OK, so this is yet another final blog. So forgetting, for the moment, what’s likely to happen to the Great Experiment within the next ten years (when maybe we’ll be blogging on stone tablets again), here’s how I think things generally go, specifically what happened here, and what to do about it if we’ve any sense left.
You see, it is the nature of human governments to become ungoverned and oppressive. Our default state is sin, slavery, genocide and war, after all. Our nations’ founders knew this and devised a limited, federal form of government with divided powers opposed by checks and balances…and they wrote down the laws in plain speech to be read, understood and obeyed without exception.
With a few notable and sometimes ghastly exceptions (hey, we’re a bad species), it worked better than anything before or since. But as with anything good, decay was inevitable on this fallen world.
In terms of rate of improvement (rate of increase of standard of living, leisure time and productivity; rate of reduction in working hours, disease and hunger) the USA reached its peak around 1912, started leveling off and then reversing thereafter. I think that this is because Jim Crow and “big government” in the form of modern socialism was just then really taking hold. But I believe the point is that previously, most Americans were simply left alone such that they could seek their own success unimpeded.
But Americans are now working longer and harder (20% longer hours with 2 weeks shorter vacations just since 1979) for less and less while the government takes more and more.
The Land of the Free now has the world’s highest percentage of citizens in prison. The Home of the Brave now has more lawsuits than all the other nations on earth combined.
By September 11, 2001, we are told, it took only a handful of men armed only with box-cutters to topple our house of cards and make us fundamentally change our notions of freedom and global citizenship.
The USA hasn’t legally declared a war since WWII. US Rep. Henry Hyde said that the constitution is, “Inappropriate, anachronistic, it isn’t done anymore.” So we’re now warring in clear violation of Article I, Sections 8:10, and 10:3 of our U.S. Constitution as a “humanitarian” effort to spread Freedom and the Rule of Law while we have given up those things here at home.
Why do we tolerate this?
The signers of the Declaration of Independence believed “…All experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”
Yet they also insisted that governments derive “their just powers from the consent of the governed.”
So, “whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”
It is time to do something, certainly. Fortunately, in this country there are precedents for peacefully reasserting the U.S. Constitution and Rule of Law.
In response to the Alien Act and Sedition Act, the legislatures of Kentucky and Virginia passed resolutions in 1799 demanding that government keep the terms of its contract (the U.S. Constitution).
From the Virginia Resolution: “…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.”
From the “plain sense” of the Constitution these men insisted that “…the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States.”
This is quite opposed to the ruling by District Court Judge David Hamilton that prayer and speech in the Indiana General Assembly must be modified, restrained, abridged and cancelled.
The signers of the Kentucky resolution declared that “…if those who administer the general government be permitted to transgress the limits fixed by that compact,” that it would be their duty to nullify the union.
In other words, while the ink was still wet on the U.S. Constitution, some of our founders (notably Jefferson and Madison who helped author the Kentucky Resolution and Virginia Resolution) sensed infractions against the contract and demanded redress.
Just a few years later however, in 1803, a mostly harmless ruling in a minor issue became a major problem.
In Marbury v. Madison, The Supreme Court under Chief Justice Marshall decreed that the Supreme Court’s power to issue writs of mandamus, as granted by the Judiciary Act of 1789, were unconstitutional. In other words Marshall used the Constitution, as written, to restrain another branch of federal government (the heart of the case) as well as his own court. This much was proper.
And in context, it was proper for Marshall to say, as he did, that “It is emphatically the province and duty of the judicial department to say what the law is.”
Sadly, those words have been taken to mean that the Supreme Court is empowered to change the meaning of the Constitution; and that is not what the founders intended, or what Marshall meant.
Civil law means what it says, and judges should say so. But the power to “interpret” law as anything other than what was intended by congress was never given to courts by the U.S. Constitution. Only common law is determined in court; so what Marshall said would have a power grab, and probably would have been stopped…if it weren’t for the fact that Marshall himself knew better than what we’ve made of his words.
For he also said in that same ruling that “…the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.”
The civil law of the constitution was exhaustively explained in the Federalist and Antifederalist Papers, Madison’s Diaries, letters and books written by the men that wrote the Constitution itself. No interpretation is necessary or legal. We can change it or obey it; nothing else is legal, and nothing else works.
That is, after all, the Rule of Law, right?
Yet with Marbury v. Madison began a long, but initially very subtle and slow train of abuses and usurpations by the judiciary that we must now correct.
Because as the inevitable result of the statement, ““It is emphatically the province and duty of the judicial department to say what the law is” came the famous question, “It depends on what the meaning of the word ‘is’ is.”
This is the backdrop for what I’m proposing for an Indiana Resolution.
We have foolishly asked politicians for new laws, new restraints, when the whole of the problem is that politicians completely disregard law and anything like restraint.
Perhaps it’s too simple. Perhaps it’s that we’ve no experience with governed government. Whatever the case, since 1799 we have never demanded that our politicians simply obey the written law, as written.
So here’s what I propose:
James Madison and Thomas Jefferson understood the letter and intent of the Constitution for the United States of America;
These men, working on behalf of the states of Virginia and Kentucky (respectively) authored the “Virginia Resolution” and “Kentucky Resolutions” of 1798 to 1799;
The legislatures of the states of Virginia and Kentucky passed these resolutions less than ten years after their ratification of the Constitution for the United States of America, affirming those states’ understanding of the letter and intent of that contract;
That this Indiana Resolution affirms the plain sense of those resolutions insomuch as:
a. The States are the owners and defenders of federalism.
b. The Constitution for the United States of America is a contract to be obeyed as written.
c. The federal government has no legal right to exercise powers not specifically granted to it by the Constitution for the United States of America.
d. Any powers exercised outside constitutional authority are legally void, and should be allowed no force or effect.
That the General Assembly of Indiana, having sworn or affirmed oaths to support both state and federal constitutions, does unequivocally support those contracts;
That the powers not unambiguously and specifically delegated to the United States federal government by the Constitution of the United States, nor prohibited by it to the states, are held by the states, and/or by the people.
That the states who form the union and who in compact validate the US Constitution and the federal government thus formed, being by the US Constitution both legally independent and sovereign, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.
That the Governor be asked to transmit a copy of the foregoing Resolutions to the President of the United States and to the Governor of each of the other states, with a request that the same may be communicated to the Legislatures thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.