Posts by Krisannehall:
What If There Is Another Shutdown?
January 17th, 2014By KrisAnne Hall.
The shutdown showdown seemed like a wild train ride and the political aftermath is only just picking up steam. As the RINO establishment turns against the conservatives and each side sets its sights on February 2014, I think it is important to be clear about what the faithful few were actually fighting for and against during the shutdown showdown. Let me reset the framework in the simplest possible terms once more, so that we don’t forget the essentials.
Our federal government, created by the States in 1787 was created to be a limited and defined federal government. Not my words, but the words of the people who created it; easily researchable and verifiable. James Madison (called the Father of the Constitution) said in Fed. Papers 45 that “the powers (not rights) DELEGATED (term repeated in the 10th A) to the federal government are FEW & DEFINED and those that REMAIN in the States are NUMEROUS & INDEFINITE.” Madison then tells us what those few powers delegated to the feds are…he calls them “external objects” meaning the feds are limited essentially to FOREIGN affairs and then he further clarifies by saying they are specifically, “war, peace, negotiation, and foreign commerce.” HEALTH INSURANCE not falling in one of these categories is NOT a power that has been delegated to the federal government by the States. One might invoke the General Welfare Clause, etc. but that would be a misapplication of the Constitution. For brevity sake, I will simply refer you to a full analysis on this issue, if you are inclined to be further educated on the proper application of the General Welfare Clause as given again by James Madison: http://www.krisannehall.com/index.php/blog/43-the-general-welfare-clause-justification-for-obamacare
Since healthcare is not a delegated power, its regulation by the central government is an unconstitutional act. Alexander Hamilton clarified in Fed. 78, that “no legislative act contrary to the Constitution can be valid.” Therefore ACA is unconstitutional. One may now say, but the Supreme Court has declared it Constitutional therefore it is. Fortunately, that is also an improper placement of power in the hands of the Supreme Court. For brevity sake, I will refer you to a full analysis on this topic for further education: http://www.krisannehall.com/index.php/blog/83-letter-to-tx-ag-greg-abbott
Now, it is hardly disputed that the current govt. does not have the funding to operate ACA as it is written and with all the technical difficulties it is getting more and more expensive everyday. Even the proponents cannot disclaim that fact and that is why we need to increase our borrowing limit to sustain it. Any economist with any credibility will admit that robbing Peter to pay Paul is a definite path to destruction. It is also clear that the “law” which has been unilaterally altered by the President numerous times, isn’t even the “law” that the Congress passed and SCOTUS ruled on. It is also becoming clear to consumers as they see the increases in their premiums, that there is nothing “affordable” about the Affordable Care Act.
However, one of the biggest problems with ACA is NOT its economic impact, but the door it opens to federal intrusion. The problem stems from the application of a principle created by the Supreme Court called “significant governmental interest” or “compelling governmental interest”. What this doctrine supposes is that if the government has a “significant or compelling interest” in something, that interest then trumps our Rights. It is how 134 Republicans can vote that the 4th Amendment doesn’t apply to the federal government when they have a “national security” interest. National security becomes that “compelling interest” that overrides our 4th Amendment Right to be free from unreasonable searches and seizures.
ACA gives the federal government a “compelling interest” in our healthcare by providing our health insurance. (NOTE: ACA is not providing HealthCare it is providing health insurance. Insurance doesn’t guarantee care; we should know that by now.) With a “compelling interest” in our health, the federal government can now insert itself into every aspect of our daily lives, trumping any right or freedom we might possess. With a “compelling interest” in our healthcare, we have placed in the hands of the government a “compelling interest” in our health. The situation of our health directly impacts our healthcare. With a “compelling interest” in our health, the government could potentially regulate where we live, by claiming we live too far from a hospital or appropriate healthcare facility, thus preventing their ability to provide adequate healthcare and creating too great of a financial burden on our healthcare system. With this “compelling interest” the government can also claim the authority to tell us what we can and cannot eat, making certain foods ILLEGAL because they are not regulated and approved by the government as “healthy”. (Remember Bloomberg’s war on soft drinks? Put that on the national level.) Now what you have is every aspect of our daily lives regulated by the federal government based upon a “compelling governmental interest”. That is not Liberty; that is slavery.
One of the means to check such federal overreach was placed in Article 1 section 7 of the Constitution and the founder’s explanation of the powers and purposes of those powers vested in the House of Representatives. This appears to have been the basis for the shutdown. Of course it did not work, because we no longer operate by the Constitution. Here is how it is supposed to work, Article 1 section 7 of the Constitution reads:
“All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other Bills.” (emphasis mine)
Since the Supreme Court has declared ACA a tax, its funding must originate in the House. The Senate “may” propose amendments, but that is not a requirement. So, the House has the sole authority to fund ACA and the sole authority to defund ACA. Although the Senate may not like it, they technically have no Constitutional say in the matter. James Madison tells us exactly why:
“The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse that powerful instrument by which we behold, in the history of the British Constitution, an infant and humble representation of the people gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.” Fed. 58. (emphasis mine)
Further clarity of intent comes from a discussion between Alexander White and James Madison, both members of the US House representing the State of Virginia:
Mr. White: “The Constitution, having authorized the House of Representatives alone to originate money bills, places an important trust in our hands, which, as their protectors, we ought not to part with. I do not mean to imply that the Senate are less to be trusted than this house; but the Constitution, no doubt for wise purposes, has given the immediate representatives of the people a control over the whole government in this particular, which, for their interest, they ought not to let out of their hands.”
Mr. Madison: “The Constitution places the power in the House of originating money bills. The principal reason why the Constitution had made this distinction was, because they were chosen by the people, and supposed to be the best acquainted with their interest and ability.”
The purse is a power placed in the hands of the House on purpose and for a purpose. It is, in itself, an important check on government power; reigns in the hands of the people to control the spending and growth of government. Every time the House fails to maintain this check; every time the House passes a Continuing Resolution instead of a Budget, that vital check fails and the House relinquishes, what our framers thought to be, one of the most important powers held in trust for the people.
This is how our government is supposed to work. What we witnessed during the opening weeks of October, 2013 is a result of years of the erosion and surrendering of strict Constitutional processes. By using the so-called continuing resolutions rather than engaging in the legitimate budget process, Congress has sidestepped the Constitution. One cannot claim to be in a debate about the budget if there is no budget, and a CR is not a budget. However, the depth of ignorance as to what the Constitutional mechanisms are, and more importantly, why we have them, has allowed our government to be hijacked by those who would destroy the nation by driving us over the cliff of debt to support a welfare state. The ignorant populace, driven by media misinformation and propaganda, cheers this runaway train and labels those who desperately sought to return our nation to fiscal sanity as reckless. I will tell you what is reckless, trying to drive this freight train completely blind, ignoring the operator’s manual while our children are tied to the tracks. America this train is out of control, bandits are at the levers and the builders are doubtless scratching their heads wondering why we are bent on our own destruction. Remember this in the coming months as liberal Dems and RINO Republicans try to convince the voters that a ride on their crazy train is the way to go.
“We are fast approaching the stage of the ultimate inversion: the stage where the government is free to do anything it pleases, while the citizens may act only by permission; which is the stage of the darkest periods of human history, the stage of rule by brute force.” ~ Ayn Rand
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Federal Census, Not Just Intrusive But Unconstitutional!
February 16th, 2013
By KrisAnneHall.
There have been many questions about the legitimacy of the extremely intrusive questions on the current and most recent government census. I have recently been instructed that the census given to those in the agricultural industry is even more intrusive than those given to the average home owner; asking questions like how many bales of hay and how many pieces of equipment of 40 horsepower or more. In response to these questions I have prepared a brief summary of the purpose of the census, not according to my opinion, but those that drafted, debated, and ratified Article 1 Section 2 Clause 3 of the Constitution. I hope this will help us to understand how unconstitutional these census questions really are.
Understanding the purpose of the census is fundamental to understanding its limitations. The purpose of the census was two-fold; the apportionment of representatives and the levying of taxes. Neither of these things is to be determined by property, but by numbers of persons alone. The reason for the census was to keep the federal government from arbitrarily laying taxes and apportioning unequal suffrage to the states.
“Let it be recollected, that the proportion of these taxes is not to be left to the discretion of the national Legislature: but is to be determined by the numbers of each State as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule; a circumstance which effectually shuts the door to partiality or oppression. The abuse of this power of taxation seems to have been provided against with guarded circumspection. In addition to the precaution just mentioned, there is a provision that all duties, imposts and excises shall be UNIFORM throughout the United States.” (Alexander Hamilton Federalist Paper 36)
James Madison makes it clear in Federalist Paper 54 that it is the “fundamental principle of the proposed Constitution, that as the aggregate number of representatives allotted to the several States, is to be determined by a federal rule founded on the aggregate number of inhabitants… who will be included in the census by which the Federal Constitution apportions the representatives. We have hitherto proceeded on the idea that representation related to persons only, and not at all to property.
Therefore the purpose and mechanism of the census is to numbers of people alone and not property…at all.
The current census does a whole lot more than count numbers of people, it counts property as well. If the framers of the nation said that property is NOT the subject of the census, on what authority can the government include this in the current census? The logical answer is that they cannot. They only mechanism that allows them to do this is what our framers called a “forced construction” of the Constitution.
If you go to the government’s website on the census they will assure you that the current census is lawful because the courts say so. However, that is not the standard our founders laid as the test to legitimacy. Our founders said the Constitution, not the will of the government, is the only true judge of the government’s power. Let’s look at the government’s reasoning as it compares to the drafters’ limitations on government.
Government: In 1954, Congress codified earlier census acts and all other statutes authorizing the decennial census as Title 13, U.S. Code. Title 13, U.S. Code, does not specify which subjects or questions are to be included in the decennial census. However, it does require the Census Bureau to notify Congress of general census subjects to be addressed 3 years before the decennial census and the actual questions to be asked 2 years before the decennial census.
Founders: Let it be recollected, that the proportion of these taxes is not to be left to the discretion of the national Legislature: but is to be determined by the numbers of each State as described in the second section of the first article. An actual census or enumeration of the people must furnish the rule; Alexander Hamilton, Fed. Papers #36
Government: The Legal Tender Cases, Tex.1870; 12 Wall., U.S., 457, 536, 20 L.Ed. 287. In 1901, a District Court said the Constitution’s census clause (Art. 1, Sec. 2, Clause 3) is not limited to a headcount of the population and “does not prohibit the gathering of other statistics.”
Founders: “If the decision of the judiciary be raised above the authority of the [states]… dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution… James Madison,Virginia Assembly Report of 1800
“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” Alexander Hamilton Federalist Paper #78
Government: The census does not violate the Fourth Amendment. Morales v. Daley, 116 F. Supp. 2d 801, 820 (S.D. Tex. 2000). In concluding that there was no basis for holding Census 2000 unconstitutional, the District Court in Morales ruled that the 2000 Census and the 2000 Census questions did not violate the Fourth Amendment or other constitutional provisions as alleged by plaintiffs. (The Morales court said responses to census questions are not a violation of a citizen’s right to privacy or speech.)
Founders: When told the government had the right to search the colonists property to ensure compliance with the taxes through the mechanism of writs of assistance, James Otis Jr told the court that this power “appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.”
The federal government does not have the authority to assume a power simply because it is not forbidden. To argue that the “Constitution doesn’t say we can’t do it” is the height of Constitutional heresy! The powers delegated to the federal government are enumerated. If a power is not part of that enumeration it is not a power that belongs to the federal government but to the States! To claim otherwise is theft of State power.
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. (10th Amendment)
A Republican Federalist in paper No. 5 stated that “the provision in the system for a representation of the people, which is the corner stone of a free government.” If creating a census was a mechanism to protect the “corner stone of a free government” surely our framers would not have authorized the federal government to engage in principles contrary to that cause though the use of that very mechanism.
The government’s attempt to place property into the national census appears to me to be a mechanism to collect information regarding our personal property with the purpose to tax it in the future. I also believe the federal government is trying to bring under its control “unauthorized” agricultural activity.
Here is the description of one of the USDA propaganda videos promoting the census:
“How many baseballs could come from the cows American farmers produce? How much college tuition could be paid by U.S. farm income? How many acres of farmland are in conservation programs? These are some of the many things we can learn when U.S. farmers and ranchers respond to USDA’s National Agricultural Statistics Service’s agricultural surveys. See some of these fun facts brought to life. Learn how important agriculture is to America and the many ways farmers, ranchers and their rural communities benefit from accurate survey responses.”
Sounds like the Feds are licking their chops at another revenue stream. You farmers alone can pay college tuition for “every student for 3 years.” Conservation programs? Seems like I’ve heard that one 21 times before?
Since the Federal government and the courts are aligned against these principles, there is no protection that can be expected from such a tyrannical government. The only true limitation and check on governmental power is the people. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” (Declaration of Independence) We have the right and authority to say we will not allow the transgressing of our rights. We have the power and the right to say, NO! We will not comply.
http://www.krisannehall.com/index.php/blog/166-federal-census-not-just-intrusive-unconstitutional
Arizona Immigration Ruling~Direct Assault on State Sovereignty
June 26th, 2012Kris Anne Hall.
Never has a ruling by the Supreme Court been more aptly titled as an “Opinion,” because that is exactly what Justice Kennedy and his cohorts have delivered in Arizona v. United States. It is nothing more than an open display of judicial activism. The majority opinion is not a legal explanation on the Constitutionality of Arizona’s laws, but is an ideological dissertation on this current administration’s view of immigration.
Not only is this ruling devoid of any appeal to the Constitution, it is very dangerous. It is an aberration of fundamental Constitutional principles and a brazen assault on state sovereignty! Chiefly, Kennedy takes the Supremacy clause of the Constitution, which declares that the Constitution is the supreme law of the land, and translates that principle into the supremacy of the Federal government over the states. There couldn’t be anything more contrary to our founders’ intent. Let me repeat: this opinion is a monumental assault on the sovereignty of the states.
Article I section 8 clause 4 of the Constitution states that Congress has the power [t]o establish an uniform rule of naturalization. The purpose of the federal government in the case of immigration, as Justice Kennedy appropriately acknowledges is “to be a single voice of the nation for foreign relations.”
This external focus is in line with James Madison’s directive that: “The powers delegated by the proposed Constitution to the Federal Government are few and defined. Those which are to remain in the State Governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace negotiation, and foreign commerce…”
Indeed, we must have a single rule of law regarding immigration, else foreign nations will never know what to expect from state to state. However, this is where Kennedy’s constitutional understanding ends. He continually remarks throughout this opinion, that the states are not only not allowed, but not capable of enforcing the laws that the federal government codifies. What is his authority for this opinion? Not the Constitution itself and certainly not the founders.
Kennedy does not appeal to the Constitution as the standard, but rather the “broad discretion of immigration officers” as the determining factor of how immigration policy should be devised and carried out. He says, “Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all.” The standard for deportation of an illegal immigrant is NOT the law, according to Kennedy, but an arbitrary determination of the Department of Homeland Security, which we all know will reflect Obama’s recent declaration.
Kennedy suggests that the states must submit to lawlessness based upon the whim of federal officials, declaring, “Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies.”
How does Kennedy justify this arbitrary determination? “This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed.”
According to Kennedy, enforcement of immigration laws are nothing more than a tool to harass illegal aliens. This is a direct reflection of the policies of the President and not the law established by Congress through the powers delegated by the Constitution. Simply put, the states must accept violations of the law if the whim of the sovereign decides it is not in their comprehensive scheme to enforce the law. It is the whim of the sovereign to decide who gets the privilege of citizenship, not the supreme law of the land.
Kennedy further opines that the states are apparently not smart enough to know when to deport and not to deport: “There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable … By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
It should be apparent by the Federal Government’s refusal to enforce the law, that it is, in fact, the states that have better sense about immigration laws. The federal government is not interested in following the law of the land, they are only interested in circumventing it to achieve their ideology and now the Supreme Court is aiding and abetting this lawless assault upon Liberty. I will repeat it, if you have to circumvent the Constitution to do your job, YOU are the criminal.
In true judicial activist form, Kennedy couldn’t resist giving the liberal agenda for immigration as justification for arbitrary enforcement of federal law. Nearly quoting the president’s position on this law, Kennedy states:
“Immigration policy shapes the destiny of the Nation. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here.”
I ask you, what does this have to do with the Constitutionality of these laws? I believe the key to understanding this opinion lies in knowing the President’s recent determination that DHS will not be enforcing immigration laws and for the court to rule otherwise would allow the states themselves to nullify the president’s order. Here it is, in Kennedy’s own words: “If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, “diminish[ing] the [Federal Government]’s control over enforcement”
Ignoring nearly two centuries of the individual state’s role in making these decisions (as outlined cogently in Scalia’s dissent), Kennedy cuts through one of the pillars of the Republic, state sovereignty, like a buzzsaw. He tramples the separation of powers and wholeheartedly supports just one more example of the executive branch stealing power from Congress. Any hopes that Congress will do anything about it?
In a statement that can only be classified as patronizing, Kennedy throws the final salt in the wound, by declaring, in spite of the states “frustrations” with enforcement, the federal government is the King, and the states must subject themselves to its authority. “Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.”
The “victory” claimed by some is no victory at all. The Supreme Court did uphold the ability of law enforcement officers to contact Immigration and Customs Enforcement (ICE) when they have pulled over someone to verify whether that person is an illegal alien. Big deal! Justice Kennedy has informed us:
“As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez Mendoza, 468 U. S. 1032, 1038 (1984).” It’s not illegal to be illegal. Really?
Since being here illegally is not a crime according to the federal government, even if law enforcement is informed that a person is illegally present, that officer will still have to let them go. The Supreme Court has said any other action by the state is an infringement upon the federal government’s power. According to Kennedy, state officers are not even allowed to detain illegal aliens: “By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government.”
According to Kennedy, the sole authority to determine whether an illegal alien is to be detained or deported rests in the Attorney General: “[T]he Attorney General can exercise discretion to issue a warrant for an alien’s arrest and detention “pending a decision on whether the alien is to be removed from the United States…the Attorney General will issue a warrant.” Kennedy then reminds everyone that all who are enforcing these laws are “subject to the Attorney General’s direction and supervision.” In what version of the Constitution did he find this?
Once again, it is NOT about the law, it’s about the discretion of the Federal Government and the Federal Government is King. This court has not only taken the precedent and placed it above the founders’ understanding of the Constitution, but now regulation applied by arbitrary discretion is also elevated above our foundational principles. This supports the hopes of this current administration to further create a totalitarian government led by King Barry I.
In one decision, the Supreme Court has told every state, they do not have the authority to protect themselves; they must submit to the supervisory authority of the Federal Government and the Supreme Court supports the president’s recent directive to DHS.
Let’s be clear. The Constitution says the federal government is supposed to establish standards so that foreign nations will not have to deal with 50 different rules. Yes, the states are bound by these standards pursuant to the supremacy clause. However, the power to create standards does not infer the ability to be the sole enforcer. Once the standards are set, then the states are bound to enforce those laws pursuant to those standards. The only time the federal government is allowed to be involved is when the states are not following those standards! This power has now been expanded from the power to create regulations to the power of sole enforcer, and Justice Kennedy has now declared that the sovereign states have no ability to enforce these laws, and therefore have no right to protect their own territories. It’s as if the US government, via the Supreme Court, has practically expelled Arizona from the Union – since, if the Federal government will not enforce the law and Arizona is NOT ALLOWED to enforce the law – then Arizona is bare and unprotected.
One need only read Justice Scalia’s dissent to discover the correct interpretation.
“ The most important point is that, as we have discussed, Arizona is entitled to have “its own immigration policy”—including a more rigorous enforcement policy—so long as that does not conflict with federal law. Today’s opinion, approving virtually all of the Ninth Circuit’s injunction against enforcement of the four challenged provisions of Arizona’s law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign’s territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.”
As do I, Justice Scalia. As do I.
UN Treaty, Sea Treaty, Gun Treaty…What Are We to Do?
June 13th, 2012
by KrisAnne Hall http://www.KrisAnneHall.com
June 11, 2012
Power to create treaties is established in Article 2 Section 2 Clause 2 of the Constitution. The power to create a treaty is delegated by the people to the President with approval of a two thirds vote of the Senate. The Supremacy Clause then states:
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, anything in the constitution or laws of any state to the contrary notwithstanding.
There is so much misunderstanding regarding treaties, the doctrines of the necessary and proper clause, and the general welfare clause, that when you aggregate this misunderstanding our government is able to reach magnificent proportions of corruption and unconstitutional activity. Our founders were very clear and its time we listen to them instead of Congressmen and Judges who have had no training on the true meaning of the Constitution.
The power to create treaties was vested in the President AND the Senate after the failure of the Articles of Confederation. The Articles of Confederation created a federal government so small that it could not successfully complete the tasks it was delegated to accomplish. James Madison explains inFederalist #45 that the power delegated to the federal government was one of very limited proportions:
“The powers delegated by the proposed Constitution to the federal government are few and defined… (and) will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.”
Our federal government was designed to be our national representative to the foreign world; a representative of the country in foreign relations. Because we lived in a world where nations where led by Kings, Czars, and Emperors, we needed to have a way that all the states could have a unified voice for negotiations and commerce. During the Articles of Confederation, our federal government could not collect taxes or even compel the delegates to show up to work and do their job. The federal government was attempting to make agreements with foreign nations and was defaulting on these agreements because they had no authority to enforce them equally throughout the states and the states themselves were suffering the greatest consequences. As reported in The Address and Reasons of Dissent of the Minority of the Convention of Pennsylvania to their Constituents, written December 12, 1787, this very point was addressed.
“It was found that our national character was sinking in the opinion of foreign nations. The Congress could make treaties of commerce, but could not enforce the observance of them. We were suffering from the restrictions of foreign nations, who had shackled our commerce, while we were unable to retaliate: and all now agreed that it would be advantageous to the union to enlarge the powers of Congress; that they should be enabled in the amplest manner to regulate commerce, and to lay and collect duties on the imports throughout the United States.”
So, why were treaties given “supremacy”? The collective decision was made to not only delegate the power of treaties to the President and Senate but to also classify its relevance in enforcement to the states. There was great debate over this issue, as many were concerned that by designating this power, it would elevate the treaties above the very Constitution itself. Fortunate for us, this argument was made, because the rebuttal to this argument is vital in understanding the limitations and scope of treaties. Without these explanations, treaties created by the federal government might justifiably supersede the Constitution. Good thing for us that these treaties, although they may attempt to supplant the Constitution, they are plainly not justified in doing so.
Our founders repeatedly stated that treaties were, for every purpose and application, CONTRACTS, agreements with foreign nations to accomplish the duties obligated in those four delegated powers Madison identified.
“The power of making treaties is, plainly, neither the one nor the other. It relates neither to the execution of the subsisting laws, nor to the enaction of new ones; and still less to an exertion of the common strength. Its objects are CONTRACTS with foreign nations, which have the force of law, but derive it from the obligations of good faith. They are not rules prescribed by the sovereign to the subject, but agreements between sovereign and sovereign.” Federalist #75
Although these Contracts were not considered to be a subdivision of laws or even new laws altogether, it was necessary that they were binding upon the states to prevent the failures seen by our founders in the Articles of Confederation.
“These gentlemen would do well to reflect that a treaty is only another name for a bargain, and that it would be impossible to find a nation who would make any bargain with us, which should be binding on them ABSOLUTELY, but on us only so long and so far as we may think proper to be bound by it.” Federalist #64
These treaties were not designed to be untouchable. They were subject to the very same checks and balances of every act of the federal government. They could fail if they didn’t meet the proper standards. One way they could fail is if they attempted to infringe upon or utilize a power that had not been granted to them through the Constitution. They were to be bound and fettered by all the limitations of power inherent in the Constitution through the specific delegated powers and the necessary and proper and general welfare clauses. To us, that statement must sound like an oxymoron; to think that the necessary and proper and general welfare clauses were meant to bind Congress. Because we have become so detached from the founders intent, we have allowed these clauses to become an expansionof power, a consequence that our founders thought an abomination. [The explanation of these clauses are a whole other analysis, but for a complete explanation of the intent of the General Welfare Clause, please read my previously written analysis. I promise you will be shocked at the clarity of our founders’ intent.] So, if a treaty attempted to assume a power that was not previously delegated, for instance to bind upon the states agreement for an object outside of the realm of war, peace, or foreign commerce, it would be deemed unconstitutional.
“–I insisted that in givg to the Prest. & Senate a power to make treaties, the constn meant only to authorize them to carry into effect by way of treaty any powers they might constitutionally exercise.” (sic) –Thomas Jefferson: The Anas, 1793.
“By the general power to make treaties, the constitution must have intended to comprehend only those subjects which are usually regulated by treaty, and cannot be otherwise regulated… It must have meant to except out of these the rights reserved to the states; for surely the President and Senate cannot do by treaty what the whole government is interdicted from doing in any way.” –Thomas Jefferson: Parliamentary Manual, 1800.
Another limitation imposed by our founders on treaties is that they MUST NOT be in conflict with the Constitution. If a treaty is in direct conflict with, let’s say the Second Amendment, that treaty would be considered unconstitutional. Treaties were established as a supreme law to maintain the credibility and honor of an agreement with a foreign nation, but it was NEVER supposed to be superior to the Constitution. There is no law superior to the Constitution.
“No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. “ Federalist #78
But what are we to do when these treaties fail the tests of Constitutional limitations? I have heard it mentioned that we are stuck with these treaties short of another treaty supplanting them or a Constitutional Amendment. This perspective is not consistent with our founders’ explanations. As a matter of fact, our founders wanted us to know that if a treaty was in opposition to the Constitution, there were significant consequences.
“if they [the President & Senate] act corruptly, they can be punished; and if they make disadvantageous treaties, how are we to get rid of those treaties?…As to corruption, the case is not supposable. He must either have been very unfortunate in his intercourse with the world, or possess a heart very susceptible of such impressions, who can think it probable that the President and two thirds of the Senate will ever be capable of such unworthy conduct. The idea is too gross and too invidious to be entertained. But in such a case, if it should ever happen, the treaty so obtained from us would, like all other fraudulent contracts, be null and void by the law of nations.” Federalist #64
There is no qualification in that statement that this treaty be replaced or a Constitutional Amendment be written. The simple fact of the matter is this treaty would be a “fraudulent contract” and would be of no effect. At this point, the states would be justified Constitutionally to tell the federal government that they will not honor or enforce the treaty. We do not live in a Kingdom and the power of our government is not derived from a King. We do live in a republic and the power of our government is derived from the people. It is always the responsibility of the PEOPLE to be the ultimate check and balance. I think that Alexander Hamilton made this point abundantly clear in Federalist #33:
“If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify. The propriety of a law, in a constitutional light, must always be determined by the nature of the powers upon which it is founded. .. would not be the supreme law of the land, but a usurpation of power not granted by the Constitution.” Federalist #33
Every day our federal government seems to operate more and more under the assumption that their power is derived in the manner of a Kingdom, it is essential that the people, from which its true power is derived, stand against this tyranny and restore the balance of power. We cannot do this unless we first understand the exceptional principles under which this nation was established. We cannot do this unless we REQUIRE our representatives to operate under these principles.