Federalism for Dummies

HALLOWEEN CANDY - Federalism

by Diane Rufino, Oct. 31, 2017

Federalism is the key design feature of our government system here in the United States, as established by the US Constitution, and therefore is something everyone should understand. I thought I’d try to make it easy and visual for people to understand.

Federalism is defined as a compound mode of government, with a general government (the central or ‘federal’ government) and regional governments (state governments) combined into a single political system. Each government is considered a separate and independent sovereign. A “sovereign” is defined as a group or body having the supreme authority to rule over the inhabitants within its borders and to make decisions concerning the jurisdiction’s safety and security. Another term, therefore, for federalism is “dual sovereignty.”

In the picture above, taken on Halloween, the silver bowls represent two equal sovereigns – each with supreme authority over the tasks and responsibilities delegated to it. The candy represents those tasks and responsibilities. The bowl on the left represents the federal government, with only a few tasks and responsibilities. These are expressly delegated and enumerated in Articles I – III in the Constitution. The bowl on the right is the state government, which retains the vast reserve of governmental powers. The tasks and responsibilities reserved to the states are so numerous that they could not be listed or enumerated, and instead are lumped together as “reserved powers” in the Tenth Amendment.

The Tenth Amendment reads: “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.”

So next time you think that the federal government has unlimited power, two things will help put things into perspective for you – the picture of the two bowls of Halloween candy and the simple words of the Tenth Amendment.

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NULLIFICATION (in 500 words)

NULLIFICATION - the Rightful Remedy (chalkboard)

by Diane Rufino, Oct. 30, 2017

Imagine Hillary Clinton had won the 2016 presidential election and enough democrats won so that she enjoys a friendly Congress. And imagine she made good on a campaign promise and had a comprehensive federal gun control law enacted to essentially deprive ordinary Americans of their right to own and bear firearms. The law would clearly be unconstitutional. The Bill of Rights prevents the Congress from enacting laws that burden the second amendment guarantee.

Would the American people be doomed to be oppressed in their rights by the law?  In theory, an unconstitutional law should never have any force of law in a free society. But how do we prevent its enforcement?

That is where Nullification and Interposition come in.

Thomas Jefferson articulated the doctrine of Nullification and called it the “Rightful Remedy” to oppose unconstitutional action by the federal government. And James Madison explained that Nullification, together with Interposition, is the duty of every state in such an event. These remedies stem from the federal nature of our government system – the division of power between the states and the federal government and the understanding and duty of each sovereign to jealously and judiciously guard its sphere of power. Sovereign v. Sovereign; Titan v. Titan.  Nullification is the act of a state acknowledging that an act of the federal government is an abuse of the power delegated to it under the Constitution. To be clear, an act of government that exceeds delegated authority is automatically null and void. And therefore has no force of law and technically cannot be enforced. But who is going to tell the government that it can’t enforce its laws? The federal courts – the third, unbounded branch of the very federal government that forever seeks to enlarge its powers? That is where the states come in. After all, when the government assumes powers it was not delegated, it naturally usurps them from the states and from the people themselves. Interposition is the inherent right of a state to take whatever action necessary to prevent the enforcement of an unconstitutional law or policy (or court decision) on its citizens. Such may take the form of state laws preventing the enforcement, disbarment of judges who uphold the law, or the arrest of any official who attempts to enforce the law.

Although Jefferson and Madison are credited with these doctrines of nullification and interposition, the doctrines have been known for generations before their time; they are implied in the very nature of “law” and “enforcement.” That is why, despite the objections of states’ rights opponents, the doctrines of nullification and interposition supersede the Constitution and are indeed rightful remedies.

Without these rights, according to our founding fathers, the states (and the people) “would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” In other words, it is the most powerful remedy to prevent government tyranny on people who have recognized inherent and civil rights.

Ben Shapiro and UC-Berkeley Stand Up for Free Speech

BEN SHAPIRO - at UC Berkeley

by Diane Rufino, September 22, 2017

Ben Shapiro and UC-Berkeley took on the enemies of Free Speech and America is grateful !!

When conservative Ben Shapiro spoke at Berkeley in 2016, there was little fanfare. What changed in one year?  Could it be that Donald Trump hadn’t been elected at that time, and in fact, even the thought of him as a serious candidate was laughable. In February, mere weeks after Trump took office (and after the inappropriately- named “Women’s March,” which was clearly a vehement anti-Trump rally, on any and all issues that folks had or have with him), 150 masked individuals, likely some from the group Antifa, descended upon the Berkeley campus ahead of a scheduled Milo Yiannopoulos appearance, causing mayhem and destruction that left six people injured and damage in the six figures. Milo had to be cancelled. At a pro-Donald Trump march in March, 7 people were injured and 10 arrested.  And just last month, about 100 black-clad and masked anarchists (Antifa) circumvented police barricades and attacked at least five people from what was a peaceful protest.

But last week, on September 14, Berkeley college Republicans were finally successful in having Shapiro speak on campus. It cost at least $600,000 for security (half paid by the university), which included over 500 police, it witnessed the usual protesters, and resulted in a few arrests. But all in all, the event was a success. Now, there was a restriction on the event…. the school would only allow the college Republicans to fill the auditorium to half capacity – unlike the restriction on other (liberal) speakers. Perhaps it was a safety precaution?  Hmmm. Anyway, we learned that Freedom isn’t free, and in fact, the cost is not cheap at all.  But no matter the cost, no matter the inconvenience, no matter the vile words and insults, no matter what the threats are, and no matter what the consequences are, Speech must remain free and  available to open ears. Freedom of thought and speech are the cornerstones of our free society and without them, all others are meaningless and without a secure foundation.

For those that don’t want to hear any views other than their own, there are options…  there is cotton for your ears, earplugs, safe-spaces, institutions, libraries (where you can read Hillary’s latest book or Mein Kampf or The Communist Manifesto), or even your own legs and cars. – to take you anywhere else other than where the so-called “offensive speech” is being delivered.  Deny yourself the freedoms that hundreds of years of brave activists sought to protect if you so choose, but keep away from OUR freedom.  We’ve seen what a nation would look like if we should loose our freedom to speak freely, for we’ve seen YOU, and we know that we could nor will never tolerate it.

Thank you Ben Shapiro for your voice, thank you UC-Berkeley college Republicans for not giving up on your mission to bring conservative views to your school, and thank-you UC-Berkeley for your commitment to Free Speech.

[The following is reproduced from PJmedia.com: Tyler O’Neill, “Ben Shapiro Stormed Congress and Blew the Left’s Argument Against Free Speech to Smithereens”]

On July 27, Daily Wire Editor-in-Chief Ben Shapiro testified about free speech on college campuses before the U.S. House Committee on Oversight and Government Reform. In less than five minutes, he dissected and destroyed the Left’s argument against free speech.

“Free speech is under assault because of a three-step argument made by advocates and justifiers of violence,” Shapiro declared in his opening remarks. “The first step is they say that the validity or invalidity of an argument can be judged solely by the ethnic, sexual, racial, or cultural identity of the person making the argument.”

This “intersectionality” argument — that society structurally oppresses people of ethnic, sexual, racial, or cultural identities and therefore only those who have been oppressed can speak about certain issues — is the ground of the “microaggression” culture stifling speech on campuses, the Daily Wire editor argued.

“The second step is they claim that those who say otherwise are engaged in what they call verbal violence,” Sharipo added. “The final step is that they conclude that physical violence is sometimes justified in order to stop such verbal abuse.”

In order to understand how college campuses shut down speech — often but not always conservative speech — Americans must understand the philosophy of “intersectionality.” Shapiro argued that this philosophy dominates college campuses and “a large segment of today’s Democratic Party.”

Intersectionality “suggests that straight white Americans are inherently the beneficiaries of white privilege and therefore cannot speak on certain policies, since they have not experienced what it’s like to be black or hispanic or gay or transgender or a woman.”

This philosophy, Shapiro declared, “ranks the value of a view not based on the logic or merit of the view but on the level of victimization in American society experienced by the person espousing the view.” An LGBT black woman is automatically considered more correct than a straight white male, before any speech exits either of their mouths.

“The next step is obvious: If a straight white male, or anyone else who ranks lower on the victimhood scale, says something contrary to the viewpoint of the higher ranking intersectionality identity, that person has engaged in a microaggression,” the editor declared.

He quoted NYU social psychologist Jonathan Haidt, who defined microaggressions as “small actions or word choices that seem on their face to have no malicious intent but that are thought of as a kind of violence nonetheless.” Here’s the key — “You don’t actually have to say anything insulting to microaggress. Somebody merely needs to take offense.” In other words, an offended person who fits the “oppressed” identities of intersectionality has the power to dub any speech from someone “less oppressed” a “microaggression.” This word means not merely an insult. As Shapiro noted, “Microaggressions are the equivalent of physical violence.”

To watch Ben Shapiro’s remarks at UC-Berkeley, go to:  https://www.youtube.com/watch?v=Ae4VZTVEFC4

 

References:

Tyler O’Neill, “Ben Shapiro Stormed Congress and Blew the Left’s Argument Against Free Speech to Smithereens,” PJ Media, July 27, 2017.

Ben Shapiro Speaks at UC-Berkeley (Full Speech), September 14, 2017:  https://www.youtube.com/watch?v=Ae4VZTVEFC4

JUDICIAL ACTIVISM: Obstruction of Construction

JEFFERSON - versus Hamilton

by  Diane Rufino, September 21, 2017

In Honor of the 230th Anniversary of the US Constitution, and also to help promote Brion McClanahan’s latest book, HOW ALEXANDER HAMILTON SCREWED UP AMERICA, I wanted to post this important History Lesson —

The history surrounding the first Bank Bill (to charter a national bank), proposed to President Washington by his Secretary of the Treasury, Alexander Hamilton shows us exactly why the Federal Judiciary has become the greatest usurper of powers belonging to the States and to the People. It is an important lesson on constitutional interpretation.

Why is it important that we pay close attention to constitutional interpretation?  Because when the courts don’t bother to consult the proper original documents and commentary as authority on the meaning and intent of the provisions of the Constitution, and/or when they make the decision to disregard that history and that critical information (any student of contract laws knows the strict laws of construction that guide a contract’s interpretation), then any opinion in contradiction to that history and such commentary necessarily means that the judiciary has assumed power for the federal government that it was not intended to have. And where do those additional powers come from?  From the original depositories of government power, the People and then the States.

HISTORY –

In 1788, the US Constitution was adopted by the requisite number of states and hence, the government it created would go into effect. Later that year, elections were held, George Washington was elected our first president (and men like James Madison elected to the first US Congress), and the following year, 1789, the Union’s new government was assembled and inaugurated. One of the first decisions of the first Congress was to fund the debts that the individual states incurred in fighting the Revolutionary War. The question, of course, was how would it do that. Washington’s Treasury Secretary, Alexander Hamilton, long holding true to a belief that a large, powerful national government of centralized functions is the proper form of government for the new Union (although he conceded to the federal form that the majority of delegates at the Philadelphia Convention voted for), urged that Congress should charter a National Bank, after the British model. He took his suggestion to Washington and agreeing with Hamilton, a Bank Bill was introduced in Congress. But powerful state and government leaders, including Thomas Jefferson, Washington’s Secretary of State, James Madison, Congressman from Virginia, and several state leaders, particularly from Virginia, objected, characterizing such a bank as being “repugnant to the Constitution,” and assuming powers not expressly delegated to Congress in Article I. Washington then asked both Hamilton and Jefferson to provide him with memoranda outlining their arguments regarding the creation of such a National Bank.

(The Following section, as noted, is taken, in its entirety, from Kevin Gutzman’s book THOMAS JEFFERSON – REVOLUTIONARY (St. Martin’s Press, NY, 2017):

Jefferson began by describing the Bank Bill’s provisions, saying that he understood the underlying principle of the Constitution to be 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.” (here is quoted the Tenth Amendment, which at the time lay before the state legislatures for their ratification).  Power to pass the bill had not been delegated to the United States, he insisted. It did not fall under the power to tax for the purpose of paying debts because the bill neither paid debts nor taxed. It did not fall under the power to borrow money because the bill neither borrowed nor ensured that there would be borrowing. It did not fall under the Commerce Clause for it did not regulate commerce. Jefferson understood ‘regulating commerce’ to mean “prescribing regulations for buying and selling,” which the Bank Bill did not do. If it did that, he continued, the bill “would be void” due to its equal effects on internal and external commerce of the states. “For the power given to Congress by the Constitution,” Jefferson continues, “does not extend to the internal regulation of the commerce of a State (that is to say of the commerce between citizen and citizen), which remain exclusively with its own legislature, but to its external commerce only; that is to say, its commerce with another State or with foreign nations or with the Indian tribes.”  No other enumerated power (Article I, Section 8) gave Congress ground for passing this bill either, he concluded.

Besides the enumerated powers, the General Welfare Clause and the Necessary and Proper Clause had also been invoked by the bill’s proponents. Jefferson disposed of those clauses deftly as well. First, the General Welfare Clause said that Congress had power “to lay taxes for the purpose of providing for the General Welfare (emphasis Jefferson’s). The reference to the general welfare, he insisted, was bound to the power to tax. It did not create a separate power “to do any act they please which might be for the good of the Union, which Jefferson thought the preceding and following enumerations of powers rendered entirely obvious. To read the General Welfare Clause any other way would make the enumerations “completely useless. It would reduce the whole instrument to a single phrase, that of instituting a Congress to do whatever would be good for the United States, and as they would be the sole judges of the good or evil, it would also be a power to do whatever evil they please.”

Jefferson, the skilled lawyer that he was, noted that one of the most basic rules of construction (contract law) cut strongly in favor of his argument. That rule states that “where a phrase will bear either of two meanings, to give it that which will allow some meaning to the other parts of the instrument, and not that which would render all the others useless.” Besides that, the Philadelphia Convention had considered and expressly rejected a proposal to empower Congress to create corporations. The rejection, he noted, was based partly on the fact that with such a power, Congress would be able to create a bank.

As for the Necessary and Proper Clause, Jefferson noted that it said that the Congress could “make all laws necessary and proper for carrying into execution the enumerated powers. But they can all be carried into execution without a bank. A bank therefore is not necessary and consequently, not authorized by this phrase (emphasis Jefferson’s).”  The Bank Bill’s proponents had argued for the great convenience of having a bank, which might aid in exercising powers enumerated in the Constitution, but Jefferson would have none of the idea that “necessary” could be twisted to mean “convenient.”

Jefferson concluded his memorandum with a brief statement on the president’s veto power, which he called “the shield provided by the Constitution to protect against the invasions of the legislature: (1) The right of the Executive. (2) Of the Judiciary. (3) Of the States and State legislatures.”  To his mind, the Bank Bill presented “the case of a right remaining exclusively with the States” – that of chartering a corporation. Congress’ attempt to take this right to itself violated the Constitution and Washington should veto the bill.

Washington did not agree. Instead, perhaps on the basis of Hamilton’s argument that Congress could adopt whatever kind of legislation it judged helpful in supervising the national economy, he signed the Bank Bill.   [Gutzman, Thomas Jefferson – Revolutionary, pp. 40-42]

THE IMPACT –

When a subsequent Bank Bill was challenged by the state of Maryland, in McCulloch v. Maryland (1819), Chief Justice John Marshall would revisit the arguments submitted to President Washington and as expected, he would side with Hamilton. Hamilton’s position, after all, would give the federal government a broad pen with which to write legislation, in contrast to the limits imposed on it by the very wording of the Constitution and the listing of the only powers that the States had delegated to the federal government. McCulloch was another in a series of cases written by Marshall usurping powers from other depositories and concentrating them in the federal government. The Supreme Court, a branch of the very federal government that it presides over, has consistently used its powers not to interpret the Constitution and offer opinions to other branches, but rather to secure a monopoly over the scope and intent of the government’s powers.

Marshall’s opinion in McCulloch gave Congress power that the States intentionally tried to prevent; he read a meaning and intent in the Constitution, in Article I, that was expressly rejected by the States when they debated and then signed the document on September 17, 1787. Marshall’s reading of Article I, in particular the “Necessary and Proper” Clause, gave Congress power “to which no practical limit can be assigned,” as James Madison put it.

With McCulloch, the Supreme Court committed a grave injustice to the system established by our founding fathers and our founding states. Marshall’s opinion directly contradicted an essential element of the states’ understating of the Constitution when they ratified it, and that understanding was that the Constitution created a federal government of express and limited powers so that the residuary of government power would remain reserved to the states and hence the sovereignty they long cherished would not be overly diminished by organizing into a Union.

And the history of judicial activism continued and still does ….

 

Reference:  Kevin Gutzman, Thomas Jefferson – Revolutionary, St. Martin’s Press, NY (2017).