not go away, so writes Anthony G. Martin in his Examiner column. In the column he references several other blogs and a couple of MSM articles where note of the EO has been taken, which is a good thing that they have finally noticed the Executive Order and its potential effect.

However, there is a persistent thread that runs through this whole story which irks to no end. It irritates me for one simple reason: It’s wrong. Yep, WRONG! Just plain wrong — in spades it’s wrong.

The part that is wrong is this:

“Put simply, this means the Constitution is no longer the supreme law of the land in America. Thanks to Executive Order 12425 , which Obama signed Dec. 16 without explaining why, the supreme law of the land is now arguably whatever Interpol says it is, most likely as directed by the International Criminal Court in The Hague, Netherlands, in conjunction with the United Nations.”

Excuse me while I go to my neighbor’s barn and begin shoveling . . .

Is it really to the point in this nation that even the supposedly educated conservatives cannot put simple concepts together and come to a reasonable, sensible conclusion? To what do I speak? This line:

“Put simply, this means the Constitution is no longer the supreme law of the land in America. Thanks to Executive Order 12425,”

BS — pure and simple. Why? Excuse me while I treat some as simple-minded children, but they have earned it. Please consider the following:

ARTICLE II
SECTION 1. Clause 1. The executive Power shall be vested in a President of the United States of America. He shall hold his Office during the Term of four Years and, together with the Vice President, chosen for the same Term, be elected, as follows:

Fair enough? The office of the President of the United States DOES NOT EXIST OUTSIDE THE FRAMEWORK OF THE CONSTITUTION! Got it?

Dang, I hope so!

Logically it follows that all powers he exercises CAN ONLY BE EXERCISED WITHIN THAT FRAMEWORK OF THE CREATION AND EXISTENCE OF THE OFFICE CREATED BY SAID CONSTITUTION!

Do you get that? I sure hope so!

Now, would we suppose it logical or reasonable that the President, whose office only exists because the Constitution created it and can issue Executive Orders only within the capacity of that office, to bring into existence an order that effectively nullifies the very authority that created his office in the first place?

If he did, would it not render him a pretender to the office? Would it not also abolish his very reason for existence?

Read carefully: If the President acts to nullify the very authority that created his office, does he not render himself without office, and without authority? Just where does the Office of President get its authority in the first place?

From Mars?

Are the people of this nation so freaking STUPID as to believe that ONE MAN, with the stroke of a pen, can render the Constitution NULL AND VOID — especially when his whole authority flows from the Constitution in the first place?

Get this: If the morons in government render the Federal Constitution NULL AND VOID, they do not have a reason for existing in their jobs — BECAUSE THE WHOLE REASON FOR THEIR POSITIONS FLOWS FROM THE CONSTITUTION ITSELF!

Talk about cutting your own throat . . .

The whole reason they try to PRETEND what they are doing is Constitutional is because they know that without that pretense they are operating without reason for existence. Hence, they are pretenders and an illegal operation, subject to be removed from power at the slightest whim. In fact, they could be, and should be considered enemies of the United States.

So it is that they need the cover of the Federal Constitution, and will do nothing that would openly show the document to not be in force and effect.

It really does make me wonder just who is on what side, and if all that “education” is really just a cover for the total loss of common sense in America.

I am reminded of Obadiah:

How are the things of Esau searched out! how are his hidden things sought up! All the men of thy confederacy have brought thee even to the border: the men that were at peace with thee have deceived thee, and prevailed against thee; they that eat thy bread have laid a wound under thee: there is none understanding in him. Shall I not in that day, saith the LORD, even destroy the wise men out of Edom, and understanding out of the mount of Esau? (Obadiah 6-8)

Just substitute “America” everywhere the names “Edom” and “Esau” appear — it fits.

BTW, the EO is unconstitutional — but it doesn’t overthrow the Constitution itself. No, all that has to happen is to call a spade a spade and hold the “Enlightened One’s” feet to the fire and make him rescind the EO.¹

One last point: It should be noted (and Mama Liberty especially take note) that the only way the Federal Constitution can be nullified and overthrown is if the American people and the several states REFUSE TO ENFORCE IT!

1. He needs to rescind a whole bunch of other things too, but I am not going to address those here. [↩]