- Is constitutional enforcement constitutional?
- Is the Supreme Court our Supreme Ruler?
- Did the Civil War settle that the feds are our masters?
- But what about federal funds?
- Doesn't the Supremacy Clause make the feds supreme?
- Doesn't Texas have to obey the Supreme Court?
- Texas can't act alone without other states, can it?
- The problem is that the Tenth Amendment is defective, right?
- You are really talking about civil disobedience, right?
- When Texas arrests feds, won't they remove the case to federal court?
- The 14th Amendment made states impotent, right?
- Unequal Application of the Law?
I have heard people say that nullification and interposition (which are the basis of constitutional enforcement) are nowhere to be found in the Constitution. What do you say to that?
Under the Tenth Amendment and the structure of the Constitution, if a power is not delegated to the federal government in the Constitution, that power is reserved to the states respectively. Since nullification and interposition are not delegated to the federal government, nor are the states prohibited from doing so, the states retain the power of nullification and interposition.
Additionally, Article VI of the U.S. Constitution requires every government official at all levels in all branches of the government to "support this Constitution." Article 16, Section 1 of the Texas Constitution codifies that oath in Texas to say that every government officer whether elected or appointed shall swear to "preserve, protect, and defend" the U.S. Constitution and the Texas Constitution.
If you are sworn to protect the Constitution, and you see it being violated, you are duty bound to use the powers of your office to stop the violation.
The Supreme Court has said in numerous cases that it is the final arbiter of constitutional meaning, so declarations of constitutional meaning by Texas will have to yield to what the U.S. Supreme Court says. Don’t you agree?
The states created the federal government. The states are the masters, and the federal government is the agent of the states, not the other way around.
Nowhere in the Constitution is the power of final arbitration of constitutional meaning delegated to the federal judiciary. Any Supreme Court opinions to the contrary are interpretations of the text. An interpretation by the Supreme Court saying that the Supreme Court is the final interpreter is circular reasoning, and is contrary to the fact that the states are supreme and the federal government is the agent of the states.
The unconstitutional notion that Supreme Court justices are our supreme rulers is what has gotten us into this upside down mess where the federal government is considered by itself and many others to be supreme.
The supremacy clause in Article VI says that it is the Constitution and laws in pursuance thereof that is supreme. It does not say that the federal government or the U.S. Supreme Court is supreme.
The Civil War settled the issue that the federal government is supreme and the states have no power, right? The Civil War settled the issue that nullification is improper, right?
Might does not make right. Nor does it invalidate proper reasoning about the meaning of the Constitution or the intent of the framers.
The War Between the States was fought mostly over secession. Constitutional enforcement is a different doctrine than secession. Both secession and constitutional enforcement rest on the sovereignty of the states and the enumerated powers of the federal government in the Constitution. But secession dissolves the union, while constitutional enforcement preserves it. Neither secession nor constitutional enforcement is prohibited to the states in the Constitution, so by the logic of the Tenth Amendment, the states individually retain those powers.
Constitutional enforcement is a doctrine whereby the states use the powers not delegated to the federal government (and thus reserved to them) to stop unconstitutional federal acts.
South Carolina complained in its secession declaration that one of the reasons it was seceding was because northern states like Wisconsin were resisting the unconstitutional Fugitive Slave Act that denied due process to those accused of being runaway slaves. So, if the North won, and might does make right, then constitutional enforcement, sometimes also called nullification and interposition, was vindicated by the Union’s victory over South Carolina!
If we start enforcing the Constitution against the feds, won’t the feds just cut off federal funds to Texas?
Texas should not be dependent on funds from the federal government and the strings attached to them. It saps our will to act like the sovereign state that we are.
But each authorization of federal funding has its own conditions attached. To attach other conditions after appropriation would be a violation of the law appropriating the funds. If the feds did violate the law in that manner, it would make it even more clear how illegitimate the actions of the federal government are.
The Constitution's Supremacy Clause makes the federal government and the Supreme Court the master of the states, right?
No. The Supremacy Clause, found in Article VI of the Constitution says:
“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.”
It is the Constitution and constitutional laws that are supreme! Not the federal government, and not the Supreme Court.
The hierarchy of power in the United States is that the people are the masters of the states. The states are the creators and masters of the federal government.
Because the Supreme Court has ruled that Texas’ interpretation of the Constitution and the power of the federal government has to yield to the Supreme Court, the only way to reign in the federal government is to amend the Constitution to take back some power for the states. A constitutional amendment that would allow a super majority of states to overturn a federal law or Supreme Court opinion is the way we should exercise state sovereignty, right?
The Tenth Amendment explicitly reserves powers not delegated to the feds, to the states respectively. Respectively means individually or unilaterally. That is because each state is a sovereign. Sovereigns who have signed a compact to create an agent (the federal government) do not yield their interpretive power of the compact to the agent, or even to the fellow sovereigns, without losing their sovereignty.
The root cause of the problem is that the Supreme Court has usurped the power of final arbitration of constitutional meaning. To solve that problem, we need to address it head on, and explicitly state that the Supreme Court is not delegated that power in the Constitution.
This means that the Lone Star State all by its lonesome already has the power to interpret the limits of its agent, the federal government, under the constitutional compact and to enforce that against federal agents within Texas.
To agree to new terms in the compact that gives away this sovereignty will make more difficult solving any one unconstitutional act by the feds and the root problem of federal overreach even worse.
Doesn't Texas have to rely on other states to resist misinterpretation of the Constitution by the federal government?
Under the Tenth Amendment, Texas can act unilaterally to interpret and defend the Constitution.
The Tenth Amendment says that the powers not delegated to the federal government are "reserved to the states, respectively." Respectively is the opposite of collectively. Respectively means individually, or unilaterally. States are sovereigns, which means that each state can go its own way, and exercise its own independent judgment.
The governor has proposed in his book, Broken but Unbowed, an amendment to the Tenth Amendment to delegate the power to interpret the Tenth Amendment and the limits of federal power to the federal judiciary. He calls delegating the power to the federal judiciary to place limits on the federal government – enforcement. He thinks that by adding one word to the Tenth Amendment along with the delegation of power to the judiciary, that from here forward the Supreme Court will no longer misinterpret the Tenth Amendment. He thinks adding one word to the current text of the Tenth (“expressly”) to read “Powers not expressly delegated to the United States . . .” will tell future Supreme Courts that we really mean it this time, and that this will stop them from distorting the Constitution in the future. Do you agree?
No. The problem is that the Supreme Court has deliberately misinterpreted the existing Constitution in the past. Changing some words and actually delegating them the power of final arbitration that they have previously unconstitutionally usurped will just make the problem worse, not solve the problem.
It is the Supreme Court that is the problem. Giving it different words to misinterpret will not solve the problem.
When you talk about resisting federal tyranny, isn't that just civil disobedience?
No. The people being disobedient here are the feds who disobey the supreme law of the land, the Constitution!
Disobedience implies a master and a servant. Servants disobey masters. We, the people, and the state of Texas are not the servants of the feds. The feds are our servants.
Texas and its people are the masters of the feds. It is up to us to make sure that the feds obey us and what is supreme - the Constitution.
If the Texas Sovereignty Act passes, and the legislature and the governor declare a federal act to be unconstitutional, and a federal agent attempts to enforce the unconstitutional act in Texas, and a Texas lawman arrests and a Texas prosecutor prosecutes a federal agent, what is to stop the federal government from removing the case to federal court and to drop the charges?
First, the federal Ninth Circuit issued an opinion that it was improper to remove the state of Idaho murder case against Lon Horiuchi for the murder of Vicki Weaver at Ruby Ridge. Even if that improper action would occur, the state does not have to stop its case, nor does it have to allow federal marshals to remove the prisoner.
Enforcement of any law, especially the supreme law, requires the courage to stand up to the lawbreakers when they resist being held to account.
What you say about the original Constitution and the Tenth Amendment may be true, but the Fourteenth Amendment made Supreme Court supreme over the states. What do you say about that?
The Fourteenth Amendment adds prohibitions on state action to the original list of prohibitions on state activity. It does not allow states to violate the due process rights, equal protection of the law, or immunities and privileges of citizenship of its own citizens. This is not a blanket statement of dominance by the feds over the states. And, the branch of the federal government tasked with enforcing those prohibitions is the U.S. Congress, not the federal judiciary.
Won't jury nullification lead to unequal application of the law?
We will take an occasional chance at liberty and justice as opposed to equal application of tyranny.
Any system of justice is going to have inconsistent application to similar circumstances. That exists, today.
Jury nullification pursues the real goal - liberty and justice. Hopefully for all, but even if we fall short of liberty and justice for all, it is better to increase the likelihood for all of obtaining it. That is what jury nullification does.