What is America about?

After getting into two highly acrimonious debates with individuals who are more interested in promoting political correctness than to listen to reasoned dissent, I have to ask myself what Americans think their country is about. 

The political division that currently exists suggests that there are three possible answers. The liberal would argue for economic, or redistributive “justice,” the neo-conservative would argue for power, and the libertarian for individual freedom. 

I have come to realize that constitutional and libertarian arguments will only make sense to those who value personal freedom – and it appears that for many Americans, that value is expendable. Those who see America in terms of economic equality or military power will support the notion that Ron Paul is an old crank who is off the rocker they think he should be seated on.  

"From each according to his gullibility,
to each according to his greed!"

The economic redistributionist rejects free enterprise, because it entails risk. Risk is unacceptable to the poor because they cannot, of course, accept financial loss; and is unacceptable for the rich because it creates wealth that (in their view) is not earned. Without risk, there is no opportunity, but for them that is a small price to pay. The end game, though, is to replace an elite based on wealth with one based on political correctness. For them, the goal is not really justice -- it is power for those who toe the party line. Their means is to write more extensive and tighter regulations to discourage anyone from taking any initiative that has not been blessed by their government.  

For such people, the charge of racism is a handy way to bully those who disagree with them. If you want to replace the welfare state, you are a racist. If you want an educational system that teaches young people how to find the truth, you are a racist. If you believe in the Anglo-American heritage of rule by law and would insist on using the English language so that everyone can fully understand that heritage, you are a racist. 

Those who see America’s purpose as being a military power see personal freedom as expendable to protect our “national security.” They cannot be persuaded by reasonable arguments that trade, diplomacy, and taking the moral high road can be effective levers to promote our national interest. They think applying the Golden Rule to international relations is ridiculous and perhaps even dangerous, and then they wonder why the Iraqis and the Afghans are intent on getting us out of their countries – after all, we came on a mission to build free and fair societies – according to our customs and standards. Ask the neocons about how they would feel if, for example, the Chinese invaded this country on the same basis, and they will mutter something about “American exceptionalism.” 

To a reasonable person, “American exceptionalism” is nothing more than arrogance, pure and simple. 

As I was recently reminded, those who see America in terms of power cannot understand any argument that undermines their almost religious belief that Abraham Lincoln was the greatest (or maybe second greatest) of Presidents. Yes, he preserved the Union, but was it really worth the cost: 660,000 battlefield casualties, the mass murder of Georgia’s civilians during Sherman’s March to the Sea, his blatant hypocrisy on slavery? The surrender at Appomattox began a process of consolidation into an all-powerful federal government that continues to this day. We had a Constitution to protect our rights. Why did he find it necessary to destroy it in order to save the Union? If the issue was slavery, he could have followed the lead of Britain and France (which Brazil later followed) and simply bought out the slaveowners, which would have been cheaper than going to war. If he valued freedom, he could have shown good faith to the Southerners who were willing to negotiate a settlement to prevent their secession.

When looking at mysteries of this kind, some wise people have said, “Follow the money.” Prior to the Civil War, wealth was fairly evenly spread across the land – North and South. Lincoln was backed heavily by New York bankers, who greatly benefitted from his rule. In the 1870s, wealth heavily concentrated in New York City, while the South was reduced to abject poverty, and would remain so for nearly a century.

Fergit, hell!

The evidence for each of my statements is easy enough to find in any standard history of the Civil War or Reconstruction; but of course, my bringing it up is “revisionist.” And, of course, the neocons join the liberals in promoting the notion that any white male whose family has resided in the South more than a generation or two is the absolute scum of the earth. That notion is completely contrary to reason if you believe that people are individuals who deserve to be judged by the content of their character and not the color of their skin or the accent of their voice; but Lord, don’t let Martin Luther King, Jr.’s beliefs stand in the way of those who loudly sing his praises! And Christians should keep their religion to themselves if they aren’t willing to idolize the state, support foreign wars, and promote social conservatism!

Just before I wrote this, I asked myself how anyone could believe in personal freedom and not let those who feel they have been wronged to form their own nation; especially when they respected law enough to follow due process as it was understood prior to 1865.

I thought I didn’t get it. Unfortunately, I do now. The way the Republican Presidential primary is shaping up, it is becoming clear that America is not about personal freedom. If President Obama is defeated in November, we will establish that America probably is not about redistribution of wealth, at least not the way the Democratic and Socialist idealists look at it. So I guess it's about power. We will continue to be ruled by those who have the most to gain from holding power.

It’s enough to make a grown man cry.

I’m finished ranting now. Please return to your regularly-scheduled programming.

Ohio for Ohioans Amendment: Good idea, but needs work

Yesterday, I introduced the proposed "Ohio for Ohioans" Amendment to the Ohio Constitution to provide a means to effectively enforce nullification of federal statutes in violation of the U.S. Constitution and state statutes in violation of the U.S. and Ohio Constitutions.

This proposal presents several constitutional and legal problems.  Foremost among them is its rather gross violation of the separation of powers principle. The proposed amendment allows the Governor and Attorney General to "collectively" form a Constitutional Review Committee to "compel" the Supreme Court to rule on legislation deemed unconstitutional within 30 days (of what?). It also allows the Governor and Attorney General to "compel" the Ohio General Assembly to invoke impeachment proceedings against public officials who violate their oaths of office. These provisions suggest that their author is not well educated in constitutional law; because one of its most fundamental principles is that the Executive (Governor and statewide elected officials), the General Assembly, and the courts cannot "compel" each other to do anything. The General Assembly initiates impeachment proceedings on its own volition. The Ohio Supreme Court rules on cases that originate in Ohio's trial courts.


Another example of sloppy legal language lies in the statement that

All Ohio Citizens shall have legal standing in all Ohio courts and jurisdictions to challenge the constitutionality of any Ohio law, federal Law, and all government imposed rules, regulations, and mandates that directly affect them on the behalf of all Ohio Citizens.

No. The existing legal procedure is established to maintain an orderly process. This paragraph should omit "in all Ohio courts and jurisdictions."  To apply this clause as stated would make mincemeat of the Ohio judicial system. The amendment should enable all Ohio citizens to challenge constitutionality by filing suit in the county Court of Common Pleas or in a special state trial court established for this purpose. Even so, who will be the trial lawyer to defend the federal government? I cannot imagine any federal attorney deigning to follow a state procedure in what the feds are sure to consider a gross violation of the Supremacy Clause.


I would favor a well-written amendment to assert Ohio's sovereignty, and this one comes closer; but it needs the hand of an attorney who is skilled in constitutional law.

State sovereignty amendment introduced

Steve Kraus is a candidate for Congress in Ohio's 9th District (a district that is, tentatively, a string bean following the Lake Erie shore between Toledo and the eastern edge of Lorain County (between Lorain and Cleveland). In his "Hope for Ohio" website, he endorses the "Ohioans for Ohio" amendment to the Ohio Constitution, the text of which is at the end of this post.

The Ohioans for Ohio amendment is intended to assert Ohio's state sovereignty and right to nullify unconstitutional federal laws; and to hold Ohio's elected officials accountable for enforcing Ohio's sovereignty. It is sure to be controversial, because for many Ohioans (and probably, the U.S. Supreme Court), it will appear to be a challenge to the Supremacy Clause in the U. S. Constitution, Article VI, Clause 2, which reads:

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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The legal basis for the Ohioans for Ohio amendment lies in the phrase "which shall be made in Pursuance thereof." A reasonably literal interpretation of that phrase strongly suggests that any laws that are patently unconstitutional (not being made "in Pursuance thereof") are null, void, and no law. This then brings up the central issue of nullification. Do the states have the right, as Thomas Jefferson and James Madison* asserted in 1797, to provide a check on the Supreme Court by nullifying unconstitutional federal laws within state boundaries? The Ohioans for Ohio amendment is careful to state that it does not apply to "any law, rule regulation, or mandate... not in contention with the prescribed authority granted to the federal government by the Constitution of the United States of America."

This proposal is much more concise than the amendment proposed in 2009 by the People's Constitutional Coalition, and actually comes close to the improvements I suggested to that amendment; but it still needs work. Tomorrow, I shall explain why.

Here is the text:

Be it resolved by the people of the state of Ohio,

(A) Declaration of State Sovereignty
The State of Ohio hereby claims its sovereignty, pursuant to the Tenth Amendment to the Constitution of the United States of America and shall exercise self-determination and self-rule over its government, commerce, education, environment, and energy resources within its domain and within the interests of Ohio citizens and according to law, unconstrained of all foreign authorities, and not in contention with the prescribed authority granted to the federal government by the Constitution of the United States of America. Any law, rule, regulation, or mandate which is not compliant to the Ohio Constitution or the Constitution of the United States of America shall be deemed unconstitutional, null and void and without legal force or effect within Ohio.

(B) Enforcement of Constitutions
The Governor or Attorney General are hereby vested with the power to compel the Supreme Court of Ohio to submit a decision within thirty (30) days regarding the constitutionality of any Ohio law, rule, regulation, or mandate or any federal law, rule, regulation, or mandate, whenever it appears that said law rule, regulation, or mandate may not conform or be in compliance to the Ohio Constitution or the Constitution of the United States of America, respectively. The Governor and Attorney General, collectively have the authority to form a Constitutional Review Committee and to vest this committee with the power to compel the Supreme Court of Ohio for said decisions. All Ohio Citizens shall have legal standing in all Ohio courts and jurisdictions to challenge the constitutionality of any Ohio law, federal Law, and all government imposed rules, regulations, and mandates that directly affect them on the behalf of all Ohio Citizens. The Supreme Court of Ohio shall provide a process for such challenges which demonstrate viable Constitutional merit.

(C) Violation of Oath or Oaths
It shall be unlawful for any elected public officeholder to violate their oath or oaths in accordance with Section 7 of Article XV of the Ohio constitution. The Governor and Attorney General, collectively or individually, are hereby vested with the power to compel the Ohio General Assembly to invoke impeachment proceedings against such alleged offenders, in accordance with Section 23 of Article II of the Ohio constitution.

* Keep in mind that James Madison is known to history as the "Father of the Constitution" and one of its most fervent supporters in the ratification debates. He surely would have considered the intent of the Framers when writing it.

Pre-Constitutional Rights

Jim Babka is a Cuyahoga Falls resident who runs the DownsizeDC Foundation, which runs DownsizeDC.org, a site which helps individuals generate e-mails to members of the Congress. He has come up with an idea that deserves being spread.

There is no such thing as "Constitutional" rights.

Why? Because our Founding Fathers made it clear that our human rights come from God (or if you prefer, "the state of nature."). The Constitution does not; and as the Ninth and Tenth Amendments make clear, cannot enumerate our rights. It does, however, list all of the powers of the federal government.

If our rights were based on the Constitution, they could be erased by court decisions or by replacement of this Constitution with something else. The same rights, by the way, apply to everyone else who sets foot in this country. Everyone else, including alleged jihadists -- because they are rights applicable to all humanity. It has to be this way, because we do not want to punish innocent people, and the only way we can avoid punishing innocent people is to ensure that all people receive due process of law.

With this in mind, we need to talk about pre-Constitutional, or natural rights. Mr. Babka concludes:

Pre-constitutional rights are necessary to a natural law viewpoint; the philosophy held by the signers of the Declaration of Independence, the framers of the Constitution, the ratifiers of the Bill of Rights, AND Downsize DC. We shout it loud and proud -- "Pre-constitutional rights precede and are superior to Constitutional rights."

Obviously, we're still grateful that our pre-Constitutional rights are acknowledged in the Constitution. It's important that the requirement for The State to protect these rights is the law of the land, because those who covet State power constantly seek to harm humanity. But . . . 

If we're depending on the whims of the employees of The State to protect us, simply because we're all Americans, then our faith is misplaced. The Constitution cannot protect a people who fail to vigilantly understand from where it is their rights derive. Neither can the protection of those rights be honestly maintained if we're unwilling to acknowledge that everyone else has these rights too, NOT JUST CITIZENS. Remember the Golden Rule!

To deny that human rights are inalienable in any one case, it to deny them in every case, including your own. 

If you are not registered with DownsizeDC.org, I encourage you to join.


And I will encourage all of my readers henceforth to act in support of our pre-Constitutional rights!

So Presidents don't need to know the Constitution now?

I heard this exchange Saturday during the Republican candidate debate in New Hampshire (Los Angeles Times report):

George Stephanopoulos: Governor Romney, so you think that states have the right to ban contraception or is that trumped by a constitutional right to privacy?

Mitt Romney: George, this is an unusual topic that you're raising... states have a right to ban contraception, could it constitutionally be done? We could ask our Constitutionalist here, (motioning over to Ron Paul) uh...

George Stephanopoulos: I'm sure Paul could answer the question, but I'm asking you, do the states have that right or not?

Mr. Stephanopoulos and Mr. Romney went back and forth for several minutes. Mr. Romney eventually made a grudging admission that yes, the states do have that right, but of course, no state is considering it.

So what kind of President do you want? One that is attractive and says what you want to hear (with the risk that he will make a contrary statement that someone else will want to hear), or a President who will obey his oath to preserve, protect, and defend the Constitution?

Virtual buckeye to Sherry Mann.

It's about the OATH, stupid!

As we all know, journalists like to create controversy in the oddest places. One of the questions that arose in last Saturday's debate was "Is marital fidelity important in a President?" The other candidates took potshots at Newt Gingrich.Here are the highlights of last Saturday's ABC News/Yahoo! Republican debate, which includes his answer to this question. 

Ron Paul gave the correct answer, which is that obeying an oath is a sign of character. Dr. Paul said that while marital vows are important, the oath that really matters is to "preserve, protect, and defend the Constitution of the United States."

Dr. Paul is the only candidate who has consistently worked to do just that over 30 years. That should speak volumes about his character, and about what he would do as President.

We the sheeple of the United States...

Mike Adams at Natural News reports of a study conducted in the early 1960s, known as the Milgram experiments, which shows that 70% of people will administer painful, even lethal, electrical shocks if told to do so by a researcher. Now this is psychological research, and no one was really harmed. The "shocks" were signals given to an actor to feign pain. The researchers used psychological tricks like warning the subjects that they would ruin the project or do serious harm to the individual if the shocks were not administered as ordered.

The study was replicated in 2008 at the University of California at Santa Clara ... with the same results.

Mr. Adams writes:

For many years, psychologists speculated the original studies must have somehow been flawed. Humans beings couldn't be so cruel and gullible, could they? But now this repeating of the study immediately clobbers any debate on the subject and forces us all to confront the terrible reality: Most human beings of all ages, races, religions, cultural upbringings and professions will actively torture, harm and even kill fellow human beings if ordered to do so. [Emphasis in the original]

Why is this important to understand? Because it explains the sheeple effect that's so dominant in society today. Why do consumers obey apparent authorities so blindly? Why do they do what they're told even when it goes against all common sense and their own ethics?

According to Mr. Adams, we were all raised to be mind slaves:

Think about it: From the very first day you go to kindergarten, you're punished for getting out of line (literally), talking out of place, expressing your own ideas or refusing to follow commands. This psychological brow-beating goes on for thirteen years, and it's enforced by most parents, counselors and other authority figures.

And in most universities, the browbeating continues through the college and graduate school years. Very few of us are really taught to think for ourselves.

He cites a common example of this kind of conditioning, done at Costco and Sam's Club:

[P]eople just wait at the exit for some lame worker to check their receipt and mark it with a pen. People actually line up like cattle even after they paid for their stuff! I just walk out the door with the stuff I paid for, utterly ignoring the silly "receipt checkers" who keep screaming "Sir! Sir! Sir!" What I've learned is that after three or four screams, they just shut up and go back to the line of sheeple. Just slap on a pair of headphones, crank up your iPod and walk right out of the store, folks. Why are you giving up your Constitutional rights and submitting yourself to illegal search and seizure for a cart full of stuff you just paid for? [Emphasis added]

This explains the conundrum faced by libertarians. We want our people to be free, but only 30% of us know that we are not -- and even among that 30%, only about 3% of the population is motivated to do anything about it. Even intelligent people (or myself for that matter) sometimes get caught acting like one of the "sheeple." In everyday situations like the Costco one, it is probably harmless; but we need to heighten our awareness, so that we do not let ourselves be lulled into more harmful invasions of our rights, like the TSA scanners and police ID checks. 

The women's liberation movement realized that the first step to success was to raise the consciousness of the population to how women were being discriminated against. Libertarians need to do the same thing with the general population. I hope this post has been a small contribution in that direction.

Virtual buckeye to The Liberty Voice.

Update Dec. 7: Here is a concurring opinion from Bruce E. Levine at AlterNet. He cites eight reasons why young Americans are not fighting the system. I will refer you to the article to read the details, but here is the list:

1. Fear they cannot repay their student loan debt
2. Misuse of psychiatry and drugs to quell non-compliant behavior
3. Schools that educate for compliance and not democracy
4. "No Child Left Behind," a federal program that bases aid on test scores, which forces teachers to teach to the test, and not helping the child learn how to think for himself
5. Confusing the difference between education and schooling. Young people are taught that disliking school is the same thing as disliking learning.
6. Normalization of surveillance -- beginning at home as parents monitor their children's computers and social networking pages.
7. Television -- for sixty years, the opiate of the people
8. Fundamentalist religion and "fundamentalist consumerism," which destroy self-reliance and foster self-absorption.

The importance of Issue 3

Thomas Jefferson, father of nullification

I have a running argument with a friend on Facebook who sees no value to nullification; and I admit, his arguments are impressive and, from a legal standpoint, persuasive. He sent this letter to the Columbus Dispatch, which as far as I know, was not published:

Economically, Constitutionally, and Logically, Issue 3 is a lose-lose:

Regardless of your political leanings and view of the Affordable Care Act (ACA), Issue 3 is a bad proposition for Ohio. The amendment would cost taxpayers tens of thousands of dollars, result in needless litigation, and, in the end, leave us in the exact same place as now.

Throughout our 200 year history, state-level nullification of a federal law has been attempted on numerous occasions, always with the same results. The Supreme Court consistently has found that states do not have a right to ignore or override a law enacted by the federal government. (e.g., McCulloch v. Maryland, Osborn v. Bank of the United States, Cooper v. Aaron). With 200 years of precedent against nullification, what makes us think that this will be any different?

This time, it won't be any different – Ohio will not be allowed to nullify the ACA. The state will spend tens of thousands of dollars, and countless man-hours, defending a losing battle. Instead of being able to 'opt out' of the ACA, we will be back where we are now, only with a loss of money and time. Issue 3, in the end, will change nothing. 

If Ohioans see Issue 3 as the end of the matter, it will change nothing; because, as my friend writes, it has no legal standing. Nullification does not repeal a federal law, no matter how unconstitutional that law may be. Whether it can stop an unconstitutional federal law within its own state depends on how the battle of wills between the people of Ohio and the federal government plays out, as I shall explain presently.

In 1798, Congress passed the Alien and Sedition Acts, which greatly restricted freedom of speech. Because of the First Amendment, the Acts were grossly unconstitutional; but there was no case to bring before the Supreme Court (before it was generally acknowledged that the Supreme Court could rule on the constitutionality of a law). Thomas Jefferson and James Madison held, in the Kentucky and Virginia Resolutions, that when all else had failed, the states had a right to prevent enforcement of an unconstitutional federal law within its boundaries. The nullification resolutions started a political uproar that led to a new President and Congress in 1800, and the prompt repeal of the Alien and Sedition Acts.

In 1832, South Carolina passed a nullification ordinance against the federal tariff. President Jackson threatened force against the State of South Carolina if it attempted to block federal enforcement of the tariff. The resulting battle of wills led to a compromise, in which Congress repealed the provisions of the tariff that were most harmful to South Carolina, and South Carolina agreed to accept the amended law. 

These were two examples in which nullification succeeded, not as a legal act, but because it sent a clear signal to Congress that the acts being nullified were intolerable to the people of an entire state. In other words, nullification is not a legal act, it is a political one. There are also plenty of examples in which nullification attempts failed – because the issue being nullified was not compelling, or because the cost of upholding the nullification was greater than what the people of that state were willing to pay.

Normally, people will uphold the rule of law and use the court system when they collectively feel that the system is just and fair. In such times, nullification efforts will fail. However, when the people find that the law has become merely "an instrument of the tyrant's will" (as Thomas Jefferson wrote), then they will resort to extraordinary measures.

In American political theory, there are three political steps that can be taken when the people find that the law has turned against them:

1. They can vote the enactors of that law out in the next election, and elect a Congress that will repeal that law. But what happens when people perceive that system to be unjust, not just in the last few years, but over a generation or more?
2. They can, as Ohio's voters just did, turn to nullification, to send a strong message to the Congress that the Affordable Health Care Act of 2010 is infringing on the rights of the people to make their own health care decisions. Nine other states have made the same statement. But what happens if the federal government is determined to enforce its laws over repeated nullifications, or Congress is simply tone-deaf to the people it purports to represent?
3. A state has the right to secede. Secession, like nullification, is not a legal act even though it observes a legal process. Our Founding Fathers declared independence when it found a British Parliament that was tone-deaf to the pleas of the colonists. We may be approaching a time when, having tried and failed to repeal offensive legislation or to nullify it within the states; that separating ourselves becomes the only recourse that can be initiated peacefully. We have seen instances in the last twenty years in which secession abroad has been carried out in peace; but that does not mean that any such act can be done peacefully here.

I assert the right of secession as a natural right. A good argument can also be made, based on contract law, that the Constitution of the United States is a compact between the fifty sovereign (really, sovereign) states to provide for a common defense and agreed-upon services from a servant federal government. When the federal government rejects the authority of that Constitution, the compact is broken, and the states have the right to repeal their ratification of it. 

Failing all three, there is nothing that can be done within the legal process. If the federal government is determined to suppress secession by force, then we face a situation when (again quoting Jefferson) "the tree of liberty must be refreshed from time to time by the blood of patriots and tyrants."  In other words, we would have to resort to the natural right of revolution, just as thirteen Southern states found themselves having to do 150 years ago.

The best solution is for Congress to heed the calls of the several states to repeal the Affordable Health Care Act, Real ID, the USA Patriot Act, and other offensive legislation; and if it fails to do so, for the people to enact nullification ordinances all over the place until it does. But if the federal government is intent upon establishing a tyranny over us, we have the right to secede, before any of us resort to violence.

"All political power is inherent in the people. Government is instituted for their equal protection and benefit, and they have the right to alter, reform, or abolish the same, whenever they may deem it necessary…"  -- Ohio Constitution, Article I, Section 2.

Update Nov. 10: This is 213th anniversary of the adoption of the Kentucky Resolutions, written by Thomas Jefferson, against the Alien & Sedition Acts mentioned above.

I'M not laughing...

From the Raleigh News-Observer, via BigGovernment.com:* North Carolina Governor Bev Perdue suggests that Congress suspend the 2012 elections to fix the economy. Her staffers later tried to dismiss it as a "joke" or sarcasm, but as Publius at BigGovernment.com wrote, "If that was a 'joke' then Gov. Perdue may have the worst sense of comic tone and timing in history."

I have heard on occasion that the President has ambitions of becoming a dictator. In a speech July 27 to the Latin-American group La Raza**, President Obama

admitted that “the idea of doing things on my own is very tempting” when it came to dealing with Congress over the debt deal. And while he added the caveat that our democracy doesn’t work like that – the crowd was cheering the possibility of Obama side stepping Congress and doing things his own way. The whole scenario reminded Glenn [Beck] and Pat of (nerd alert) the scene in the Star Wars prequel where Palpatine grants himself emergency powers – effectively making him The Emperor – as the Senate cheers on. Pat even played audio from the scene where Natalie Portman’s character says, “This is how liberty dies, with thunderous applause.”

Gov. Perdue's remark, then, might actually be a trial balloon for suggesting a suspension on a national level.

I'm not sure whether this makes it scarier or more comforting -- we've heard this before in rumors prior to 2008 that Homeland Security (during the Republican Bush Administration) might suspend that election in the event of a terrorist attack (see article by Michel Chossudovsky in the Canadian Global Research site for details)

This is close enough to my Trigger #1 to justify Ohio independence. Once a suspension is put into place,  there is no assurance that it will ever be lifted.

* And many other places. This is one video that has "gone viral" on the Internet.

** German translation: Das Volk. Choice of language intentional.

Triggers to Ohio independence

Yesterday, I suggested that the likely result of an Article V Constitutional Convention should be a trigger to Ohio independence. Here is a more complete list:

1. Replacement of the U.S. Constitution, or any amendment thereto that reduces the rights enumerated in the first ten amendments (Bill of Rights).
2. Establishing martial law or a state of emergency within any state without the consent of the legislature of that state;
3. Requiring involuntary servitude, or governmental service other than a military draft, for anyone of any age, except in punishment of crime (13th Amendment).
4. Surrendering any power delegated or not delegated to a corporation or a foreign government.
5. Federal Reserve Bank policy that induces a hyperinflation (a depreciation of the U.S. dollar at an annual rate of 20% or more).

This list is based on a state sovereignty resolution introduced in South Carolina in March 2009.

Update Sept. 24: Russell Longcore at DumpDC offers a concurring opinion. He believes that it will take a trigger like the ones listed above to enable a state to secede successfully. The one he considers most likely is #5.

Against secession, or a warning about secession?

This editorial, by R. Jagennathan in Firstpost, a national newspaper in India, criticizes a statement by Arundhati Roy favoring secession for Kashmir. While the opinion piece is clearly against secession in general (and not totally without reason), the most salient point is actually a warning to secessionists about what could happen if they get their way:

The writer, obviously, has not changed my mind on the subject, but the warning is worth repeating and remembering:

The most fundamental liberal value is the right to free expression of speech – within the limits set either by one’s own sense of decency or by law to ensure that our exercise of freedom does not curtail someone else’s...

The logic underpinning secession is this: every individual is free to be what he wants to be, subject only to the limitation that he does not transgress other people’s rights. What an individual is entitled to, groups of similarly committed individuals are also entitled to. This is where the right to secession comes from...




[S]ecession leads not only to ethnic separation, but the creation of new minorities of several kinds. It follows that those who want to secede must guarantee and demonstrate not only that they are willing to let their current minorities be, but also give the same demonstrable guarantees for minorities that may emerge in future.

The writer then shows how the partition of nations has led to greater ethnic and sectarian violence, particularly in the former Yugoslavia and in parts of the former Soviet Union. These points are valid; however, the article lost me with this politically correct but historically incorrect blunder:

Abraham Lincoln went to war with the American south – his own conservative minorities. He fought for the idea of freedom – which is about living together and sorting out our issues through dialogue and compromise.

No, Abraham Lincoln fought for the idea of central government. He injected into the American soul a virus that has slowly killed off the idea of freedom -- a virus that may soon kill the patient. Ethnic and religious groups who have been persecuted by their governments have the human right to form their own nations when all other recourse is lost -- but they then have the obligation, once independent, to guarantee freedom to their own minorities.

In the American context, secession is the last step toward protecting a free society when all others have failed. In the past, I recommended that we wait until nullification has run its course; but nullification assumes a respect for the Constitution by both the federal government and by the people. Unfortunately, the federal government has persistently shown a contempt for the Constitution, and too many of the people are ignorant of what their Constitution means. Consequently, the time is right to begin considering Ohio's secession from the Union. Ohio is itself a diverse society, bound together by a common language, a commonly-understood legal tradition, and a Constitution whose protection of freedom is superior to that of the U.S. Constitution.

The risks that R. Jagennathan wrote about do not apply to us; so we should not allow them to become stumbling blocks in our struggle for freedom.

Independence is drawing academic interest

Alan Caruba at LewRockwell.com has read the book Rethinking the American Union for the Twenty-First Century, a scholarly anthology edited by Donald Livingston of Emory University in Atlanta, to be published in October by Pelican Press.

After reading the book, Mr. Caruba observes that "clearly the central government has grown so large, so unwieldy, so wasteful, and so unresponsive to the problems and costs it has imposed that people are beginning to wonder why 435 Representatives in the House and 100 in the Senate should control the lives, the economy, and the education of more than 300 million people in fifty sovereign States.
The President virtually makes law with 'executive orders' and the nine members of the Supreme Court exercises final authority of the constitutionality of laws. Congress is so divided by raw partisanship it is barely functioning."

“The only remedy,” says Prof. Livingston “is territorial division of the Union through secession into a number of different and independent political units.”

Professor Livingston then observes that the "arrogant social engineers" on the U.S. Supreme Court feel free to strike down state laws at will. He urges the states to "reassert their sovereignty under the Ninth and Tenth Amendments and recall those powers they have allowed to slip out of their hands to the central government."



Mr Caruba continues:

This is not a call for anarchy. It is the realization that the modern presidency has aggregated to itself powers it does not have or, in the case of Libya, is ignoring the War Powers Act that limits its ability to engage the nation in conflicts Congress does not ultimately authorize.
 
It is the realization that every United Nations treaty the United States signs deprives it of its sovereign rights.

It is a call for consideration that regional groups of States with common interests might provide better government within such groups, leaving to the central government the responsibility to protect the nation via a common military, conduct foreign affairs, and return to the gold standard that would protect the value of a common currency...

When one-in-five Americans give credence to the right of secession, it is clear that the problems being experienced in all fifty States, the massive regulation of all activities within those States, the imposition of a centralized “core” curriculum to be taught in all schools, is arousing a rediscovered sense of liberty among Americans.

Mr. Caruba and Prof. Livingston provide further evidence that an idea that was considered wacky three years ago has entered respectable public debate, precisely because the usurpations of this President and the neglect of this and the previous Congresses to check those usurpations have awakened the American people to the fact that more drastic measures will become necessary, if we are to regain our liberties.

For myself, I would prefer that Ohio go it on its own as an independent Republic. With 11.5 million people, a land area of 40,000 square miles, and what would be about the 20th largest economy in the world if no larger state seceded, we would actually be a bit larger than the average nation out there today. However, I can see some advantages to forming a very loose "Confederation of the Great Lakes," but only if it follows the example of Switzerland and writes a constitution that consciously keeps the confederate government as weak as possible.

The window is opening for a serious discussion of independence in Ohio. My question to the reader is, how do we most effectively introduce it?

Prophecy of the decade

Ron Paul predicting the present from his speeches, 1998-2002. I agree with the conclusion, we should elect Ron Paul in 2012 -- if it won't already be too late...

Oath Keepers: Obeying the Constitution

Oath Keepers is an organization of active duty military and police forces who recognize that, upon joining, they have taken an oath to uphold the Constitution of the United States (and in the case of police forces, that of the state in which they are working). In support of that oath, there are certain orders they will not obey. Here is the short list. Additional comments, made by Oath Keepers founder Stewart Rhodes, may be found at DumpDC.

1. We will NOT obey any order to disarm the American people.

2. We will NOT obey any order to conduct warrantless searches of the American people, their homes, vehicles, papers, or effects — such as warrantless house-to house searches for weapons or persons.

3. We will NOT obey any order to detain American citizens as “unlawful enemy combatants” or to subject them to trial by military tribunal.

4. We will NOT obey orders to impose martial law or a “state of emergency” on a state, or to enter with force into a state, without the express consent and invitation of that state’s legislature and governor.

5. We will NOT obey orders to invade and subjugate any state that asserts its sovereignty and declares the national government to be in violation of the compact by which that state entered the Union.

6. We will NOT obey any order to blockade American cities, thus turning them into giant concentration camps.

7. We will NOT obey any order to force American citizens into any form of detention camps under any pretext.

8. We will NOT obey orders to assist or support the use of any foreign troops on U.S. soil against the American people to “keep the peace” or to “maintain control” during any emergency, or under any other pretext. We will consider such use of foreign troops against our people to be an invasion and an act of war.

9. We will NOT obey any orders to confiscate the property of the American people, including food and other essential supplies, under any emergency pretext whatsoever.

10. We will NOT obey any orders which infringe on the right of the people to free speech, to peaceably assemble, and to petition their government for a redress of grievances.

Oath Keepers understands that the purpose of the military is to protect the lives, liberty, and opportunity of a free people, not to crush them. Now, if we can get the American people and their elected officials on the same page...

Hillary Clinton: Obama administration will ignore Congress on Libya war

Now, the Obama Administration is in open defiance of the Constitution. As reported by Politico, New American and most of the right-wing and libertarian blogosphere: Secretary of State Hillary Clinton told a classified congressional hearing that the Obama regime would ignore Congress if it tried to rein in the unconstitutional war in Libya, but that the administration would send press releases to lawmakers, according to news reports.

Please raise he!! with your Congressmen and U.S. Senators. If we do not draw a line in the sand now, the Constitution will be a dead letter. We can also use this to demand that Gov. Kasich refuse to send Ohio National Guardsmen to Libya, or any war for which Congressional authorization has not been received.

Why we should not call a Constitutional Convention

I have discussed this thoroughly before. One of the reasons is that a Constitutional Convention can get out of control, just as the convention to amend the Articles of Confederation did in 1787. The result could be an entirely new Constitution, like that proposed by Rexford P. Tugwell in 1974, called the "Constitution of the Newstates of America." *  In it, you will see that the Federal Government would be given the power to abolish States, reducing them to administrative units with less freedom of action than our counties have today.

* The original link to this document was through the site of an anti-Semitic hate group.  A friend found for me a neutral link to present the same document.

How the feds claim authority for indefinite detention

A commenter sent me a personal e-mail asking a question about "If this isn't unconstitutional, nothing is" from yesterday. He asked, 

I'm assuming this is referring to Executive Order 13567. I didn't read it thoroughly, but I wasn't able to find the section that claims this right on first scan.

Can you comment on which section of Executive Order 13567 claims this right?

I studied the Executive Order, and was stumped too. I consider Andrew Napolitano to be a highly trustworthy source, and was surprised that he came up with this without further backup. I did some further research. The fact is, this assertion is not new to this Executive Order. Here is how I answered the commenter:

The answer in Executive Order 13567 isn't obvious. Section 2 holds that continued detention is warranted if it is necessary "to protect against a significant threat to the security of the United States." There is no independent assessment as to what a "significant threat" is. Practically anything the President has wanted to do in this area since 1945 can be, and has been, justified on the basis of "national security."

The second warning comes from section 1(b), which that this is a "discretionary process of review" that "does not affect the scope of detention authority under present law."  The periodic review process strikes me as being the reverse of a show trial. It pretends to offer a way for the detainee to be released, but a careful reading of section 3 in light of the other two sections suggests to me that it does no such thing. It's a completely non-binding review.

The "scope of detention under present law" where it applies to foreign nationals, is vast. The issue of detention after acquittal arose in an article by Joan McCarter for The Daily Kos (not exactly a right-wing publication), entitled "Presidential Post-Acquittal Detention Power." Quoting testimony from the Senate Armed Services Committee July 7, 2009, Defense Department General Counsel Jeh Johnson gave this reply to a question by Sen. Mel Martinez (R-Florida):

Martinez looked surprised. "So the prosecution is moot?" he asked.

"No, no, not in my judgment," Johnson said. But the scenario he outlined strongly suggested it is. If an administration review panel "determines this person is a security threat" and "for some reason is not convicted of a lengthy prison sentence, I think we have the authority to continue to detain someone" under "law of war authority" as granted by the September 2001 Authorization to Use Military Force, Johnson said. And beyond that source of authority "we have the authority in the first place."

Continued detention without trial, or after acquittal, is an egregious violation of the Fourth and Fourteenth Amendments.

Questions: If we do not uphold our own Constitution, how can we say that we stand for freedom under the rule of law? And if we cannot say that we stand for freedom under the rule of law, by what moral authority are we conducting this so-called "War on Terror"?

If this isn't unconstitutional, nothing is.

Judge Andrew Napolitano substituting for Glenn Beck on Fox News, reported that President Obama has signed an executive order claiming the right to keep persons incarcerated at Guantánamo Bay for life, even after acquittal. This power is unprecedented in Western history. Not even Hitler or Stalin went this far.

Bottom line:

Why should you care about this? Because if the government gets away with it by demonizing these prisoners and making it the popular thing to happen, it could happen to you.

And if this isn't a "high crime or misdemeanor" under the Constitution, nothing is. One commenter to the posting on a site that quoted this described our future in America as "hell on earth." If this trajectory isn't corrected soon, that commenter is likely to be proven right.

Lame Ducks and the Seventeenth Amendment

My good friend and Ohio blogger Brian at Repeal the Seventeenth Amendment writes an interesting analysis of how Congressional "lame duck" sessions work, paying particular attention to the ambitious agenda pursued by the lame duck session of the last Congress. He points to Progressivism as the engine that made such a session possible, in contrast to past practice, in which ethical considerations generally made such sessions relatively inactive.

There is another interesting point that Brian did not explicitly mention: Repealing the Seventeenth Amendment would reduce the motivation for aggressive action during the lame duck sessions. Senators, while limited to six-year terms, served essentially at the pleasure of their state legislatures. Since they were not directly accountable to the people, they knew they (or their successors) would still have to consider the interests of their state. Therefore, the changes from one election to the next at the Senatorial level would be less pronounced. Items that the House pushed through in the heat of passion would surely be delayed or at least given more sober consideration by the Senate.

Lame duck sessions expose the downside of democracy. Having a Senate that is elected by the state legislatures is admittedly undemocratic, but paradoxically is better able to preserve free government. I think this is a good tradeoff.

Health care ruling: Victory or Trojan horse?

Judge Vinson's opinion has been published, and is available here. While many hail it as a victory for conservatives and liberty loving people, it is too soon to call it a victory. The decision, as I noted yesterday, is virtually certain to be sent up to the U.S. Court of Appeals and to the U.S. Supreme Court.

However, the Tenth Amendment Center adds another cautionary note in a news release issued today, reposted below in full. (The release was e-mailed to The Ohio Republic, but you may view a similar blog post on the Tenth Amendment Center site). The Center believes the ruling, by accepting federal authority over health care in general, is not going far enough to protect us from government intrusion, and may actually be a "Trojan horse:"

While many conservatives laud yesterday's ruling by U.S. District Judge declaring the federal health care bill passed last year unconstitutional, analysts at the Tenth Amendment Center displayed significantly less enthusiasm, calling the ruling a Trojan Horse.

“According to Vinson – and just about everyone else in the federal judiciary – the federal government actually does have the authority to control, reform, and regulate the health care industry. They’re just going about it wrong,” TAC executive director Michael Boldin said. “This is seriously dangerous for those who believe that the founders’ Constitution needs to be followed: every issue, every time, no exceptions, no excuses.”

As James Madison explained, the commerce clause was intended to make trade “regular” between the states, primarily to prevent interstate tariff wars. Madison wrote:

“It is very certain that [the commerce clause] grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government.”

In other words, the framers never envisioned Congress regulating entire industries.

“The feds are authorized to make commerce in health care across state lines, 'regular' – that’s for sure. But this power is far less than anything that’s been proposed by either political party in….well, probably about forever,” Boldin said.  

The Center's director pointed out a "better option" for those yearning for just a little decentralized freedom.

“State nullification of the federal health care law – every single word of it, as it should be.”

In fact, 11 states have bills before their legislatures in an attempt to do just that.

As reported earlier, a bill has already been introduced requiring the Ohio General Assembly to approve any expenditures by a state agency in support of the Patient Protection and Affordable Care Act (HB 11); and the Ohio Project continues to gather signatures on its petition.

Perhaps a sounder and more efficient strategy would be for the Ohio General Assembly to pass an act similar to the one introduced in those 11 states.