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Defending California Governor Brown’s “We can handle our own prisons.”

By Dr. Harold Pease

In early summer California’s Governor Jerry Brown and Jeffrey Beard, the state’s corrections chief, were in great danger of being held in contempt by three federal judges for willful defiance of a court order requiring the administration to meet a Dec. 31 deadline for reducing the prison population in California. Brown had previously asked the federal government to back off on federal mandated prison requirements, “We can handle our own prisons,” he said. Can he constitutionally say no to the federal government? Yes, and he should.

Besides the obvious, that Californians do not want their convicts returned to society too easily, voiding the acts of juries and judges after their having spent thousands of hours deciding what is just with respect to their crimes and their danger to society, federal enforcement of such is unconstitutional. The Constitution gives the federal government only 17 grants of power, listed in Article I, Section 8 and managing federal prisons is not one of them, nor has it been added to the Constitution by way of amendment. In fact, the Constitution names only four crimes that Congress has the power to penalize and they are: counterfeiting (Article I, Section 8, Clause 6), piracy on the high seas, offenses against the law of nations (Art. I, Sec. 8, Cla. 10), and treason (Art. III, Sec. 3, Cla. 2). Outside these four crime areas there can be no federal law or crime without a new amendment. All other areas are entirely under state jurisdiction as per Amendment 10.

If the governor wished to follow the Constitution as designed, he could designate one or more facilities as being federal, move all prisoners that had committed crimes in the above four areas to that facility and with them be fully compliant with federal law. With respect to the other prisoners he might notify the federal government again that “We can handle our own prisons” and that the federal government has exceeded its Constitution jurisdiction. This is a state function per the Tenth Amendment. He should publicize his constitutional arguments with his sister states and, if possible, enlist similar action on their parts. Some of us would love to assist a democratic governor in leading the charge back to the Constitution.

Why is it important that he, and other governors, do this? It is the pattern of the never-ending enlargement of the powers of the federal government, at the expense of state prerogatives and the 10th amendment, that is transforming the federal government from a republic, as understood by the Founders, into something else. It is constitutional defilement. The use of Amendment 10 is central to the restoration of freedom from government and the return of checks and balances, of which state jurisdiction is essential, before all power is housed at the federal level and we are more clearly no longer free.

Unconstitutional overreach is epidemic and there is now finally measurable push-back. The “check and balance” part of the Constitution is the 10th Amendment of the Constitution and the Doctrine of Nullification. States do have the authority to “Just Say No!” but to be effective they need to do so collectively, the larger the group the more effective. 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. In previous columns I have treated the highly favorable views of the Founding Fathers on the subject most notably Thomas Jefferson, James Madison, and Alexander Hamilton.

Finally, the 10th Amendment is beginning to be used by some states to prevent the federal government’s overreach of constitutional powers. 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.” Federal medical marijuana laws are openly defied by many states. States’ refusal to implement the Real ID Act, passed years ago, is a form of resistance. When enough states say no, the feds will back away. Examples of federal overreach are everywhere. Even the federal ban on incandescent light bulbs, is an example of intrusion into state power. Dozens more could be listed. This has to stop!

In 2013, twenty-six states showed their resistance to Obamacare by opting out of the Obamacare health care exchanges. Nine State Sheriffs’ Associations put the Executive and Legislative Branches on notice that they will support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs inferred that they will protect their people on this issue—even against federal agents coming into their counties. So, California Governor Jerry Brown has good company in his, “We can handle our own prisons,” nullification efforts.

Founding Father Alexander Hamilton also Supported States Nullifying Unconstitutional Federal Laws

By Dr. Harold Pease

Finally the 10th Amendment is beginning to be used by states to prevent the Federal Government’s overreach of Constitutional powers. 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.”

Last I heard 26 states were showing their resistance to Obamacare by opting out of exchanges. Nine State Sheriffs’ Associations have put the Executive and Legislative Branches on notice that they will support the traditional interpretation of the 2nd Amendment of the Bill of Rights and 336 elected county sheriffs have inferred that they will protect their people on this issue—even against federal agents coming into their counties. Federal marijuana laws are openly defied by some states. States’ refusal to implement the Real ID Act, passed in 2005, is a form of resistance. Even Governor Jerry Brown on federal mandated prison requirements, earlier this year, suggested that the Federal Government back off, “We can handle our own prisons.” When enough states say no, the feds will back away.

Unconstitutional overreach is epidemic and there is now measurable push-back. The “check and balance” part of the Constitution is the 10th Amendment of the Constitution and the Doctrine of Nullification. States do have the authority to “Just Say No!” but to be effective they need to do so collectively, the larger the group the more effective. We have previously covered its use in 1798 and 1832. We have treated Thomas Jefferson and James Madison, Fathers of the Declaration of Independence and the Constitution, on the subject. This column restricts itself to arguments made in support of this doctrine by Alexander Hamilton traditionally seen as an advocate of a strong federal government and thus the “father” of American liberalism. All emphasis in his quotes is his own. Today proponents of big government incorrectly believe that every law, executive order, or judicial decision is constitutional.

He wrote, “If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed…. But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union… EXPRESSLY confines this supremacy to laws made PURSUANT TO THE CONSTITUTION” (The Federalist Papers, Hamilton, Madison, Jay, The New American Library, 1961, No 33, pages 204-205).

Thus the door which the less informed propose, that they can enforce any law that is passed by the federal government because of what is called the supremacy clause (“The Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme law of the land”), is closed. Those laws “not pursuant” to actual constitutional power are invasions of authority, even usurpations, and should “be treated as such.” So, the Constitution remains the supreme law of the land only so long as it remains restricted to original grants of power.

In fact, so strongly was it believed that the Federal Government not depart from original grants of power in the Constitution all federal authorities were required to swear by oath that they would abide by this understanding. Hamilton wrote, “It merits particular attention in this place, that the laws of the Confederacy, as to the ENUMERATED and LEGITIMATE objects of its jurisdiction, will become the SUPREME LAW of the land; to the observance of which all officers, legislative, executive, and judicial, in each State, will be bound by the sanctity of an oath. Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government AS FAR AS ITS JUST AND CONSTITUTIONAL AUTHORITY EXTENDS” (The Federalist Papers, No. 27, p. 177). Once again, original intent is the only constitutional interpretation permitted. Notice that the Supreme Court is not excluded from “the enumerated and legitimate objects of its jurisdiction” anything else are invasions of authority.

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).

So, what should happen when the Federal Government overreaches its enumerated powers? Hamilton answers this question also. “The Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents” (The Federalist, No. 78). Simply, states should use the Doctrine of Nullification—“It ain’t happening here.”

The states are the guardians of this principle Hamilton explains because they “will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent” (The Federalist, No. 26, p. 172).

There exists no argument for any other interpretation other than original intent in The Federalist Papers. Once again we have focused upon Alexander Hamilton because he is traditionally seen as an advocate of a strong federal government and thus the “father” of American liberalism. In a free society it is healthy to see the states exercising their united right to nullify; may they do so frequently. On following the Constitution all should be united.

Dr. Harold Pease is 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 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.

What if the Supreme Court Refuses to Protect the Constitution? What Then?

By Dr. Harold Pease

What if the Supreme Court became an arbitrator trying to please both sides rather than “letting the cards fall where they may,” ruling alone on constitutionality as designed? In the end neither side is really happy and the Court’s function is blurred or discredited. What if preserving its own image became more important to justices than defending the Constitution? Or worse, what if the Court forced a round peg into a square hole, so to speak, to force a decision not intended, or argued for by either side therefore creating new law—a function of Congress alone? What if all of the above were in one decision such as with the recent Supreme Court decision on National Healthcare? How can the states or people keep the Supreme Court in line with the U. S. Constitution? The answer is in the Constitution as understood by the Founders.

Our constitution first divided power between the states and the federal government with the powers given to the federal government listed, defined, and limited and those of the states left undefined and not listed, as per Amendment 10. This is known as federalism and is sometimes thought of as a marriage—shared and equal—neither the state nor federal government the master nor slave of the other.

The portion of power left to the federal government is then divided between the legislative, executive, and judicial branches. The down side of federalism (our marriage) is that the umpire is one of the three branches of government at the federal level and as such is likely to rule in favor of a strengthened federal government were it to arbitrate between the states and the federal government. It is equivalent to two adversarial teams playing basketball and the referee is a member of the federal team. The balancing component to this, potentially lopsided division of power, is the doctrine of nullification.

Is it constitutional to say no to the federal government when a state believes a Supreme Court decision to be unconstitutional? One having a limited knowledge of the Constitution would say no and cite Article VI, the supremacy clause, as the end of the matter. On matters listed in the Constitution he would be right, but this time the Supreme Court has ruled on something where it lacks authority to rule, clearly a state issue, and as such, if left unchallenged, certainly damages, perhaps even nullifies, the 10th Amendment of the Constitution, which leaves to the states all areas not delegated to the federal government. This understanding pre-existed any law on health by a couple of centuries.

To curb the umpire (Supreme Court), should he clearly favor one side, the Founders supported the doctrine of nullification. Rather than sue the federal government for having exceeded its constitutional power, the 26 states so doing should instead have followed the Idaho example and in essence said “not in our state.” The effort to grow the federal government beyond the listed bounds would have been unenforceable if enough states did so.

Such has two historical precedents. Thomas Jefferson in 1798 attempted to nullify The Alien and Sedition Acts created by his Federalist Party predecessors. These raised residency requirements for citizenship from 5 years to 14. Moreover, the law allowed the president to deport “dangerous” foreigners during times of peace and imprison them during times of hostilities. Anyone defaming or impeding government officials, including the president, was subject to heavy fines and/or imprisonment. Jeffersonians objected on the basis of the unreasonable empowerment of the president and the attack on the First Amendment, particularly freedoms of speech and press. They too said, “no will do.” Because nullification was better understood as part of the “balance formula” of the Constitution and because the offending law was designed to last only until 1801, (Federalists did not want it used against them should they lose the next election), nullification stayed in place.

Next to use the Nullification Doctrine was South Carolina with respect to the 1828 “Tariff of Abominations,” believed by them, and neighboring states, to be unconstitutional. Opponents to it declared it to be “null and void” within their border and threatened to take South Carolina out of the Union if Washington attempted to collect custom duties by force. President Andrew Jackson prepared to invade the state. A compromise Tariff of 1833 gradually lowered the tariff to acceptable levels and the issue faded away.

One might argue that the Civil War ended the Nullification Doctrine but the real root cause of the Civil War was the practice of slavery, (I am aware that the immediate cause was keeping the union together), which practice made a mockery of the whole liberty concept. The slave issue pre-dated the Declaration of Independence and I would need another column to show why the war did not exempt the nullification argument.

Critical to the success of the Nullification Doctrine is the number of states committed to it. Obviously one state or a few, unable to prevail at least a majority to follow, would be easily overpowered by an overwhelming federal government power. But if the 26 states, who sued the federal government on the mandate issue, now said we will not comply, the federal government would be forced to find a face-saving exit on the issue and back down. That is the final constitutional check on overreaching federal power—the one least talked about and understood. If, at this time, the states do not care enough to preserve their power they deserve not to have it, or liberty.

Dr. Harold Pease is 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 25 years at Taft College. To read more of his weekly articles, please visit www.LibertyUnderFire.org.