Some Folks Still Don’t Get It

Perhaps the sentiments contained in the following pages, are not YET sufficiently fashionable to procure them general favour; a long habit of not thinking a thing WRONG, gives it a superficial appearance of being RIGHT, and raises at first a formidable outcry in defense of custom. Thomas Paine

In a time of universal deceit – telling the truth is a revolutionary act. George Orwell

I have this image that I attach to most of my e-mails that shows a Minuteman and the following comment, “You wonder why I’m angry at what’s going on in this country? I wonder why you’re not!” I know there are quite a few people who are angry, but there simply aren’t enough of them. Sure if you were to take a poll the results would show that a good majority of the people have a poor opinion of how their government is handling the affairs of this nation, but the problem is that most of them either simply don’t understand what the true function of their government is, or they simply don’t care. They vote strictly along party lines then whine and complain when nothing seems to get better in this country.

Most people in this country believe that their government is all powerful and that they are duty bound to obey the laws that it enacts. That simply is not true and there is plentiful evidence to prove that I’m correct in saying so.

People are always blaming the government for what is wrong in this country, when the truth is that they should take a moment to consider who is really at fault for all the problems this country faces. The truth is that it is the people who are to blame. While it is true that our government enacts these laws, yet aside from our president, who can only serve two terms, a good many of our representatives in Congress are repeatedly re-elected and it is they who enact these laws. We do not hold them accountable for their actions, and we meekly obey these laws that, for the most part, they have absolutely no authority to enact. If we would just grow a set of balls and resist these oppressive laws things just might get better in this country.

You know, in 1781 Thomas Jefferson said that “It is the manners and spirit of a people which preserve a republic in vigor. A degeneracy in these is a canker which soon eats to the heart of the laws and constitution.”

You may have heard the old question, which came first, the chicken or the egg? Well let me rephrase that to ask, which came first the government or the people? People lived in America for nearly 200 years before our current system of government was established. Our Founders fought a war to free themselves from the rule of a tyrant and it would be asinine to think that they would then proceed to create a system of government that was just as tyrannical as the one they had fought a war to free themselves from.

Our government was created by our Founders and for it to become functional it had to be ratified, (accepted by vote) by the people of this country. We have taken to calling those people in our nation’s capital politicians, but in truth they are public servants…and they work for us.
George Washington, our very first president under this newly created system of government once said that “The power under the constitution will always be in the people.” Almost half a century after our Constitution was ratified Supreme Court Justice Joseph Story would write, “In our future commentaries upon the constitution we shall treat it, then, as it is denominated in the instrument itself, as a CONSTITUTION of government, ordained and established by the people of the United States for themselves and their posterity… Those who administer it are responsible to the people… It may be altered, and amended, and abolished at the will of the people. In short, it was made by the people, made for the people, and is responsible to the people.”

Yet today the people of this country hardly seem to notice that damn near everything their government is currently doing is a violation of the authority granted them by the Constitution. Before the state of Virginia ratified the Constitution James Madison addressed the delegates to the ratifying convention and clearly stated, “[T]he powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.”

C’mon people, that is not that difficult to understand…is it? Yet when we vote for people most of the time we look for qualities that we admire or respect, or we look for those making the most compelling arguments as to why we should vote for them. Hardly ever do we stop to ask ourselves if any of the things they are campaigning on are actually constitutional.

Back in 1951, Supreme Court Justice William O. Douglas would rule, “It is not enough to know that the men applying the standard are honorable and devoted men. This is a government of laws, not of men….” The law that our elected representatives are bound by oath to uphold is…duh…the Constitution. And what do we call people who break the law? Why criminals of course. In his Notes on Virginia, Thomas Jefferson wrote, “[The purpose of a written constitution is] to bind up the several branches of government by certain laws …”

But if a majority of the people do not understand the law which binds our government, or if they are content to let them overstep their authority and enact laws which they feel is in the country’s best interests, what recourse does the minority, (those who still expect that the Constitution be adhered to) have?

But there is something else, a part of Jefferson’s quote that I intentionally left out until now. The entire quote reads, ” [The purpose of a written constitution is] to bind up the several branches of government by certain laws, which, when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.”

Now talking about rebellion, particularly in this day and age, may land a person in hot water, yet it is/was something that was commonly accepted as a right the people held should their government grow too big for its britches. Again, Supreme Court Justice Douglas said, “The right to revolt has sources deep in our history.”

In 1775 the Second Continental Congress issued a document entitled the Declaration of the Causes and Necessities of Taking up Arms. It was their justification for taking up arms against, what was at the time, their government, the British Empire. From that document I quote, “Honor, justice, and humanity, forbid us tamely to surrender that freedom which we received from our gallant ancestors, and which our innocent posterity have a right to receive from us. We cannot endure the infamy and guilt of resigning succeeding generations to that wretchedness which inevitably awaits them if we basely entail hereditary bondage on them.”

Not all the colonists supported going to war against the English; there were loyalists who wished to stay under British rule, and there were those who didn’t really care one way or another. But there were those, about 1/3 of the people, who felt that it was necessary to seek independence from what they considered an oppressive government. Those who felt that way, as well as those who affixed their names to our Declaration of Independence were considered traitors, and would have been hung had they been captured by the British. As the final sentence of the Declaration of Independence states, “And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.”

It’s clear that our country was founded by men of principle who stood up to tyranny and oppression, and as Samuel Adams would later write, “The liberties of our country, the freedom of our civil constitution are worth defending at all hazards; and it is our duty to defend them against all attacks. We have received them as a fair inheritance from our worthy ancestors: they purchased them for us with toil and danger and expense of treasure and blood, and transmitted them to us with care and diligence. It will bring an everlasting mark of infamy on the present generation, enlightened as it is, if we should suffer them to be wrested from us by violence without a struggle, or be cheated out of them by the artifices of false and designing men.”

Yet today we go about our lives in fear of breaking the law, when there is a good chance that the laws we are so afraid of breaking are unconstitutional. Why is it that a land, supposedly built upon the concept of freedom and liberty, that the people fear their servants? There is a quote that is attributed to Jefferson a lot, although he never actually said it. Yet it still rings true, “When governments fear the people, there is liberty. When the people fear the government, there is tyranny.”

As Justice Douglas said, this is a government of laws. Yet in truth it more closely resembles something stated by the Frenchman Frederic Bastiat in 1850, “The law perverted! And the police powers of the state perverted along with it! The law, I say, not only turned from its proper purpose but made to follow an entirely contrary purpose…Instead of checking crime, the law itself guilty of the evils it is supposed to punish!”

The Congress is supposed to only write laws regarding matters which the Constitution grants them the authority to legislate upon. The president is supposed to veto laws which he finds to be not among the enumerated powers granted Congress. And, according to the Supreme Court, they too are supposed to rule based solely upon the Constitution.

In the case of Mugler v. Kansas, the Court ruled, “The courts are not bound by mere forms, nor are they to be misled by mere pretences. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the legislature has transcended the limits of its authority…it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.”

Yet if a majority of the people are ignorant as to the law, or if they in fact support these laws even though they are clearly not among the powers granted government, does that make these laws binding upon those who oppose them?

I say no, they are not binding upon us, and I can prove it.

In Federalist 78, Alexander Hamilton declared, “No legislative act contrary to the Constitution can be valid. To deny this would be to affirm that the deputy (agent) is greater than his principal; that the servant is above the master; that the representatives of the people are superior to the people; that men, acting by virtue of powers may do not only what their powers do not authorize, but what they forbid. It is not to be supposed that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. A Constitution is, in fact, and must be regarded by judges as fundamental law. If there should happen to be a irreconcilable variance between the two, the Constitution is to be preferred to the statute.”

Former Supreme Court Justice Potter Stewart stated, “The right to defy an unconstitutional statute is basic in our scheme. Even when an ordinance requires a permit to make a speech, to deliver a sermon, to picket, to parade, or to assemble, it need not be honored when it’s invalid on its face.”

And then there is this, taken from the 16th American Jurisprudence, the definitive Encyclopedia of the law, “The general misconception is that any statue passed by legislators bearing the appearance of law constitutes the law of the land. The U.S. Constitution is the supreme law of the land, and any statute, to be valid, must be in agreement. It is impossible for both the Constitution and a law violating it to be valid; one must prevail .This is succinctly stated as follows: The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it. As unconstitutional law, legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle as it would be had the statute not been enacted. Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no right, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…A void act cannot be legally consistent with a valid one. An unconstitutional law cannot operate to supersede any existing valid law. Indeed, in so far as a statue runs counter to the fundamental law of the land, it is superseded thereby. No one is bound to obey an unconstitutional law and no courts are bound to enforce it.”

But, were you to find yourself in court because you disobeyed an unconstitutional law, do not for a moment think that you could quote that and find yourself free of all charges against you. That is why the people must stand up for justice, and support the law. And that is where the duty of the jurors come in.

Few people are aware of the concept of jury nullification, but it is a principle firmly rooted in our nation’s history. Jury nullification is basically the jury, or a number of jurors, apply the principle contained in the 16th American Jurisprudence, and find that the law is, in fact, no law at all.

John Jay, our nation’s first Chief Justice of the Supreme Court declared, “The Jury has a right to judge both the law as well as the fact in controversy.”

Harlan Stone, the 12th Chief Justice of the Supreme Court also declared, “If a juror feels that the statute involved in any criminal offense is unfair, or that it infringes upon the defendant’s natural god-given unalienable or constitutional rights, then it is his duty to affirm that the offending statute is really no law at all and that the violation of it is no crime at all, for no one is bound to obey an unjust law.” (my emphasis)

But to do that requires courage. Judges, especially of late, have shown a clear disregard for the Constitution, stating that the jurors must apply the law as explained to them by the judge. Yet in U.S. v. Dougherty, (1972), the Court ruled, “The pages of history shine on instances of the jury’s exercise of its prerogative to disregard instructions of the judge…”

You have to remember that judges are also bound by the Constitution, regardless of whether they choose to apply it in court. It therefore falls to the jurors to ensure that it is upheld. For, as Thomas Jefferson once said, “If [as the Federalists say] “the judiciary is the last resort in relation to the other departments of the government,” … , then indeed is our Constitution a complete felo de so. … The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they may please.”

Our country; the people and our government, have forgotten, or chosen to ignore, the Constitution and the limits it imposes upon the government it established. It is up to those of us who love liberty, and the principles which guided our Founders in establishing our Republic, to stand up for it, even in the face of overwhelming opposition.

As George Washington once said, “The name of AMERICAN, which belongs to you, in your national capacity, must always exalt the just pride of Patriotism, more than any appellation derived from local discriminations.”

In America today that means disagreeing with a vast majority of the people in this country. Yet as John F. Kennedy once said, “In the long history of the world, only a few generations have been granted the role of defending freedom in its hour of maximum danger. I do not shrink from this responsibility – I welcome it.”

Or to quote Patrick Henry, “Give me liberty or give me death.”

And I truly apologize for the length of this, but I had a lot of facts I needed to provide to get my point across.

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