INDIANA RESOLUTION of 2009?

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:

 

Indiana Resolution

 

WHEREAS

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.

 

RESOLVED

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.

 

 

Government ain’t no business…

Imagine if Microsoft had armed forces and was authorized to use them. Imagine if Starbucks had even one Stealth Bomber, and was allowed to use it however it sees fit.

This is what I think of when I hear a politician say “…we need to run government like a business!

I understand and appreciate the intent. Nobody is more 100% Free Market than I am. But here’s the thing: Free Market and Government are opposites. Freedom and politicians are opposites. The free market, in order to be free, means free choices…no violence allowed. And government is, no matter what we prefer to think, violence. 

Government is not pleasant words; it is policemen and jails and tanks and tasers and bombs. And these things, while always used against citizens to some degree here in America, are used against civilians more and more every single day.

Government, when it chooses to serve its proper role, uses its violence to keep Microsoft from using The Bomb on its competitors. More frequently, however, government becomes the arms dealer and power broker that decides who succeeds and who dies (literally as well as figuratively).

Politicians of course become intoxicated with this power. That’s why we have constitutions, to protect us from what politicians are all about (you know, power, corruption, slavery, genocide and war).

Of all our founders, George Mason is my favorite, with the other Antifederalists like Patrick Henry not far behind. But my favorites are not well known, and I’ll not bother to champion them so long after their death.  And I’m not at all a fan of everything that Thomas Jefferson actually did. But as I do certainly and humbly tip my hat to what he’d said (and accomplished with his words), I’ll offer up some of what just this single “founding father” said about the Rule of Law versus the Rule of Tyrants:

“(To establish republican government, it is necessary to) effect a constitution in which the will of the nation shall have an organized control over the actions of its government, and its citizens a regular protection against its oppressions.” –Thomas Jefferson to Lafayette, 1816.

Aware of the tendency of power to degenerate into abuse, the worthies of our country have secured its independence by the establishment of a Constitution and form of government for our nation, calculated to prevent as well as to correct abuse.” –Thomas Jefferson to Washington Tammany Society, 1809.

I consider the foundation of the (Federal) Constitution as laid on this ground: That “all powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” (10th Amendment) To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.” –Thomas Jefferson: Opinion on National Bank, 1791.

Whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” –Thomas Jefferson: Draft Kentucky Resolutions, 1798.

It (is) inconsistent with the principles of civil liberty, and contrary to the natural rights of the other members of the society, that any body of men therein should have authority to enlarge their own powers, prerogatives or emoluments without restraint.” –Thomas Jefferson: Virginia Allowance Bill, 1778. Papers 2:231

To keep in all things within the pale of our constitutional powers… (is one of) the landmarks by which we are to guide ourselves in all our proceedings.” –Thomas Jefferson: 2nd Annual Message, 1802.

Our Constitution has accordingly fixed the limits to which, and no further, our confidence may go… In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.” –Thomas Jefferson: Draft Kentucky Resolutions, 1798.

Let the honest advocate of confidence read the Alien and Sedition Acts and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits.” –Thomas Jefferson: Draft Kentucky Resolutions, 1798.  

Unless the mass retains sufficient control over those entrusted with the powers of their government, these will be perverted to their own oppression, and to the perpetuation of wealth and power in the individuals and their families selected for the trust. Whether our Constitution has hit on the exact degree of control necessary, is yet under experiment.” –Thomas Jefferson to M. van der Kemp, 1812.

I was in Europe when the Constitution was planned, and never saw it till after it was established. On receiving it, I wrote strongly to Mr. Madison, urging the want of provision for… an express reservation to the States of all rights not specifically granted to the Union.” –Thomas Jefferson to Joseph Priestley, 1802.

Smaller objections (I have to the new Constitution) are (the omission of) the appeals on matters of fact as well as law, and the binding of all persons, Legislative, Executive, and Judiciary, by oath to maintain that constitution.” –Thomas Jefferson to James Madison, 1787.

All of our elected politicians do swear to maintain the constitutions.  In Indiana, they swear to uphold both state and federal constitutions!

Though written constitutions may be violated in moments of passion or delusion, yet they furnish a text to which those who are watchful may again rally and recall the people. They fix, too, for the people the principles of their political creed.” –Thomas Jefferson to Joseph Priestley, 1802.

Shouldn’t we read these texts again?  Isn’t it time to rally around them?

“(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.” –Thomas Jefferson: Notes on Virginia Q.XIII, 1782.

Read that last quote again.  In fact, read it two more times, and then after you do that, read it again.

Then tell others to do the same.  And tell them again…