By Dr. Harold Pease
It is said that the casualties of this presidential election in order were the toppling of the Bush dynasty, the Clinton dynasty, and the nullification of the Obama legacy. At the top, however, is a rejection of socialism. No two presidential candidates have been more socialistic than Bernie Sanders and Hillary Clinton, and half of America voted for socialism. Keeping Obamacare and instituting “free college” would have made it very difficult to argue that we had not become a socialist country. This is despite the harsh lessons of our socialist beginnings.
This Thanksgiving Day we think of the Pilgrims enjoying abundant food, but this was not their real reality. Few will mention the starving times the first year in 1620 when half died of starvation. Harvests were not bountiful in that year and the next two. Plymouth was beset by laziness and thievery. William Bradford, the governor of the colony, in his History of Plymouth Plantation reported that “much was stolen both by night and day” to alleviate the prevailing condition of hunger. The mythical “feast” of the first Thanksgiving did fill their bellies briefly, he reported, and they were grateful, but abundance was anything but common. Why did this happen? Because they had fallen victim to the socialistic philosophy of “share the wealth.” This dis-incentivized the productive base of society.
Then suddenly, as though night changed to day, the crop of 1623 was bounteous, and those thereafter as well, and it had nothing to do with the weather. Bradford wrote, “Instead of famine now God gave them plenty and the face of things was changed, to the rejoicing of the hearts of many, for which they blessed God.” He concluded later, “any general want or famine hath not been amongst them since to this day.”
One variable alone made the difference and ended the three-year famine. They abandoned the notion of government (or corporation) owning the means of production and distribution in favor of the individual having property and being responsible to take care of himself. Before, no one benefited by working because he received the same compensation as those who did not. After the change everyone kept the benefits of his labor. Those who chose not to work basically chose also to be poor and the government (corporation) no longer confiscated from those who produced to give to those who did not. No government food stamps here.
Ironically all this could have been avoided had Plymouth consulted history and communicated with their neighboring colony, some distance south of them, who had previously been down the same trail. Jamestown too was first a socialist society where each produced according to his ability and received according to his need, which, of course, affected supply. One cannot divide what does not exist. Our textbooks tell us that only one of twelve survived the first two years for precisely the same reason, starvation. The problem, as noted by Tom Bethel in his work The Noblest Triumph: Property and Prosperity through the Ages, was identified by an unnamed participant as “want of providence, industrie and government, and not the barenness and defect of the Countrie.”
Captain John Smith is credited with having saved the floundering colony by his “no workie, no eatie” government program (once again, the Virginia Company was the government) and was hated for it. Addicted to the promise of getting something for nothing, even if it is always less than promised, the receiving part of the population will always oppose their not getting their “fair share.” Sound familiar? Captain Smith was eventually carted off to England in chains as fast as the parasitic population could do so. Once again, why? Philip A. Bruce in his Economic History of Virginia in the Seventeenth Century, p. 121 called it agricultural socialism. “The settlers did not have even a modified interest in the soil…. Everything produced by them went into the store, in which they had no proprietorship.” When settlers finally were allowed to own their own property, and keep what they produced, things changed over night.
Colony Secretary Ralph Hamor wrote of incoming prosperity, beginning in 1614, after ownership of land was allowed. “When our people were fed out of the common store, and labored jointly together, glad was he [who] could slip from his labor, or slumber over his tasks he cared not how, nay, the most honest among them would hardly take so much true pains in a week, as now for themselves they will do in a day, neither cared they for the increase, presuming that however the harvest prospered, the general store must maintain them, so that we reaped not so much corn from the labors of thirty as now three or four do provide for themselves.”
This Thanksgiving let us be grateful for the prosperity that we have—even the poorest among us. Jamestown and Plymouth set us upon a course that recognized that prosperity requires incentive to flourish and that the profit motive stimulates industry. We are so grateful that, having recognized the poison of “the share the wealth” philosophy, they purged it from their midst and proceeded to make America the most prosperous country on earth.
We remain mostly a socialist country but the plunge deeper has been avoided for now and we have a chance to set a new course distancing ourselves more fully from it, as did they. Will we be so smart? Let us share this message at the table as we feast upon turkey and pumpkin pie this Thanksgiving Day so that our children will know how prosperity is really produced.
Dr. Harold Pease is a syndicated columnist and an expert on the United States Constitution. He has dedicated his career to studying the writings of the Founding Fathers and applying that knowledge to current events. He has taught history and political science from this perspective for over 30 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.
By Dr. Harold Pease
With elections signs all around it might be well to be reminded that it is unrealistic to expect national candidates to follow the Constitution when we did not insist that they did so in state, county and city offices. After all, many simply move up to higher office. Some may even view the Constitution as irrelevant at these levels.
Several years ago in California at a public debate for county supervisor the public was invited to offer questions in writing. I did so and watched the monitor of the debate, with a puzzled look on his face sideline my question in preference to others. I presumed it was because it had something to do with the Constitution, which, unfortunately, is considered by many an irrelevant topic at the city, county, or even state level. You are supposed to ask what “goodies” from taxpayer funding are you going to give me and is it more than your opponent?
So what does the Constitution have to do with local or state issues? Everything!! First, it is the only document that every single elected public servant swears to uphold. So the Founders must have thought it relevant at every level.
Second, candidates at lower levels successfully rise to higher levels because of the name recognition obtained at lower levels and eventually become members of the House of Representatives and U.S. Senate, often without ever having read the Constitution they are specifically under oath to protect. When I worked as a legislative assistant in the U.S. Senate some years ago, I was certain at least 50% had never read it at any level of government. Today I would be surprised if those who had read it exceeded 10%. But no one asks candidates, even while campaigning at the highest levels, when they last read it.
So again, why does this matter? Historically, the two enemies of freedom are: 1) it is the nature of all governments to pull decision making power upward to the seat of government and, 2) the more apathetic and indifferent the population becomes the greater the tendency of the people to push decision making power upwards to the seat of government. When these two forces work together it always leads to the central government eventually having most of the power. The Constitution is full of “handcuffs” to keep decision-making power from getting to the top thus maximizing it with the individual. The Founders overriding philosophy of government, if it could be penned into one sentence, was, “never elevate to a higher level that which can be resolved at a lesser level.”
Even a casual look at the Constitution reveals the separation of powers on the federal level into three distinct branches the legislative, executive, and judicial—each with a specific list. For Congress it was a list of the four types of law they could make (Art. I, Sec. 8), for the president it was the types of executive functions he could execute (Art. II, Sec. 2-3), and for the Supreme Court the types of cases it could adjudicate (Art. III, Sec. 2). The lists exist to both restrict them and to prohibit the concentration of power into one branch. The only type of federal government authorized by the Founders was decidedly a limited one. States, counties, and cities have all the powers not listed, as per Amendment 10.
When these limitations are not understood and protected at lower levels of government, the federal government is constantly tempted to steal authority from the states or counties as per its confiscating environmental, health, and education issues, which are constitutionally 100% non federal government issues. States, counties, and cities should use the Tenth Amendment to tell the federal government to “butt out.” “You have no constitutional authority.” When Congress passed, and the President signed into law, the National Defense Authorization Act, December 31, 2012, both states and counties should have written Congress and the President. “You do not have the right to void Amendments 4, 5, 6, and 8, of The Bill of Rights and the Writ of Habeas Corpus for our citizens. The military shall not arrest any of our citizens.”
It comes to this. Sixty years ago it may not have made much difference if a county supervisor/commissioner, or city councilman, swore allegiance to a Constitution that he had not fully studied, or worse, even read. The federal government had not yet absorbed his area of jurisdiction. Now it has! There is hardly an area where the federal government does not have its tentacles embedded, from school lunches to cross gender bathrooms. Over thirty years ago a city councilman complained to me that a third of what he voted on was already mandated because sometime in the past the council had accepted the “free money” which now obligated him. School districts are notorious for having done the same thing.
City, county, and state leaders, you are our buffer from the federal government taking from you your areas of jurisdiction. They have done so for many years because you were complacent in it, or ignorant of the Constitution. Consequently you have lost a large portion of our liberty. Today your understanding of the document must be known BEFORE we place you in power.
This election let us find leaders with Constitutional fire in their bellies to undo the precedents that their predecessors created. All issues on the city and county level are directly or indirectly constitutional issues. We now expect leaders to know, and abide by, the document that they swear to uphold.
By Harold Pease, Ph. D
States should not sue the federal Government to obtain rights they already have under the Tenth Amendment of the Constitution because doing so undermines—potentially to oblivion—that Amendment. It 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.”
The proper constitutional state response to the Obama directive of May 12, 2016, allowing transgender students in public schools to use bathrooms and locker rooms consistent with their chosen gender identity, should be to ignore it and forward a letter to the president reminding him that transgender bathrooms, or anything like unto them, are nowhere listed in the enumerated powers of the Constitution Article I, Section, 8 and have not been added by way of amendment.
States using the 10th Amendment should also encourage other states to do the same thing. If the eleven states presently suing the federal government for abuse of power instead took this course, the president would back off—proportionally, more so, as states refusing compliance on constitutional grounds, enlarged. This approach not only does not allow the federal government to weaken the 10th Amendment, but frees the state from costly litigation and the schools from costly implementation. Resolvement is also immediate. Progression through the lower courts to the Supreme Court takes years for resolvement, which is not likely to happen in the Obama Administration. While we wait the administrative objective is, in effect, fait accompli.
The choice to litigate rather than use the 10th Amendment not only implies that the federal government might have some measure of jurisdiction but allows a federal branch of that government sole power to decide. Rare has been the modern Supreme Court decision that limits federal power or protects the separation of power between the federal government and state government. Consider recent decisions on national health care, also not an enumerated power and therefore 100% a state power. State protection of state sovereignty becomes impossible should the Court rule against suing states. States will have neutralized themselves.
Those advocating the litigation process have forgotten the role of federalism in our republic—that two governments, one primarily for foreign affairs, the other for domestic affairs, each coequal, were established in the Constitution. This was the first separation of powers—those not specifically given by the states to the Federal Government belonged to the states. It supersedes the second division of power that of the creation of the legislative, executive, and judicial branches in the Constitution, which then divides the power left to the federal government. The Founders viewed the enumeration of responsibilities in the three branches they created as sufficient.
Fortunately the states, fearing a future over-reaching federal government, insisted on an amendment in the Bill of Rights restating what was then the obvious, before they would ratifying the Constitution. This, in order to protect more fully the separation that had been established—their right to be coequal—thus the 10th Amendment to the Constitution. Thomas Jefferson explained it best when he said, “The states are not subordinate to the national government but rather the two are coordinate departments of one single and integral whole…. The one is domestic the other the foreign branch of the same government.”
The Supreme Court serves a very important role as the umpire in keeping the division of power between the three branches separate but cannot nullify or adjudicate to oblivion the first separation of power, that between the two coequal governments. If a power is not enumerated in the Constitution, having been given to the federal government by consent of the states, in a process outlined in Article V, it belongs to the state and no decision of the Supreme Court can change this. Keep in mind that judicial review, now the peg post to hang most Supreme Court decisions, was not effectively established until Marbury vs. Madison in 1803, thirteen years after the Constitution went into effect and long after the establishment of State authority to nullify federal over-reach.
Perhaps Alexander Hamilton said it best when he wrote that every act outside of enumerated authority is contrary to the Constitution and thus is void. Hamilton continues, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm … that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid” (The Federalist, No. 78, p. 467).
Again, States should not sue the federal government over transgender bathrooms or anything else to obtain rights they already have under the Tenth Amendment of the Constitution. What they need instead are governors and legislatures with a better understanding of the document and “fire in their bellies” to protect the Constitution they have sworn by oath to preserve. The federal directive for transgender bathrooms is the most outrageous abuse of the enumeration clause of the Constitution ever and therefore the most likely abuse to gain public support for state nullification. It is passed time to use the Tenth. Have we governors that will do it?
Harold Pease, Ph. D
The most important question with respect to the takeover of the Malheur National Wildlife Refuge by Oregon ranchers remains unanswered by the press covering the story. Why does the federal government own 52.6 percent of Oregon leaving them owning but 47.4 of themselves? It does not own New York or Virginia or Massachusetts. Those occupying the Refuge say that the state of Oregon rightfully owns the land and federal occupation is unconstitutional. The Bureau of Land Management clearly considers the property the federal governments. Who is right?
The problem isn’t Oregon’s alone the percentage of land owned by the government exceeds fifty percent in Alaska (98.5), Nevada (87.7), Idaho (63.8), and Utah (63.6). Indeed, the federal government claims to own a third of all the landmass in the United States (Inventory Report on Real Property Owned by the United States Throughout the World, published by the General Services Administration, page 10). Government owns almost half of California (47.5 %). Basically the federal government did not give western states all their land when they qualified for statehood. States were so excited to get coveted statehood that they went along with the conditions despite the confiscation of, for most in the West, at least a third of their land.
States wanting their confiscated land returned, so as to be on equal footing with 19 sister states who actually own their land, call their long-term bid to do so the Sage Brush Rebellion. Equality between states was established by giving them equal representation in the U.S. Senate, thus the assumption of the Founders was that property would follow. Without it they are not on equal footing and instead may be more servile to the federal government than states that own themselves. This could negatively affect our system of government known as federalism as states collectively serve as a check on federal overreach. This check is impaired when the federal government owns part or most of their land.
But this is not the most serious violation of the Constitution. The Founders understood that the size of land holding was proportionally related to the perceived size of the federal government and they intentionally wanted that perception small. The Federal government was permitted to have but 10 square miles for a federal capital. The only other land that they could acquire had to be for military purposes as specified in the common defense clause of the Constitution, Article I, Section 8, Clause 17 which reads: “and to exercise like Authority over all places purchased by the Consent of the Legislature of the State in which the same shall be for the Erection of Forts, Magazines, Arsenals, dock Yards, and other needful Buildings.”
Any new acquisition, outside the capital, had (1) to be purchased, (2) have the consent of the State Legislature where the land exists, (3) and be for military purposes. None of these constitutional requirements were met with respect to any of the states cited above although some military bases do exist in most of them. Nor have there been any additional amendments to the Constitution authorizing additional federal ownership of land as required for any additional federal power. Constitutionally there exists no federal land or Bureau of Land Management or even public land.
Again, in the case of the Oregon ranchers occupying Malheur National Wildlife Refuge near Burns, Oregon, the land in dispute was not purchased by the federal government, did not receive the consent of the Oregon State Legislature for sale to the feds and is not for military purposes. The fact that the federal government acquired it fraudulently in the first place, or that both political parties have ignored this part of the Constitution for over a hundred years, does not make federal confiscation now constitutional. Constitutionally the Oregon ranchers have more right to be there than does the Bureau of Land Management. Still, the rancher stand is not practical given our long-term departure from the document and to get back to the Constitution some may do jail time, as have others like Martin Luther King, Jr. Freedom has never been cheap.
Having someone willing to stand, although in no way do I support forcibly taking over the Refuge, Sage Brush Rebellion states now have the opportunity to seize this moment to remind the federal government that they too want their land back. The event should, however, start a healthy national conversation and resolution should process through the state legislatures. If states now stand together resolution in their favor is more probable than ever.
One suggestion is for Oregon Governor Kate Brown to declare the contested land under state jurisdiction until the Oregon State Legislature has time to weigh in. Taking back this infinitesimal amount of the whole that is claimed by the federal government will set the stage for more acquisitions by other states later. The governor would become an instant hero in the western states. This solution would diffuse the standoff between citizen and federal government moving it to the state instead where it belongs. Why do citizens have to make the case, which should be made by a state? The governor would give strength to two objectives—returning fraudulently acquired land to the states and getting back to the Constitution.
By Harold Pease, Ph. D
When the Supreme Court no longer rules by the Constitution what must states do to force them to do so? It is called nullification and previously has been used to do just that in the 1800’s and more subtly in the last two decades.
Recent Supreme Court rulings with respect to the Affordable Care Act and marriage clearly demonstrate that the Supreme Court no longer honors Article I (requiring that only the Congress make all the law, their rulings can not have the effect of making new law), Article 1, Section 8 (the list identifying federal functions), and the 10th Amendment (reserving to the states all other powers not listed or added to the list by a specific amendment). Neither health nor marriage, or anything remotely like unto them, can be found in the Constitution as federal powers and thus, as per Amendment 10, remain state functions only.
Two years ago 28 states sued the federal government for constitutional over-reach by forcing citizens to buy something that they did not wish to buy called a mandate. The John Robert’s Court, rather than rule this requirement constitutional or unconstitutional, redefined the mandate a tax, (an argument consistently denied by proponents of the law) and thus the Supreme Court effectively made law, a function constitutionally left only to Congress in Article I. In a show of defiance to the Affordable Care Act, this decision prompted 34 states (all but 16) to refuse to establish state exchanges when given a choice by the Court; essentially “If you want it you create it.” They did!! The recent Supreme Court ruling then made resisting states provide the Medicare subsidy given the few states that had set up exchanges. No constitutional authority was cited. Again judicial legislation!! The reason cited by Justice John Roberts was essentially, “Congress created it so we will save it.”
At this point the only power left to the states is the 10th Amendment to the Constitution which 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.” The 28 states initially suing the Federal Government for violating this part of the Constitution and the 34 states resisting the judicial edict to conform must use the Doctrine of Nullification to save the amendment and the Constitution. The issue is that serious! They have no other real choice for a court that no longer uses the Constitution as its sole base for ruling. Federalism, a key part of our republic, is dead otherwise.
The constitutional argument is the same for the Supreme Courts recent ruling legalizing same-sex marriage in all 50 states. Again, the Court disregarded Article I, Section 8, and Amendments 1 and 10 and utterly discarded the philosophy of federalism and the will of the people expressed in every election concerning the matter. Everything in the Constitution prior to 1868 was discarded, even betrayed, in favor of four words in Amendment 14 adopted 78 years later and intended only to extend the Bill of Rights to former slaves. The phases “due process” and “equal protection,” not defined, became fertile soil for federal government’s natural tendency to grow many times beyond original intent—each expansion becoming the rational for even more expansion. Today the Justices have used it to apply to an issue that would be entirely foreign to the framers of the 14 Amendment and to the Founding Fathers a lifetime before.
So again, the states have but one recourse to save the Constitution, federalism and the popular will of the people—nullification. But they must stand together and with one voice say, “not in our state.” States accepting same sex marriage can continue to do so constitutionally but the federal government, without an amendment to the Constitution transferring marriage authority from the states to the federal government, may not do so constitutionally no matter what a combination of five rogues justices say.
Founding Fathers Thomas Jefferson, James Madison, and Alexander Hamilton were especially expressive with respect to the use of nullification but what is clear in their writings is that states do have the authority to “Just Say No!” under the 10th Amendment. Such was used in 1798 in the Kentucky and Virginia Resolves, in 1832 in the Nullification Crisis in South Carolina, and more successfully with the northern states, especially Wisconsin, in 1854 over the highly unconstitutional Fugitive Slave Act.
More recently the 10th Amendment and resulting Doctrine of Nullification is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. Federal medical marijuana laws are openly defied by many states notably: Alaska, Oregon, Washington, and Colorado. Twenty-three states and the District of Columbia currently have laws legalizing marijuana in some form. States’ refusal to implement the Real ID Act, passed years ago, is a form of nullification. When enough states say no, the feds back away. In 2013, nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they would protect their people on this issue—even against federal agents coming into their counties. Barack Obama and the Justice Department backed away.
States you must use the Constitution to save the Constitution. In unison you must say, “We refuse to honor these clearly unconstitutional rulings in our state.”
By Harold Pease, Ph. D
Anyone the least bit familiar with the Constitution and its early history knows that, despite lip-service to it, neither political party follows it, nor do any of the three branches of government actually limit themselves to their specific articles in it. All three operate outside the carefully crafted cages to which they were assigned. So how do we get the federal government back to servant rather than master? Well-meaning conservatives are wrong in their push for a new constitutional convention for the following reasons.
To begin with, why argue to get what you already have? It is a far weaker argument because it implies uncertainty on your part that you already have it. The federal government is already limited by the existing Constitution: Congress to a precise list in Article I, Section 8. The President is limited to a list housed in Article II, Sections II and III. The Supreme Court is limited to eleven types of cases most with but appellate (limited by Congress) jurisdiction and only two totally free of the restrictions of Congress called original jurisdiction. All other power was reserved to the states as per Amendment 10 of the Bill of Rights. Again, to argue that we need additional amendments to get the federal government to abide by what was already understood as their limits of power is to argue to get what we already have.
An argument within the Constitution is much easier to make than asking that three fourths of the states accept something new and somewhat foreign to them. Three-fourths of the states is a big number and takes many years to acquire, and in a nation somewhat constitutionally illiterate is likely to fall short of the states needed. Meanwhile, the case for living within the Constitution can be made today because a majority of the people was taught some level of reverence for it. Showing them how the federal government has strayed from clearly cited restrictions in the document is a much easier case to make.
The argument that we have already unsuccessfully tried to keep the federal government within constitutional bounds is legitimate. But to suppose that a George W. Bush or a Barack Obama will stay within the bounds of new amendments when, with impunity, each has violated those amendments in existence is as naive as believing that more gun control laws will cause the criminals to turn in their guns.
A new Constitutional Convention potentially exposes everything that we already have placing everything at risk. Where is the basis for faith that the new “Founders” will not tamper with established basics? Three Twentieth Century amendments seriously damaged previously sacred foundation points of a republic: the 16th gave the federal government unlimited resources to spend in areas not listed as their function in Article I, Section 8 and the states lined up with alms bowls in hand for the grants. The 17th removed State influence and consent in lawmaking thus irreparably damaging the concept of federalism so critical to limiting the power of the federal government. The 18th outlawed the consumption of alcohol in the nation for ten years giving the government the right to tell its people what they can drink.
Some argue that we can limit the extent of change in a new convention. It is well to remember that the original delegates to the Constitutional Convention were not authorized to dump the Articles of Confederation, but did, exposing everything that then existed. Can proponents of a new convention guarantee that that could not happen again? No!
Why would we suppose that new founders would have an equal to, or superior, understanding of natural law upon which the Constitution was based? We assume that the states will be anxious to get their powers restored to them but where is the basis that they see such a need? Do not almost all elected federal government personnel first serve in state legislatures then abandon the state perspective when they reach Washington DC?
Finally, the enemies to limited federal government yearn for a constitutional convention as well. They want everything dictated from Washington DC—an all-powerful government. Such groups as Wolf-Pac, AFL-CIO, Code Pink, Progressive Democrats of America, and the forty-five political action organizations funded by George Soros (New American, April 7, 2014, p. 18) are just waiting for the opportunity to empower themselves and government more fully. Who can promise that they will sit idly by while we further limit their ability to manage us?
Holding to the Constitution with exactness is our only real secure way to take back our country. Our weapons are the limiting clauses of the Constitution and Amendment 10 of the Bill of Rights. Political parties have failed us. Encouraging our people to become Constitutionalists first is a better approach. As tyranny grows so will support for our cause. Conservatives and liberals please don’t risk losing everything by an ill-conceived constitutional convention. The answer is to make the government abide by what they have by oath promised and, when needed, carefully craft new amendments one at a time, as for example a balanced budget amendment.