Jefferson & Madison’s Answer to Federal Overreach

December 18, 2015 Frank Kuchar

Rumors are swirling that once again President Obama is going to not only exceed federal constitutional authority, but also his presidential authority by issuing additional gun control regulations via executive order. Since Congress lacks the will to carry out its constitutional obligation to impeach him and remove him from office, what alternatives are left to us? To answer that question I want to take us back to the early years of our republic when the Federalists controlled the presidency (John Adams) as well as both houses of congress.

In June 1798, Congress passed and President Adams signed The Alien and Seditions Act, which was an abusive violation of individual rights and the Constitution as far as some of the citizens of Kentucky and Virginia were concerned. In response Jefferson wrote on behalf of the state government of Kentucky what we today know as “The Kentucky Resolutions of 1798”, and he convinced Madison to do the same for the state of Virginia (“The Virginia Resolutions of 1798”). In both of these documents they laid out the case that this legislation was in violation of the Constitution. Jefferson more stridently declared no less than five times that the state of Kentucky held the legislation to be “altogether void and of no force.”

Madison’s draft was not as forceful as that of Jefferson’s and was much shorter, but in both cases these two giants of constitutional republicanism and federalism appealed to their sister-states to join them in resisting this law. Madison summed up the appeal at the end of his resolutions with these words:

“…the General Assembly [of Virginia] doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each, for cooperating with this State in maintaining unimpaired the authorities, rights, and liberties, reserved to the States respectively, or to the people.”

In his appeal, Jefferson went so far as to declare that “every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.” Yet he also expressed the same approach as Madison that all of the states should band together in opposition to this usurpation by the “General Government” – “…that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.”

When Obamacare was enacted over thirty states filed suit with the Supreme Court as to its unconstitutionality, and we all know how Chief Justice Roberts’ twisted logic blunted that effort. What should have been done regarding that legislation, and as Jefferson stated about “these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution“, was to band together with the legislatures of each of them issuing the same kind of declaration as Jefferson and Madison did on behalf of Kentucky and Virginia in 1798.

Unfortunately, Jefferson’s and Madison’s pleadings fell on deaf ears, and so the Act remained in effect until Jefferson was elected president and the Democrat-Republicans gained control of Congress in 1801 when they repealed the law. However, consider this scenario: over 30 states (or more) join hands and stand up as a united group against these onerous overreaches of the general government, be it Obamacare, the EPA, you name it; what would be the likelihood that Washington could roll over that many states like they might be able to do to one or a few?

If you read The Federalist Papers, the debates of the Constitutional Convention and the state ratifying conventions as well as the writings of the Anti-Federalists, you will hear one common argument among them all – namely, “in our political system…the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority” (Alexander Hamilton, Federalist #28). It’s time for the states today to stand upon the shoulders of Jefferson and Madison and follow their lead.

-December 18, 2015

For Whom Was the Constitution Written?

December 12, 2015 Frank Kuchar

Presidential candidate Donald Trump has been under fire for his statement that we should ban all Muslim immigration and visa visitors for a temporary span of time until we can better vet the background of these individuals. I have heard several criticisms of this proposal that are both ludicrous and ignorant. Senator and presidential candidate Marco Rubio has stated that such a prohibition is unconstitutional. Others state that it violates the principle of freedom of religion as espoused in the first amendment. A third claim made Thursday evening by former NYC Mayor Rudy Giuliani, was that “we do not have the right” to prohibit a group or class of individuals from entry into our country.

The first objection that it is unconstitutional belies a lack of understanding of our Constitution (something I would think an attorney, Senator and President-wanna-be should know). To support this assertion we must ask “For whom was the Constitution written?” One needs look no further than the Preamble to the Constitution to ascertain the answer to this question.

“We the People of the United States, in Order to…secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

It was the citizens of the several states through either direct election (Rhode Island) or through their representatives in either their legislatures or conventions who comprised “We the People.” This did not include everyone who resided in the territory of the states at that time. It wasn’t until the passage of the 13^th, 14^th and 15^th amendments that the securities of the Constitution were expanded to those previously enslaved (both black and white). The Constitution was ordained and established for the citizens of “the United States”, not “we the people of the world.” The Constitution says nothing about our obligation or requirement to admit any and all who wish to enter our borders.

Having established that the sureties given in the Constitution are for citizens, not for any and everyone who comes or wants to come to our shores, the answer to the second objection is also rendered moot. However, I will make just a couple of brief points on it specifically. There are only three references to religion in the Constitution. Article VII references the date of the finalization of the Constitution as being “in the Year of our Lord,” a common phrase that has nothing to do with the practice of a religion. The first amendment has two clauses referencing religion, namely that

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;”

By prohibiting the importation of those practicing Islam the federal government is not “establishing a religion” for the United States. Nor is the government prohibiting these individuals from “the free exercise” of their religion – they are at liberty to practice it in their home countries or some other Islamic country. It is no different than when a couple of years ago we prohibited individuals from countries experiencing an outbreak of Ebola from migrating en mass to our shores.

Finally, the statement that we have “no right” to prohibit any group of individuals from entering our land is patently absurd. Coming to the United States and living among us is a privilege, not a “right.” A true “right” is of the caliber identified by Jefferson in our Declaration of Independence, i.e., one that comes from our Creator. Migrating to one country from another falls far short of this bar. I might add to this that citizenship is also in this category inasmuch as citizenship can be taken away or revoked by the government since it is the entity that bestows citizenship (see Article I, Section 8, Clause 4 of the Constitution). It is the inalienable “right” of the citizens of this country to be secure in their life and liberty and it is the responsibility granted to the government by those citizens to make those rights secure, which includes keeping out those who might do harm to those rights.

One final question to be addressed, is “Why not adopt the position of Senator Rand Paul and only limit Muslims from a list of countries known to pose a threat?” To answer this I merely point to the recent atrocities in Paris, France. Some of those perpetrators came across the French border from other European countries. There are millions of Muslims living in France, England, Sweden, the Netherlands, etc., and if these countries were not part of the “list” of forbidden countries, then there would be no way we could prevent Muslim radicals from entering the US from one of those nations.

It Is past time that our leaders quit being so “politically correct” and began looking out for the welfare and safety of Americans first. If you would not throw open the doors to your home and let anyone and everyone enter and live with you without first thoroughly ensuring they posed no threat to your family, then neither should we do so to our country, “America, my home sweet home.”

-December 11, 2015

The Refugee Crisis: Showdown between Federal and State Sovereignty

December 4, 2015 Frank Kuchar

A number of states are forbidding the federal government from settling within their jurisdictions some of the thousands of Syrian refugees President Obama wants to admit into the US. The President has declared that he will force the states to accept however many of these refugees as he sees fit, and so the stage is set for a major constitutional showdown, like two gunslingers in an old western movie squaring off against one another.

The outcome of this confrontation is far more critical to the future of what’s left of our republic than the welfare of these refugees. It goes to the very heart of the structure of our federally constituted republic and whether or not we shall finally fall into the pit feared by the Anti-Federalists at the time of the ratification of the Constitution by becoming a singular nationalized country instead of a union of independent, sovereign states.

To begin with, nowhere in the Constitution is the federal government granted the authority over the matter of granting refugees admittance. You can read it forwards and backwards, but that enumerated power is not stipulated. This being the case, then this authority must be a power retained by the citizens of the several states, who in their capacity as a body politic, according to the tenth amendment, have every right to make the determination as to the settlement of refugees within their borders.

How is it then that we have reached this juncture of a constitutional crisis over who has authority over immigration policy? Article I, Section 8, Clause 4 of the US Constitution stipulates that “Congress shall have the power…to establish an uniform Rule of Naturalization,…” At the time of the writing of the Constitution, there was a distinct difference in meaning between the terms “naturalization” and “immigration”, and they were not synonymous. For the first one hundred years of our history the federal government was only concerned with legislation which laid down the requirements aliens would have to satisfy to become citizens of the United States, while the states enacted their own laws regarding who would be permitted to enter their borders. It was not until the late 1800s that Congress began to enact immigration legislation. Over the past 130 or so years the courts have gradually upheld the federal government’s assumption of this power, but with varying degrees of suspect constructions (which makes this assumption on the part of the federal government even more dubious). The conventional argument is that the naturalization clause of the Constitution includes the authority over immigration as well, but such was not the meaning understood by the original authors of the Constitution. Note the absurd contortion Justice Kennedy resorted to in upholding this argument in the 2012 case of Arizona v. United States:

“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. … This authority rests, in part, on the National Government’s constitutional power to ‘establish an uniform Rule of Naturalization,’ U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations….”

In order to substantiate that naturalization includes authority over immigration, he has to fall back on the authority of the federal government to deal with foreign nations. Really? Such so-called reasoning flies in the face of etymology and our early history (which would be the best indicator of which “sphere of influence” this matter resided).

In light of this and President Obama’s threat, we need to step back and consider the structure of the relationship between the federal government and the states as it was originally intended. In his throwing down of the gauntlet over this issue, the President is claiming that the federal government can set aside the wishes of the citizens of a state in regards to matters that are constitutionally retained by them.

The question becomes, ”Does this assertation comport to the form of the union created by the Constitution?” Our system vests sovereignty in but one place – the people of the several, yet united, states. The sovereign people of the states agreed to grant authority (or limited sovereignty if you will) to two spheres – the federal and state governments – via constitutions. It is in the US Constitution we see the spheres of authority between these two entities clearly delineated, and that neither “sphere” is permitted to invade that of the other.

In Construction Construed, and Constitutions Vindicated, published in 1820, John Taylor of Caroline, after quoting both Madison’s and Hamilton’s comments to this point in The Federalist Papers, succinctly summed up this principle with these words:

“The co-ordinacy of institution, the independence of each other, and the mutuality of the right of construing the federal constitution, are thus recognised and asserted, as existing in the federal and state governments; and the principle, which pervades the whole, must also pervade the parts. If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments, whilst acting within their respective spheres, no part or department of that government can exert a supremacy over, or exact a subordination from, the corresponding parts or departments of the state governments.”

To apply this to our current showdown between the states and President Obama, if the matter of admitting refugees is a matter left to the discretion of the states, and “If the entire federal government possesses no supremacy over, and can require no subordination from the entire state governments,” then for Obama to claim he can force the states to do otherwise is to turn Taylor’s principle on its head, namely, that if one part of the federal government can eviscerate the authority of the states in one matter, then the entire federal government can do likewise in all areas, and the significance of even the semblance of states’ existence is reduced to the theatre of the absurd.

It may well be that having the federal government control those permitted to immigrate into the United States, especially in this day and time, is the best course of action; but as Chief Justice John Marshall stated in McCulloch v. Maryland in 1819, “The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.”

-December 4, 2015